unanimity

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When voting in collegial bodies, unanimity means that their resolutions must be passed with all votes present .

General

Laws , statutes or contracts under private or public law can provide that resolutions of collegial bodies (such as the supervisory board , works and staff council , management , shareholders ' meeting , general assembly , parliament , parties , governments , administrative advisory board , administrative board or board of directors ) by absolute , simple , qualified or relative majority or unanimously. Unanimity presupposes that all voting members of a committee have to choose one of several alternatives . The modern constitutions hardly know unanimity any more.

history

The unanimity rule is one of the oldest voting rules. The Ordinatio imperii ordered unanimity in the election of Lothar I in 817 . Unanimity in elections ( Latin electio per unum ) was considered an expression of God's will in the Middle Ages . Even in canon law of the Middle Ages and later, the unanimous rule ( Latin unanimitas ) applied to personnel decisions . There was a unanimous commitment to a single candidate as an expression of the overall will of his voters.

The canonists adopted the majority principle from Roman law in 1179. The right choice of law Licet iuris allowed from 1338 an advance of the majority principle in the German King franchise. Gradually this principle caught on in all European countries - except Poland. Since March 1652, the Liberum Veto granted every member of the Sejm the right to veto any resolution of parliament and thereby block a law with a single vote; it was in fact abolished in 1764. In 1762, Jean-Jacques Rousseau demanded unanimity ( French unanimité ) on the social contract . In 1795 Johann Gottlieb Fichte demanded unanimity in the vote on the resolution of the Basic Law. Since the Congress of Vienna in 1815, unanimity has been the basic rule for political conferences.

Some Indian tribes in North America only made decisions of the tribal council by consensus . In this case, the vote was preceded by the great palaver in which an attempt was made to find a unified opinion. The vote was then - if it succeeded - a purely formality.

Legal issues

Meeting room of the UN Security Council

Ideally, unanimity means that all those present who are entitled to vote cast a yes vote to the same alternative. If there is even one no vote, there is no unanimity. The question is how abstention and veto affect unanimity. In EU law, abstention does not preclude unanimous resolutions from being reached ( Art. 238 (4 ) TFEU ). An abstention does not count as a vote against, so that theoretically a unanimous resolution can be passed with only one vote with 30 abstentions. A veto, however, destroys unanimity, so that the right of veto is a tactical means of preventing unanimous decisions. This is often the case in the United Nations Security Council , where permanent members exercised their veto power a total of 261 times between 1945 and 2008.

Basically, in German company law for decisions of private companies , the principle of unanimity in accordance with § 709 1 para. BGB and § 119 para. 1 HGB . However, this may in the social contract be waived. Within the framework of private autonomy , the shareholders are free to agree on whether and to what extent the rigid, practical requirements, which often do not do justice to the principle of unanimity, are to be replaced by the majority principle.

Organizational aspects

The required unanimity therefore endangers the conclusion of resolutions. The larger the collegiate body and the more diverse the interests of its members , the more difficult and protracted the decision-making process can become or even become impossible. Therefore, unanimous resolutions are only provided in important exceptional cases.

Examples

Germany

Inadmissible or obviously unfounded constitutional complaints can be rejected by a unanimous decision of the Federal Constitutional Court according to § 24 BVerfGG . A managing director of a BGB company can , according to Section 712 (1) BGB , be withdrawn from the management authority by unanimous resolution of the other shareholders . Resolutions of the board of directors of a stock corporation on the rules of procedure must be passed unanimously in accordance with Section 77 (2 ) AktG .

In the Banking allowed according to § 13 para. 2 KWG a large exposure or in accordance with § 15 KWG. 1, an organ of credit just because a unanimous decision of all managers, be granted. A supervised company of a financial conglomerate may only carry out significant intra-conglomerate transactions on the basis of a unanimous resolution of all managers of the supervised company, without prejudice to the effectiveness of legal transactions , pursuant to Section 23 (2) FKAG .

Unanimity is required at the apartment owners' meeting for changes to the declaration of division , for structural changes ( Section 22 (1) WEG ), circular resolutions ( Section 23 (3) WEG), a ban on renting to holiday guests and, in Austria, also for usage regulations.

The unanimity principle applies to the adoption of resolutions by the Conference of Interior Ministers ; there is also the possibility of abstaining.

International

In the UN General Assembly , UN resolutions are adopted unanimously in accordance with customary law, although Article 18 Paragraphs 2 and 3 of the UN Charter is a majority rule .

