The shareholders , including shareholders ( English shareholder is) the owner of a share securitized share of the capital stock of a corporation or partnership limited by shares ( "limited partner shareholder") and member-partners in it. The position as a shareholder can be achieved through the establishment of a stock corporation ( original acquisition ) on the primary market or through purchase on the secondary market or through inheritance ( derivative acquisition ). Shareholders can be both natural and legal persons . The shareholders are among the internal stakeholders of a company.
Shareholder Rights and Obligations
General Membership Rights
The membership rights of the shareholder are divided into administrative rights (dominion rights) and property rights. Administrative rights include
- the right to attend the general meeting ,
- the right to information ( AktG ) and
- the right to contest resolutions of the general meeting ( AktG).
In contrast, the term “property rights” is used
- the entitlement to the share of the balance sheet profit (so-called dividend , Paragraph 4, AktG)
- the subscription right in the case of a subscription right issue ( (1), AktG),
- the repayment claim in the event of a capital reduction ( (2) AktG),
- the right to share in the liquidation proceeds ( AktG) and
- various compensation, exchange and compensation claims in the transformation and corporate group law (including Transformation Act ). , , AktG, ,
Rights of action
German stock corporation law is characterized by the peculiarity that although the shareholder has the option of filing an action for annulment or annulment against resolutions of the general meeting, he has no claims for performance or damages against his fellow shareholders and the members of the management board and supervisory board . This restrictive attitude towards the shareholders' right of action is based on the one hand on the idea that shareholders and board members only have a legal relationship with the company. Shareholders should not exercise their rights individually, but rather at the general meeting (see (1) AktG). In addition, the willingness to make decisions and personal responsibility of the members of the board of directors and supervisory board should not be jeopardized by an overly light liability towards the shareholders. Apart from actions for rescission and nullity, only a few rights of action for shareholders have been established in the law:
- domination and profit transfer agreement , AktG: Claims between shareholders in the event of a
- Paragraph 1, Sentence 2, Paragraph 2 of the AktG: Shareholders' claims in the event of willful use of influence on the company
- i. V. m. (4) AktG: the company's claim against administrative members asserted by a shareholder if there is a domination agreement
- factual grouping i. V. m. (1) sentence 2 AktG: Shareholders' claims in the case of
- (1) AktG: the company's claim against administrative members asserted by shareholders in the event of incorporation
Apart from these individual claims , actions for injunctive relief and removal may only be brought by a shareholder in exceptional cases, namely if the corporate bodies impair the shareholder's membership rights beyond what is covered by law or the articles of association. Compulsory actions aimed at forcing the management board or the supervisory board to take certain decisions or actions are generally inadmissible, as they would jeopardize the independence of the management bodies. The company reserves the right to bring claims for damages against members of the executive body who act in breach of duty. The board of directors asserts claims for damages against members of the supervisory board, the supervisory board claims for damages against the board of directors. In addition, under the strict requirements ofAktG, shareholders have the option of initiating enforcement proceedings.
The duty of loyalty generally describes the duties of consideration and loyalty of those involved in a company. Vertical loyalty obligations , i.e. those between the company and the individual shareholder, have long been recognized by case law. In contrast, the existence of horizontal fiduciary duties , i.e. H. Duties of loyalty between shareholders, affirmed late. In the “Audi / NSU” decision made in 1975 , the Federal Court of Justice (BGH) denied this on the grounds that joint membership in a stock corporation alone did not create any mutual legal relationships from which liability could be derived. A U-turn occurred in 1988 with the "Linotype" decision, in which at least one duty of loyalty to the majority shareholder to the minority shareholders was recognized. Horizontal obligations of loyalty have been fully recognized since the "Girmes" decision of 1995 , in which the BGH also imposed loyalty obligations on minority shareholders vis-à-vis the majority.
In principle, the shareholders exercise their rights in the affairs of the company in the general meeting ( ordinary share (as opposed to preference share ) grants one voting right at the Annual General Meeting . The General Assembly (CH: General Assembly ) elects the Supervisory Board (CH: Administrative Board ), a monitoring and advisory body that appoints the members of the Management Board. The management board must also submit the annual financial statements, the management report and the report of the supervisory board to the general meeting (without corresponding voting). One of the powers of the general meeting is to approve the actions of the executive board and the supervisory board by resolution. Further annual general meeting resolutions are the vote on the proposal for the appropriation of profits by the management board and the supervisory board as well as the election or re-election of the company's auditor.(1) AktG). Each
If a company profit is generated, the shareholders can be paid a dividend. The shareholder's share of the profit is determined by the size of his share in the company's share capital.
The basis for calculating the total dividend to be paid is usually the profit generated in a financial year, although the liquidity requirements in subsequent periods are also taken into account due to strategic corporate planning. Instead of paying a dividend, the profit can also be used to finance further corporate growth. If the company value then rises , the shareholders benefit from a capital gain by increasing the price of the share.
The rights and concerns of the shareholders at the general meeting can also be asserted by a representative - a person of their own choice, a custodian bank or a shareholders' association - at the general meeting.
Types of shareholders
According to the Stock Corporation Act, all holders of shares of one class are to be treated equally. Nevertheless, shareholders can be differentiated according to the size of their share in the share capital and the purpose of their share acquisition:
The main shareholder is the shareholder who holds the largest block of shares in a stock corporation.
A major shareholder is a shareholder who can exert a noticeable influence on the company due to a relatively large shareholding.
A small shareholder is a shareholder who only owns a relatively small stake in the company and despite nominally equal rights, unlike a large shareholder, has little influence on the company. The merger in shareholder associations counteracts this disadvantage. During the stock boom at the end of the 1990s, the number of small shareholders increased rapidly around the world, only to decline again during the subsequent bear market (see shareholder quota ).
A workforce shareholder is an employee who holds shares in the company employing him.
Voting rights shareholders are a special feature of Swiss company law. The principle of the proportionality of share capital and voting rights is broken. In the case of voting shares, a share has a higher voting right proportionally to its nominal value or capital share than other shares. In terms of voting rights, you are therefore privileged compared to the other shares, the so-called common shares. The higher voting right is, however, limited to a factor of 10 (Art. 693 OR).
An anchor shareholder is defined as a reliable, decisive and long-term committed shareholder.
Situation in Germany
In the Federal Republic of Germany , attempts were made several times to privatize state-owned companies to increase the distribution of shares among the population ( e.g. Preussag , Veba , Volkswagen , Deutsche Telekom and Deutsche Post ) (see Volksaktie ). The privatization of Telekom from 1996 was initially relatively successful in this respect, this coincided with the upswing of the New Economy . During this time, however, false expectations were aroused among the small shareholders as regards the security of their capital investments in shares. After the collapse of the New Economy and the crash in share prices , many newcomers to the stock market have withdrawn.
According to the Deutsches Aktieninstitut (DAI), the number of direct shareholders has risen again in recent years, from the second half of 2010 to just 3.4 million in 2017 to 4.9 million.
- BGHZ 83, 122 - "Holzmüller"
- Haar / Grechenig, minority quorum and majority power in the shareholder action - better corporate governance by abolishing the participation threshold according to Section 148 (1) sentence 1 AktG, Die Aktiengesellschaft (AG) 2013, 653–662 .
- BGH JZ 1976, 561 - Audi / NSU
- BGHZ 103, 184 - Linotype
- BGHZ 129, 136 - Girmes ( Memento from November 16, 2011 in the Internet Archive )
- anchor shareholder. In: duden.de. Retrieved November 11, 2015 .
- Shareholder figures 2017. Deutsches Aktien Institut, accessed on January 30, 2019 .