Domination Agreement

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The control agreement is between a domestic corporation or partnership limited by shares closed with a domestic or foreign company with any legal form of enterprise agreement , which subordinates the management of the domestic company to other companies.

Legal bases

The domination agreement is regulated in section 291 (1) sentence 1 alternative 1 AktG . It irrefutably leads to a (contractual) group between the contracting parties ( Section 18 (1) sentence 2 AktG) in the form of a subordinate group . This corporate law term makes it clear what the domination agreement is about: the controlled company submits to the controlling company and loses all autonomy under company law. However, if several companies are under the uniform management of another company without being dependent on one another, there is no domination agreement (Section 291 (2) AktG); the domination agreement also regularly presupposes the dependency. Dependent companies are legally independent companies on which another company (controlling company) can exercise a controlling influence directly or indirectly (Section 17 (1) AktG).

Due to the regulation in the Stock Corporation Act, the domination agreement does not initially apply to legal forms other than AG and KGaA in the controlled company. In the meantime, however, the GmbH has been recognized as a controlled company by case law, which is also evident from the reference in Section 30 (1) sentence 2 GmbHG. Partnerships can only function as a controlled company under certain conditions. This includes, in particular, that no natural person is personally liable for corporate liabilities. The ruling company, on the other hand, may have any legal form.

consequences

The core of the domination agreement is the subordination of the controlled company to the authority of the controlling company ( Section 308 (1) AktG). This right of instruction is exercised by the management authority and affects the management of the controlled company. The dominant company makes decisions in at least one of the corporate functional areas ( procurement , financing , organization , sales ) and enforces them - if necessary against the will of the controlled company. The independent management of the management board of the controlled company ( Section 76 (1) AktG) is replaced by an externally determined management of the dominant company (Section 308 (1) AktG). The effects of a domination agreement, in particular on the controlled company, are so serious that the legislature has built in two consequences.

  • Formal consequences :

The domination agreement must be drawn up in writing, resolved with a 75% majority at the general meeting of the controlled company ( Section 293 (1) AktG) and must be entered in the commercial register .

  • Material consequences :

The controlling company has a duty to compensate outside (minority) shareholders ( Section 304 (3) sentence 1 AktG) for all disadvantages that result from exercising management power.

Inextricably linked to a domination agreement is, on the one hand, the obligation of the controlling company to offset the balance sheet losses of the controlled company (Section 302 (1) AktG; see profit transfer agreement ); on the other hand, minority shareholders are to be guaranteed a certain annual profit in accordance with Section 304 (1) AktG. Without these compensation obligations, a domination agreement is null and void (Section 304 (3) sentence 1 AktG).

termination

Unlike the other corporate agreements, a domination agreement cannot be concluded retrospectively. It can only be canceled at the end of the financial year or the contractually specified accounting period or terminated for good cause without observing a notice period. Good cause exists in particular if the other party to the contract will probably not be able to fulfill its obligations under the contract ( Section 297 AktG) or if the controlling company no longer has the majority of the shares in the controlled company. The (incidentally not constitutive) entry of the termination of a contract in the commercial register may result in a. also clearly show the time of termination ( Section 298 AktG). For reasons of creditor protection, there is an obligation to pay the debts of the controlled company even after the domination agreement has ended ( Section 303 (1) AktG). For example, the controlling company has to provide security for the creditors of the dependent company, whose claims have been established before the entry of the termination of the contract in the commercial register is known, if they agree to this purpose within six months of the announcement of the entry report to him.

literature

See also

Individual evidence

  1. ↑ BGH NJW 1989, 295.
  2. ↑ Jens Kuhlmann / Erik Ahnis, corporate and transformation law , 2007, p. 213.
  3. ↑ Jens Kuhlmann / Erik Ahnis, Corporate and Transformation Law , 2007, p. 224.