The Annual General Meeting (abbreviated HV , English annual general meeting ) is the corporate law of the three organs of a corporation , a partnership limited by shares or a Societas Europaea . It serves as a gathering of all shareholders for information and resolution on company-related processes. In Switzerland , the shareholders' meeting is called the general meeting .
In the case of other legal forms (especially in associations ), the meeting of all members or partners is sometimes referred to as the “ (annual) general meeting ”; From a legally correct point of view, associations are called “ general meetings ” ( BGB ) and GmbH ( GmbHG ) or partnerships ( (2 ) HGB ) are “ shareholders' meetings ”.
The members of the two other bodies ( management board and supervisory board ) should, if possible, participate in the general meeting ( (3 ) of the Stock Corporation Act (AktG) ). Two types are regulated by law, namely the ordinary and extraordinary general meetings. The legal basis in Germany are § to AktG.
Ordinary general meeting
The ordinary general meeting (also Annual General Meeting (AGM)) takes place at least once a year ( ordinary shares in a company.(1) sentence 1 AktG). Participants in the Annual General Meeting entitled to vote are all holders of
Fundamental decisions for the company are made during an ordinary general meeting, for example the election of the members of the supervisory board , changes to the articles of association and the distribution of profits in the form of a dividend . An important point on the agenda is the discharge of the supervisory board and the management board . The general meeting usually elects the auditor . In general, resolutions of the General Meeting are passed with a simple majority of the votes cast , unless they are decisions of particular significance. These include:
- Rules of Procedure for the Annual General Meeting ( (1) sentence 1 AktG),
- Amendments to the articles of association ( (2) sentence 1 AktG),
- Capital increase ( (1) sentence 1 AktG),
- Exclusion of subscription rights ( (3) sentence 2 AktG),
- Dissolution of the company ( (1) No. 2 AktG) or
- Restructuring and corporate contracts (e.g. (1), , , , , UmwG; , or (2) sentence 2 AktG).
- The Federal Court of Justice also sees the HV as being responsible for structural measures of outstanding importance .
In these cases, the Stock Corporation Act prescribes approval of at least 75 percent of the capital present when the resolution is passed, although other majorities may be specified in the company's articles of association (with the exception of the dismissal of the Supervisory Board).
Extraordinary general meeting
The extraordinary general meeting ( English Extraordinary General Meeting (EGM)) does not take a year, but due to special events are held. Such occasions can be unexpected events such as takeovers or mergers ( mergers & acquisitions ), the dismissal of supervisory boards or capital measures ( capital increase / capital reduction ). The board of directors invites to the general meeting based on its own resolution or a minority vote by shareholders ( AktG).
Virtual general meeting
In accordance with Article 2 of the law passed by the Bundestag on March 27, 2020, to mitigate the consequences of the COVID-19 pandemic in civil, insolvency and criminal procedure law , it is temporarily permissible to hold general meetings virtually without any physical presence. This exemption is limited to December 31, 2020. It can be extended by ordinance by the Minister of Justice until the end of 2021, if the effects of the Covid-19 pandemic make this appear necessary.
Technical handling of general meetings
According toAktG, the general meeting is to be called by the executive board. Board members who are entered in the commercial register as board members are authorized. This convocation must be made at least 30 days before the actual general meeting (Section 123 (1) sentence 1 AktG), whereby the day of the convocation is not counted (Section 123 (1) sentence 2 AktG). The convocation must contain the time and place of the general meeting as well as the agenda. At least 21 days before the meeting, the management board must notify the financial institutions and shareholders' associations who exercised voting rights for shareholders at the last general meeting or who requested notification of the convening of the general meeting ( AktG).
Proof of the shareholder's voting rights
The shareholder has to provide proof of his voting rights; this can be in text form as special proof of the shareholding by the custodian bank in the form of bearer shares, this evidence must relate to the 21st day before the AGM and must be sent to the company at the address given in the invitation at least 6 days before the AGM (3) sentence 3 AktG. A shorter period than the specified period can be specified in the articles of association or in the convocation on the basis of an authorization by the articles of association, (3) sentence 4 AktG.(3) sentence 2 AktG. In the case of
The technical organization of the general meetings of listed stock corporations with bearer shares (dispatch of the annual reports and invitations as well as the administration of voting rights) is the responsibility of the custodian banks in Germany, since the companies do not know their shareholders (the company knows the holders of registered shares through the share register and is directly controlled by them informed). Shareholders have the choice of letting their voting rights lapse, representing them themselves or transferring them to the bank or someone authorized by them (e.g. an association that is supposed to represent the rights of shareholders) ( deposit voting right ). If the shareholder decides to exercise his voting rights, the shares of the company must be in the investor's custody account by a certain record date . This is a new regulation that has been in effect since November 1, 2005 in AktG. The 21st day before the Annual General Meeting was set as the “record date”. The entry date for exercising or authorizing voting rights is now the 7th day before the general meeting. What happens in the time between the “Record Date” and the day of the Annual General Meeting is irrelevant for the right to participate. A side effect is that shareholders can sell their shares but still go to the general meeting or exercise their voting rights by issuing instructions. Anyone who buys shares after the record date has no right to participate; but he gets the dividend after the general meeting. The new regulation made it easier for foreign investors in particular to exercise their voting rights, and their presence has improved significantly as a result.
