Actio pro socio
Actio pro socio (lat .: action as partner ) is a term from the German company law and is the legal assertion of society result attributable social claims by a single shareholder . The individual partner asserts the right of the company in his own name as a litigator for the company. It is an instrument for the protection of minorities or the protection of shareholders excluded from management. The shareholder should be protected against, for example, that the majority induces the management not to assert social claims against (majority) shareholders and thus damage the company's assets. The Federal Court of Justice has expressly approved the actio pro socio and stated:
"Since the contractual obligations of each partner are based on the articles of association, and all partners are partners in this contract, each of them is fundamentally entitled to the fact that the other fulfills the obligations assumed by him."
A distinction is made between the actual actio pro socio, in which the shareholders' claims are asserted against co-shareholders, and the actio pro socio in the broader sense, in which the company's claims are asserted against non-shareholders.
The Latin expression translates as “lawsuit as a partner”. The partner sues the rights of the company himself, ie "in his capacity as a partner". The Latin preposition pro does not mean “for” but “as”.
Actio pro socio
This concerns the assertion of claims by the company against co-shareholders. This institute is commonly referred to as the actio pro socio. The claim results from the articles of association, in which the shareholders are obliged to act in the interests of the company in the sense of mutual fiduciary duties. In the first case, the shareholder therefore sues the actio pro socio of his own right to perform to the company. The limit for this is essentially good faith ).BGB (
Such claims, which a company can accrue from the corporate relationship, include, for example, claims to the performance of the promised contributions as well as claims for damages due to improper management or due to breach of other fiduciary obligations towards the company.
Actio pro socio in the broader sense
This concerns the assertion of a company claim by shareholders against non-shareholders if the company refuses to collect the debt for reasons contrary to society, for example because the sued company debtor is involved in the behavior contrary to society or a mixture of both types. Above all, these last two decisions are relevant for closed-end funds in the form of a KG and, as far as the lawsuit against non-shareholders is concerned, correspond to the case law of the BGH, which recognized as early as 1963 that a shareholder could assert company claims against third parties under limited conditions can do.
However, the outside third parties are not involved in the articles of association and have not otherwise committed themselves to the plaintiff shareholder to meet their obligations to the company. Therefore, the case law sees this right of action as a case of (legal) litigation over a foreign law and thus as a case of interference in the management and representation rules, which can only be permitted under strict conditions. According to case law, this is permissible on a subsidiary basis if the authorized manager actually appointed should act, but does not act.
An example of an actio pro socio : The property management company consisting of partners A, B and C in the form of a civil law partnership has the right to payment of a contribution from its partners. While A is making his contribution, B and C, in collusive cooperation , refuse to make their contributions or to claim the other for payment of his contribution through a lawsuit by the company. In this case, A can assert the company's claim against B and C in their own name on behalf of the company, so B and C can sue for payment to the company.
This is particularly important if A, as the plaintiff, cannot represent the company in court because, for example, he is not authorized to represent the company under the articles of association. If he were so, he could assert his own right of society in its name and would not need an actio pro socio .
The right to take action against individual shareholders by way of actio pro socio is the direct outcome of the individual shareholders' membership rights.
The actio pro socio in other areas of law
The term actio pro socio , which originally came from company law, can also be used in constitutional law. The organ dispute proceedings according to Art. 93 I No. 1 GG, §§ 64 ff. BVerfGG also expressly recognizes the possibility that the applicant can complain that not his own rights, but also the rights of the organ to which he belongs, have been violated. Here, too, according to the consensus of the constitutional literature, what is meant is litigation in the sense of an actio pro socio. For example, a parliamentary group can complain that a right has been violated to which the GG is entitled not to the parliamentary group, but to the Bundestag as a whole.
The actio pro socio in other countries
The actio pro socio only exists in French law under the name action sociale . In French law, non-shareholders can be directors of a company, art. 1846 para. 1 C. civ. . If the company has suffered damage caused by the managing director through a breach of law, violation of the articles of association or management errors, it has to act against this managing director in accordance with art. 1850 para. 1 C. civ. a claim for damages.
However, only the managing director is authorized to represent, art. 1849 para. 1 C. civ. . He can enforce the claim on behalf of society against himself within the framework of an actio ut universi . In practice, however, it is extremely rare for a managing director to make demands on himself. This results in the need of the shareholders to enforce the claim for damages against the managing director on behalf of the company. According to art. 1843-5 para. 1 sentence 1 C. civ. is this possible for a single partner or several partners together within the framework of a so-called actio ut singuli . This legal standing is indispensable : the social contract cannot limit it, art. 1843-5 para. 2 C. civ. . It is also not possible to waive the claim for damages by means of a shareholder resolution, art. 1843-5 para. 3 C. civ. .
Alternatively, the shareholders can dismiss the managing director and instruct his successor to exercise an actio ut universi against the old managing director. As far as the company according to art. 1846 para. 1 C. civ. has several managing directors, they could take action against each other as part of an actio ut universi .
In a judgment of December 12, 2000 , the French Court of Cassation also emphasized that the actio ut singuli is a subjective right granted without restrictions to the shareholder of a Société Anonyme . This means that the latter can also exercise an actio ut singuli if an actio ut universi is carried out at the same time and can even appeal against a judgment issued against the company within the framework of an actio ut singuli if the board of directors waives it.
- Reinhard Bork , Klaus Oepen: Individual powers of action of the partner. In: Journal for Corporate and Corporate Law ZGR. Vol. 30, Issue 4, 2001, pp. 515-553, doi : 10.1515 / zgre.2001.013 .
- Munich Commentary on the Civil Code. Volume 5: Peter Ulmer (Red.): Law of obligations, special part. 3. (§§ 705–853), Partnership Law, Product Liability Law. 3. Edition. Beck, Munich 1997, ISBN 3-406-35815-2 , § 705 marginal number 171 with further references
- BGHZ 25, 47
- BGH NZG 2000, 199 ROHGE V, 201, 203; RGZ 54, 297, 300; 90, 300, 302
- Use of the term actio pro socio for social claims in BGHZ 10, 91, 103; BGH NZG 2000, 199; No use of the term actio pro socio for company claims from other relationships in BGHZ 10, 91, 103; 102, 152 ff. Use of the term actio pro socio as a generic term, however, by OLG Düsseldorf NZG 2000, 475
- RGZ 54, 297, 300; 76, 276, 278 ff
- RGZ 91, 34, 35; 158, 302, 313 f
- OLG Dresden NZG 2000, 248
- OLG Düsseldorf NZG 2000, 475
- BGHZ 39, 14
- Klaus Schlaich (founder), Stefan Korioth : The Federal Constitutional Court. Position, procedure, decisions. A study book. 9th, revised edition. Beck, Munich 2012, ISBN 978-3-406-63408-6 , Rn. 94; Herbert Bethge in: Theodor Maunz (founder), Bruno Schmidt-Bleibtreu , Franz Klein , Herbert Bethge: Federal Constitutional Court Act. Comment. Beck, Munich 2009– *, § 64 Rn. 74: "flawless case of litigation" .
- BVerfGE 90, 286, 342 f.
- Maurice Cozian / Alain Viandier / Florence Deboissy, Droit des sociétés, 30th edition, Paris 2017, p. 163.
- Maurice Cozian / Alain Viandier / Florence Deboissy, Droit des sociétés, 30th edition, Paris 2017, p. 164.