The stock corporation ( AG ) under German law is one of five forms of corporation alongside the GmbH , the UG (limited liability) , the SE and the KGaA . The legal basis can be found in the first book of the Stock Corporation Act (AktG).
In 2017, 407 stock corporations were listed on the regulated market of Deutsche Börse . In 2010 the number was 605. The number of stock corporations and limited partnerships on stocks in Germany was between 2,000 and 3,000 from 1960 to 1992. By 2004 it rose to 16,002 and has since fallen: 12,000 in September 2012. In the 25 years from 1990 to 2014 there were more than 15 IPOs / year in only the following 10 exceptional years: 175 1999, 142 2000, 79 1998, 1990 , 1997 and 2006 32-36, 2007, 2001, 1995 and 1991 19-25.
The AG can be founded by one or more natural or legal persons or partnerships with legal capacity who take over the shares in return for contributions ( AktG). The social contract - the articles of association must - notarially certified will. In contrast to the GmbH, it is not possible to set up a company using a sample protocol.
The foundation takes place in three phases:
- the pre-founding company (pre-founding consortium),
- the Vorgesellschaft (Vor-AG) and finally
- the incorporated company.
The pre-founding company exists until the notarial certification of the articles of association (establishment of the articles of association) and is usually a company under civil law with the corporate purpose of establishing the company (by concluding a notarial contract). If a trade is already being carried out before the notary visits , it is an open trading company . Of course, such a partnership requires at least two founders - if there is only one founder, this stage is not applicable.
Between the notarial determination of the articles of association and the entry of the AG in the commercial register - even if there is only one founder - there is a previous company ( Vor-AG ). According to today's view, the law of the stock corporation is largely applicable to these. The Vor-AG is (partially) legally capable and can be used in the traffic under the future company with the addition "i.Gr." take part. It already has a board of directors, a supervisory board and a general meeting. The AG was only created "as such" when it was registered ( (1) AktG).
The subscribed capital of an AG is called share capital . The share capital of an AG in Germany is at least 50,000 euros and is divided into shares . It is raised through the acquisition of the shares by the founder (s). In the case of a cash formation, it is sufficient that 1/4 of the nominal amount of each share is paid in, (1) AktG (a total of at least € 12,500 - exactly as much as a GmbH ). If the shares were issued above the issue price (called “premium” or “premium”), the full premium must be paid prior to the formation (cf. (1) AktG).
There are par value shares and no- par shares , (2) and (3) AktG. Par value shares are made out to a specific par value. The minimum nominal amount of a share is one euro. Higher nominal amounts must be in full euros. In the case of no-par shares, a percentage of the company's share capital is given. However, no quota is noted on the share, since this can change in the event of a capital increase (e.g. through the issue of further shares) or reduction.
Formation report and formation audit
The establishment of the stock corporation is to be established by the management board , the supervisory board and in certain cases (e.g. in the case of material foundations or if the founders are also members of the management board or supervisory board, (2) AktG; exception in AktG) by a competent third party (e.g. B. auditor or tax advisor ). The founding auditors are appointed by the court after hearing the Chamber of Commerce and Industry and are obliged to prepare an audit report. In the case of cash formation (especially in the case of the founding and the board of directors / supervisory board being the same person), the establishment review can also be carried out by the notary who certified the establishment.
Registration for the commercial register
All founders, the first board of directors and the first supervisory board must register the founded company in the commercial register ( (1) AktG). The AG only becomes a legal person when it is entered in the commercial register. The entry has a constitutive character at the AG ( (1) AktG). Since the AG is a corporation, it is entered in section B of the commercial register.
Liability prior to registration of the AG
For claims made before the notary's visit, i.e. H. were created prior to the "establishment" of the company ( GbR or OHG , its partners (i.e. all founders) are also directly liable to the creditors as joint and several debtors ( sentence 1 HGB) (analogous to the GbR). The liabilities established in this way are only transferred to the previous AG or the later AG on the basis of a special agreement.AktG), the pre-founding company is liable in the case of several founders or, in the case of a single founder, this company is personally liable. Since the pre-founding company is a
If the parent company - not yet registered in the commercial register - is doing business, it is liable with its assets, if one has already been formed. According to h. M. similar principles (pre-encumbrance liability, loss coverage liability) as in the Vor-GmbH - whereby a default liability of the co-shareholders fails due to the lack of a norm corresponding to GmbHG. Finally, there is (as in the Vor-GmbH) a legally prescribed agent liability , (1) AktG. Due to the Disclosure Directive, this applies uniformly to all corporations founded in any member state of the EU. According to this, those who act for the previous company are jointly and severally liable to the creditors for the obligations established by them.
