Quorum

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The quorum ( Latin quorum ) requires reaching or exceeding a by legal standards specified minimum number of all voting present members of a collective body to decisions to make.

General

The collegial bodies include, in particular, bodies , parliaments , associations , committees, bodies , authorities , parties , general meetings or apartment owners ' meetings . A quorum is not required in these bodies if the voting members are required to be present . However, if the determination of the quorum is prior to the adoption of a resolution, the quorum is the most essential formal requirement for the validity of a substantive decision. While the presence represents a means of achieving a quorum, the casting of a resolution is a means of achieving a majority or unanimity .

The quorum is a prerequisite for the lawful conclusion of resolutions and is intended to ensure that the decision-making process is carried out with a broad majority in accordance with the principle of democracy and representativeness . Majorities are intended to prevent minorities from being able to pass far-reaching decisions that would also have to be supported by the majorities that are not present. Resolutions are a collective decision-making process within the collegial organs, which, unlike overall acts, produce a purely internal effect because they serve the internal decision-making process of the organ.

Legal issues

When a quorum is reached is regulated by laws , statutes or rules of procedure under private or public law . The quorum is usually required for each individual resolution and must therefore - if the number of people is confusing - be re-determined before each further resolution. If resolutions are passed despite the lack of a quorum , they are ineffective . The legal consequence of a quorum is always the ineffectiveness of resolutions that have been passed. Another consequence of the lack of a quorum can be that a meeting has to be ended if its main purpose is to pass resolutions. The measure of the quorum is usually the number of people , but also a capital share , shares or co-ownership shares .

While the majority of the members of the board of directors have a quorum on the board of the stock corporation in accordance with section 77 (1 ) AktG , the supervisory board has a quorum under section 108 (2) AktG if at least half of the members participate in the resolution. For the general meeting, however, apart from one exception ( subsequent formation ; Section 52 (5) sentence 2 AktG) there are no regulations. The general meeting therefore always has a quorum, regardless of the amount of the share capital represented or the number of shareholders present . If only one shareholder appears, he or she can make any resolution within the framework of the agenda . In the case of the GmbH , the resolution of the shareholders according to the GmbH Act does not require a quorum. The shareholders taking part in the resolution can make resolutions regardless of whether they form a majority of votes or capital; closer, the social contract determined.

According to Section 45 (1) of the Rules of Procedure of the German Bundestag (GOBT), more than half of the Bundestag members must be present in the meeting room for a quorum . If the quorum is questioned, it can be checked in accordance with Section 45 (2) GOBT by jumping from a mutton whether more than half of the members are in the meeting room. If legislative resolutions are passed in the Bundestag despite the fact that there is no quorum, they are ineffective. If it is determined that there is no quorum, the meeting must be canceled immediately by the President of the Bundestag (Section 45 (3) GOBT). A senate of the Federal Constitutional Court has a quorum according to § 15 BVerfGG if at least six judges are present. The creditors' committee in the context of insolvency proceedings has a quorum according to § 72 InsO if the majority of the members participated in the resolution and the resolution was passed with the majority of the votes cast. According to Section 25 (3) of the WEG , the owners' meeting has a quorum if the apartment owners who are present and entitled to vote represent more than half of the co-ownership shares.

The majority required for a resolution is to be distinguished from the quorum. In general, resolutions at the general meeting require a simple majority of votes ( Section 133 (1) AktG). In addition, the law does 75% of the votes cast (withdrawal of the order of board members according to § 103 , para. 1 AktG, approval of the Management Board according to § 111 , para. 4 AktG), 75% of the capital stock represented in particular in post-formation ( § 52 para. 5 AktG), amendment to the articles of association ( Section 119 (1) No. 5 AktG) or capital increase ( Section 119 (1) No. 6 AktG) required. 100% ( unanimity ) of the votes are necessary for a company to be incorporated ( Section 319 (12) AktG) or a change of legal form ( Section 233 (1) UmwG).

International

In France and Great Britain , the quorum of the general meeting requires the achievement of a minimum capital presence. In France, at least 25% of the subscribed capital must be present at an ordinary general meeting, in England two shareholders with voting rights are required. The United States Senate requires at least half the Senators plus one to have a quorum under the Constitution . The Constitutional Act of 1867 established the quorum of the Canadian Senate to have a minimum of 15 Senators present, including the session president.

literature

  • Hermann Meier: On the rules of procedure: technology and tactics at assemblies, meetings and discussions. 3rd, revised edition. VS-Verlag Wiesbaden 2011, ISBN 978-3531178356 , p. 91ff [1]

Individual evidence

  1. ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 386
  2. ^ Julius Hatschek / Paul Kurtzig, German and Prussian State Law , Volume 2, 1930, p. 73
  3. ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 383
  4. ↑ Hermann Meier, The Rules of Procedure , 2015, p. 11
  5. ^ Günter Henn / Jürgen Frodermann / Dirk Jannott, Handbuch des Aktienrechts , 2009, p. 524, Rn. 255
  6. ↑ Joachim Meyer-Landrut / Fritz-Georg Miller / Rudolf J. Niehus (eds.), Law relating to companies with limited liability (GmbHG) , 1987, p. 1334, § 47 Rn. 15th
  7. ↑ Nina Winkler, The Voting Rights of Shareholders in the European Union , 2006, p. 216