Management agreement
A management contract exists when a company (“owner company”) commissions another company (“operator”) to run its (own) company for its own account.
According to the prevailing opinion, an operations management contract in analogous application of Section 292 (1) No. 3 AktG is also a company contract . A direct application is ruled out, since the contracts mentioned in Section 292 (1) No. 3 AktG are leasing contracts, whereas the management contract, depending on the design, is a contractual relationship (Sections 662 et seq. BGB) or a service contract with agency character (Sections 611, 675 BGB). Nevertheless, effective shareholder protection requires an analogous application, because the management contract transfers management board competencies to third parties. This represents a serious interference with the organizational structure of the company, which also requires the application of §§ 293 ff. AktG.
Design
The normal case is acting in the name of others (so-called real management contracts, "management contracts"). Here, companies that do not have sufficient capacity themselves buy management services. However, it is also possible to manage the business in your own name (so-called bogus management contracts). In order to compensate for the obligation of the operator in the external relationship, he is given a claim to exemption from the obligations entered into and to reimbursement of his expenses (§§ 675 Paragraph 1, 611, 667 BGB).
The management can take place against payment ( agency ) or free of charge ( order ). In principle, the owner company has the right to issue instructions to the operator (Section 665 BGB). On the other hand, the operator can terminate the contractual relationship in accordance with § 627 BGB or for an important reason (§ 314 BGB).
Differentiation from other corporate contracts
The management agreement must be distinguished from other company agreements, especially the management agreement (Section 291 (1) sentence 2 AktG) and the control agreement (Section 291 (1) sentence 1 AktG). The operator runs another company (for him or her) for his account, whereas in the management contract his own company is run in his own name but for the account of a third party. In the case of the management agreement, the management of the company must be guaranteed by the management board (Section 76 AktG), while in the case of the domination agreement, the management of the company is completely subordinate to another company. As a result, the operator may only be entrusted with the day-to-day management of the company, while the board of directors of the owner company retains the fundamental decisions on corporate policy . This means that, in particular, the owner company's right to issue instructions must not be completely ruled out so that the contract is not subject to the stricter requirements for control agreements.