In the EU, the TFEU only stipulates unanimity in a few, albeit very important, areas. In general, the European Council seeks unanimity, even if this is not provided for by law. The TFEU, however, provides for a passerelle clause in Art. 48 (7) TFEU, according to which the Council can take decisions on certain issues with a qualified majority (BQM) instead of a unanimous decision. In addition, the Council may unanimously decide in certain policy areas to expand the application of the QMM (e.g. in matters of family law with cross-border implications in accordance with Art. 81 (3) TFEU). In accordance with Art. 113 TFEU, the Council unanimously enacts provisions to harmonize legislation on sales taxes , consumption taxes and other indirect taxes . According to Art. 153 (2) TFEU, the Council unanimously decides on social security and social protection of workers , protection of workers in the event of termination of the employment contract , representation and collective protection of workers and employers and conditions of employment of nationals from third countries who are legally resident in the Stop the EU. In Art. 352 TFEU unanimity is required if EU action in planned policies is required, but the necessary powers are not provided, so that the Council relevant provisions unanimously needs to adopt.

The jury is the Chamber in the common law and must as a whole the jury a criminal case unanimous decisions ( English unanimity Verdicts ) cases. A non-unanimous decision of the jury constitutes a non-decision ( English hung jury ), which leads to the termination of the procedure and enables a new procedure.

The jury does not use the rule of unanimity to form a common will, but to keep the probability of errors as low as possible. Assuming that when asked whether a defendant committed the crime he was accused of, a single jury member is wrong on average 1 in 5 cases. According to the rules for the likelihood of independent events, 12 jurors are wrong in only 1 in more than 244 million cases at the same time. However, this only applies if all jurors actually decide independently of each other, which is not the case in practice, for example due to group dynamic processes in decision-making.

Demarcation

While the quorum is a formal term, the majority or unanimity is a substantive term. Unanimous resolutions require a quorum. The legal concept Allstimmigkeit represents a collective decision that is related to unanimity, but notwithstanding this, the consent of all requires members of the group, so that decisions within the framework of a committee to be taken not only the unanimity of the congregation, but also the Presence of all concerned is necessary.

See also

Web links

Wiktionary: unanimous  - explanations of meanings, word origins, synonyms, translations

literature

  • Amartya K. Sen: Collective Choice and Social Welfare (New edition) . Elsevier Science Ltd; Edition: New edition (June 1979), 1979, ISBN 978-0-444-85127-7 .

Individual evidence

  1. ^ Theodor Eschenburg , State and Society in Germany , 1956, p. 115
  2. ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 269
  3. ↑ Walter Schlesinger , Karlingische royal elections , in: Contributions to the German constitutional history of the Middle Ages, Volume I, 1963, p 99
  4. ↑ Carmen Thiele , Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 33 f.
  5. ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 36
  6. ^ Jean-Jacques Rousseau, Du contrat social ou principes du droit politique , 1762, IX p. 206
  7. ^ Johann Gottlieb Fichte, Basis of Natural Law according to Principien der Wissenschaftslehre , 1795/1965, p. 178 ff.
  8. ^ Alfred Verdross , unanimity of votes - vote ratio , in: Karl Strupp (Ed.), Dictionary of International Law and Diplomacy, Volume 2, 1925, p. 681
  9. ↑ René König, Indianer — where to ?: Alternatives in Arizona , 1973, p. 34
  10. ^ Changing Patterns in the Use of the Veto in the Security Council. (PDF; 57 kB) Global Policy Forum, accessed on December 1, 2011 (English).
  11. ↑ BGH, judgment of October 21, 2014, Az .: II ZR 84/13 = BGHZ 203, 77
  12. ↑ BGH, judgment of January 15, 2007, Az .: II ZR 245/05 = BGHZ 170, 283 Rn. 6 ( Otto )
  13. ↑ Helmut Laux, The use of decision-making bodies , 1979, p. 50 f.
  14. ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 270
  15. ↑ See BayObLG, decision of December 8th, 1994 - 2Z BR 116/94 = MDR 1995, 569
  16. ↑ BGH, judgment of April 12, 2019, Az .: V ZR 112/18 = MDR 2019, 657
  17. ↑ Walter Rosifka, Rights and Duties as Apartment Owner , 2017, p. 163
  18. ↑ Daniel Schamburek, The settlement of tasks in the organizational German national Mini Trial administrations , 2016, p 423
  19. ↑ Wolfgang Ernst, legal knowledge through judicial majorities , 2016, p. 143
  20. ↑ Wolf Middendorff, From Abraham Lincoln to Melvin Belli , 1989, p. 10
  21. ^ Franz-Ludwig Auerbach, The parliamentary quorum , 1933, p. 12 FN 1