When the AG is entered in the commercial register, the agent's liability expires. In addition, all liabilities of the previous company are automatically transferred to the AG. If at this point in time the net assets of the company (taking into account the debts of the previous company) are less than the capital stock specified in the articles of association, the founders are obliged to replenish the capital proportionately up to the amount of the sub-balance sheet.
General meeting (decision-making body)
The general meeting of the stock corporation consists of all shareholders .
The position of the general meeting has been weak since the AktG 1937, unlike the general meetings of other associations and corporations such as the GmbH . The general meeting can not issue any instructions to the executive board, which is authorized to manage the business , in matters relating to management (differently from Section 235 (1) HGB old version of 1900). The general meeting can only decide on management issues if the board of directors so requests ( (2 ) AktG ).
The rights to which the Annual General Meeting is entitled today are:
- Decision on amendments to the articles of association (basic business), in particular on capital measures (capital increases, conditional capital, capital reductions, etc.);
- Appointment and dismissal of the members of the supervisory board (which in turn appoints the management board)
- Discharge of the executive board and the supervisory board;
- only if the management board and the supervisory board so decide: Approval of the annual financial statements ; otherwise the general meeting only accepts the annual financial statements approved by the management board and the supervisory board ( , AktG);
- Use of net profit;
- Appointment of auditors, auditors for formation processes and the management of the board of directors;
- Appointment of special auditors ( AktG)
- Transfer of the entire company assets ( AktG);
- other management measures that affect the core competence of the general meeting to decide on the fate of the company, and in their effect come close to that of an amendment to the articles of association;
- Dissolution of the company.
The general meeting must be called with a notice period of at least 30 days (AktG), stating the agenda. No resolutions may be passed on items on the agenda that have not been properly announced. General agenda items such as B. Various things are therefore not permitted ( AktG). The articles of association can stipulate that resolutions can only be passed if a quorum, i.e. a certain minimum number of votes, is represented in the general meeting or takes part in the vote ( AktG).
In principle, the voting right in the general meeting is exercised according to the nominal amount of the shares and, in the case of no-par shares, according to their number ((1) sentence 1 AktG), although the Articles of Association according to sentence 2 can also provide for a different regulation.
Multiple voting rights are the special rights of a shareholder based on the articles of association to cast more votes than corresponds to his participation. A shareholder then has above-average voting rights with regard to the capital stake. Multiple voting rights were mainly issued from 1920 to 1923, at a time of high inflation, to protect against so-called foreign infiltration. Since 1998 they have been prohibited in Germany by the law on control and transparency in the corporate sector . Existing multiple voting rights lapsed within a transitional period of five years in exchange for adequate compensation of their value. The supreme authority of a country responsible for the economy can, however, grant multiple voting rights if these are necessary to safeguard predominant macroeconomic interests. Provisions on multiple voting rights are regulated in (2) sentence 1 AktG. The limitation of voting rights to 20% regulated by the VW law, together with the statutory right of the federal government and the state of Lower Saxony to send two representatives each to the supervisory board, which also gave the public sector a higher voting weight than its percentage participation according to the European Court of Justice, violates the free movement of capital.
Unless otherwise provided in the articles of association of the stock corporation or regulated by law, a simple majority applies for votes ( AktG). For some resolutions, such as an amendment to the articles of association ( AktG) or the liquidation of the company (referred to as liquidation in the AG : § ff. AktG), the approval of at least three quarters of the share capital represented at the general meeting is required. The so-called blocking minority is sufficient to prevent these resolutions .
A stock corporation is managed by the board of directors in accordance with(1) AktG, which as a rule consists of several people. It is not bound by instructions, but the general direction of its work is controlled by the Supervisory Board. If there are several members of the board of directors, one of the board members is often appointed chairman of the board of directors, less often also spokesman for the board, or the board of directors elects a board spokesman.
The members of the management board are appointed by the supervisory board for a maximum term of five years ( service contract ) between the stock corporation, which is represented by the supervisory board ( (1) AktG) and the board member, the mutual rights and obligations, in particular the remuneration during and after the end of his term of office, are regulated.(1) AktG). A new appointment is permitted. A member of the management board can be dismissed by the supervisory board if there is an important reason ( (3) AktG). In an employment contract (
The board of directors calls the ordinary and extraordinary general meetings. He represents the AG externally (in and out of court); he is responsible for overall management authority and overall power of representation (e.g. bookkeeping , annual financial statements ).
Each member of the Board of Management is personally liable to the company in accordance with D&O insurance" for short ), which protect the board members from claims for property and financial damage in the event of negligent behavior. In the event of damage caused by gross negligence or willful action, however, the insurance does not apply, so that the company can claim against the management board to protect the shareholders. In addition, the Act on the Appropriateness of Management Board Remuneration (VorstAG) introduced a mandatory deductible to be agreed with the insurer in the amount of 10% of the damage up to the amount of 1½ annual salaries. However, the Board of Management can in turn change this deductible according to h. M. insure, even if only at your own expense.AktG, i. H. with his or her personal assets, for damage that the company incurs as a result of a culpable breach of duty (e.g. breach of the duty of care of a prudent and conscientious manager). However, the companies usually take out special professional liability insurance for the actions of the board members (so-called "Directors and Officers insurance", or "
The supervisory board (AR) elects the members of the management board and monitors the management board's activities ( (1) in conjunction with (1) AktG). The Supervisory Board also represents the AG vis-à-vis the Management Board members. The supervisory board is led by the chairman of the supervisory board. The term of office of the Supervisory Board is a maximum of 4 years ( (1) AktG). In addition, the Supervisory Board is responsible for appointing the auditor.
A shareholder owns a share in a stock corporation ( (1) AktG). Shareholders provided the company with equity when the company was set up or subsequent capital increases, or they acquired the shares by transferring them from previous owners. In general, they exercise their rights by attending the general meeting, by their right to information and to dividends and, if applicable, to liquidation proceeds.
The rights of the shareholders are:
Property rights (through the investor's share in the company's assets)
- Dividend right (participation in the balance sheet profit)
- Subscription right (preservation of the share in the share capital in the case of capital increases)
- Share of liquidation proceeds upon dissolution of the AG
Administrative rights (safeguarding the interests of the shareholders)
- Right to propose to general meetings
- Right to participate in general meetings
- Voting right at general meetings
- Right to information on company matters that are necessary for the assessment of items on the agenda at the general meeting
- Right of contestation in the event of suspicion of non-statutory resolutions at the general meeting
In the case of listed stock corporations, these rights can be transferred to the custodian bank (for one or all general meetings over a maximum of 15 months). A transfer to other legal or natural persons (association, business partner, friends, acquaintances) is also possible. With the transfer of voting rights, certain behavior in voting can be commissioned.
Non-voting preference shares restrict the rights of shareholders, although they are generally compensated by a higher dividend.
In addition to founding your own stock corporation, you also have the option of buying an AG that has already been founded. These so-called shelf companies , which have not carried out any business activity since their foundation, are sold with fully paid-up share capital.
By excluding minority shareholders , the majority shareholder in Germany can, under certain conditions, exclude all remaining minority shareholders in exchange for compensation.
The small joint stock company
In 1994, the Stock Corporation Act was changed by the “Law for Small Stock Companies and the Deregulation of Stock Corporation Law”. However, the small stock corporation as an independent legal form does not exist. However, the legislature has introduced a number of regulations in the AktG, which are easier for small stock corporations to comply with and thus opened the legal form of the AG to small and medium-sized companies.
The investment stock corporation (InvAG) is a special case of an investment company with variable share capital, which, in addition to the special assets, represents the possible legal shell for investment funds.
The European stock corporation (Societas Europaea, SE)
The European stock corporation , also known in Latin as Societas Europaea and abbreviated as SE, is a stock corporation under European law to which the national law of the country in which it has its registered office is to be applied. An SE based in Germany is therefore primarily subject to European and secondarily to German company law, which is why it can also be viewed as a special form of AG.
The AG & Co. KG
The AG & Co. KG is a limited partnership whose general partner is not a natural person (then it was a simple limited partnership), but a stock corporation. It thus resembles the much better known GmbH & Co. KG , which is also a limited partnership, but in which the personally liable partner is a GmbH. Thus, the AG & Co. KG is not a special form of the AG, but a special form of the KG.
Ancillary service stock corporation
The ancillary service stock corporation is a stock corporation in which the shareholders are obliged to provide additional services in addition to their capital contribution that are recurring and do not consist of cash benefits.
The Brandenburg-African Company is the first German stock corporation . It was founded on March 17, 1682 by Edict Friedrich Wilhelm, Elector of Brandenburg, as a trading company on the coasts of Guinea in order to mobilize the necessary resources to trade in pepper, ivory, gold and slaves on the African coast. At that time these were the first companies in the form of "real" stock corporations.
This was followed by the establishment of the Emden trading companies , the Grain Company on the Oder in Prussia in 1770 and the Berlin sugar boiler in 1793 .
From 1794, the General Land Law (ALR) also regulated company law in Prussia . Accordingly, there were corporately constituted societies ( societas personarum ), which, in addition to permitted and prohibited private companies, also provided for privileged companies as well as corporations and communities . The legal form of the "stock corporation" was not yet mentioned in this law. Individual regulations such as the "Code de Commerce" of 1807 developed. Preliminary work for a German stock corporation law was already under way in the context of the general legislative revisions from 1817. At that time, however, stock corporations were intended to be a non-profit association.
In 1821 the Rheinisch-Westindische Companie was founded to promote exports and gain new overseas markets .
The first German stock corporation law ( law on stock corporations ) came into force on November 9, 1843 by resolution of the Prussian king.
The General German Commercial Code (ADHGB) was passed by the Federal Assembly on May 31, 1861 and contained in the second book legal provisions for the formation of stock corporations and limited partnerships based on shares.
On June 11, 1870, the 1st amendment to the law on companies (“Law, concerning limited partnerships based on shares and stock corporations”) came into effect through the resolution of the Reich Law for the North German Confederation. This exempted the stock corporations from state approval (so still Art. 208 ADHGB 1861) and supervision and created private law normative conditions, i. H. every corporation had to have a board of directors . The articles of association had to include the principles according to which the balance sheet should be drawn up and the profit calculated, as well as the manner in which the balance sheet was audited. The minimum amount for one share was set at 50 Vereinsthalers. To what extent the change in stock corporation law in Germany changed the corporate culture and shaped the early days of the company , the following figures show: Between 1867 and 1870, 88 joint stock companies were founded in Prussia, and between 1871 and 1873 there were 843 new companies. The share capital rose from 473 to 1,163 million.
The year of birth of the modern German stock corporation is generally considered to be the 2nd amendment to stock corporation law (“Law concerning limited partnerships based on stocks and stock corporations”) to the General German Commercial Code, which came into force on July 18, 1884 . The supervisory board is subject to comprehensive audit obligations B. imposed when establishing a partnership limited by shares or a stock corporation. KGaA or AG could have the audit of the balance sheet carried out by special auditors (external auditors). Under certain conditions (see Article 209h of the 2nd amendment to stock corporation law), companies had to have their annual financial statements checked by special auditors.
The commercial code of May 10, 1897 replaced the ADHGB of 1861.
As a result, initially only two emergency ordinances were issued on September 19, 1931 and October 6, 1931. A major reform took place with the Stock Corporation Act of January 30, 1937; this in turn was modified by numerous emergency ordinances.
In 1959 there was an early “small” reform of the company law before the 1965 Stock Corporation Act and the Introductory Act to the Stock Corporation Act, which form the basis of today's legal situation, were promulgated.
The stock corporation law was then changed through numerous minor reforms, some of which are referred to as “stock corporation law reform in the long run”. The last major reform was the Act to Implement the Shareholder Rights Directive of July 30, 2009.
- Tobias Bürgers / Torsten Körber (eds.): Stock Corporation Act , 2nd edition. CF Müller. Heidelberg 2011. ISBN 978-3-8114-3532-2 .
- Wilhelm Happ (Ed.): Stock corporation law, manual - sample texts - commentary , 3rd edition. Heymanns. Cologne 2007, ISBN 978-3-452-26339-1 .
- Thomas Heidel (Ed.): Company law and capital market law. Commentary , 3rd edition. Nomos. Baden-Baden 2011, ISBN 978-3-8329-5606-6 .
- Uwe Hüffer: Stock Corporation Act. Comment. Verlag CH Beck, 9th edition. Munich 2010, ISBN 978-3-406-60077-7 .
- Paragraph 70 of the AktG in 1937 introduced the freedom to issue instructions to the board of an AG as a so-called “leader principle”, for more details see Hopt / Wiedemann AktG Großkommentar marginal no. 148 ff.
- BGHZ 83, 122 = NJW 1982, 1703 (Holzmüller); BGHZ 159, 30 = NJW 2004, 1860 (gelatine I)
- ECJ, judgment of October 23, 2007 - C-112/05 - NJW 2007, 3481 "VW Law"
- Federal Law Gazette 2009 I p. 2509
- Manz in Manz / Mayer / Schröder, Die Aktiengesellschaft - Comprehensive explanations, examples and sample forms from legal practice, 6th edition 2010, Rn. 1054j
- BGBl. 1994 I p. 1961
- Walther Hadding / Erik Kießling: Beginnings of German Stock Corporation Law: The Prussian Stock Corporation Act of 1843 (p. 161)
- Walther Hadding / Erik Kießling: Beginnings of German Stock Corporation Law: The Prussian Stock Corporation Act of 1843 (p. 164)
- General German Commercial Code, accessed on November 11, 2015
- The Commercial Code for the German Empire
- RGBl. I p. 493
- RGBl. I p. 537
- RGBl. I p. 107 corrected 588, 1140
- Aktiengesetz, BGBl. 1965 I p. 1089 , Introductory Act, BGBl. 1965 I p. 1185
- Wolfgang Zöllner: Permanent reform of stock corporation law - What will happen to the rights of shareholders? . In: AG 1994, p. 336