Until 2005, the shares in the custody account were blocked until the end of the AGM so that an otherwise possible transfer to another would not lead to an increase in voting rights.
A key element for interested shareholders is the dividend in kind during or after the meeting.
Limitation of the length of the meeting
On February 8, 2010, the Federal Court of Justice (BGH) decided that the chairman of the meeting can end the general meeting at 10.30 p.m. by closing the debate if there are still motions to vote. The Senate considered it permissible to discuss a standard agenda in six hours at the general meeting. This duration can be extended to ten hours if minority motions have still been requested. In addition, the BGH allowed the chairman of the meeting to limit a shareholder's speaking time to 15 minutes. If at least three other speakers have requested to speak, the chairman of the meeting may limit the speaking time to ten minutes. The speaking time of a speaker must not exceed 45 minutes. When allocating the time frame for the shareholders' debate, the chairman of the meeting must always take the specific circumstances into account when exercising his discretion. If this were not observed, the decisions could lead to an act of arbitrariness. The chairman of the meeting has to be guided by the principles of objectivity, proportionality and equal treatment . These principles need not have been included in the company's articles of association. In its decision, the BGH Senate referred to the law on corporate integrity and the modernization of the right of appeal . In AktG a restriction on the freedom of speech and right to ask questions is provided which can be included in the articles of association.
Nullity of General Meeting Resolutions
Law and jurisprudence provide for the possibility that individual resolutions of a general meeting or even the entire general meeting may be void, i.e. have no legal effect from the start. In the central provision of AktG, reference is first made to six grounds for nullity in the Stock Corporation Act, while six other grounds for nullity are listed thereafter.
Reference to other grounds for invalidity
For example, reference is made to the resolution on a conditional capital increase; should the resolutions of an AGM oppose this, they are null and void ((4) AktG). In AktG it is determined that the shareholders are entitled to new shares in proportion to their shares in the previous share capital and that a resolution to the contrary at an AGM is null and void. Resolutions to increase and decrease capital are also void if they have not been entered in the commercial register within six months of the resolution being passed ( (2) AktG).
Own reasons for invalidity
In particular, an entire AGM is null and void if it was not convened in accordance with the requirements of(2) and (3) AktG (the Executive Board must always convene the AGM). If the notarial certification of individual AGM resolutions required under (1) and (2) AktG is missing (an AGM minutes must be prepared), then the law wants them to be null and void. The listed reasons for nullity are final (“only then null”), so they cannot be expanded at will.
The actually void resolutions can in many cases be remedied underAktG if they were entered in the commercial register and at least three years have passed since then.
Resolutions of the general meeting can be challenged
In addition, the law in contestability of resolutions of the general meeting in a large number of cases . The resolutions passed by the General Meeting are effective until they have been legally challenged. The action for avoidance must be aimed at a violation of the law or a violation of the articles of association through resolutions of the general meeting. In particular, (4) AktG focuses on the incorrect, incomplete or refused provision of information if an objectively judging shareholder would have regarded the provision of information as an essential prerequisite for properly exercising his participation and membership rights. This is a breach of the duty to provide information by the board of directors, which conflicts with the shareholder's right to information under AktG.AktG also provides for the
This general standard was given concrete form through a large number of decisions by the BGH. He has pointed out that the withholding of information that is essential for the shareholder to participate in the resolution of the Annual General Meeting is a contestable process. If the board of directors requires the general meeting to make a decision on a business management matter in accordance with(2) AktG, it must also provide it with the information it needs for an appropriate decision-making process. Resolutions to discharge the executive board or the supervisory board can be challenged if these bodies have clearly committed a serious violation of the law or the articles of association.
The action for rescission against resolutions of the general meeting is an important protective instrument for shareholders. In the past, however, it was frequently abused by “ predatory shareholders ”. The law wants to counteract this since May 2009 with a judicial clearance procedure. This enables a resolution of the general meeting to be entered in the commercial register in an urgent manner , although an action for annulment has been filed against the resolution ( , (6), AktG and (3) UmwG). The aim is to shorten the duration of the approval process because the main “blackmail potential” (BMJ) lies in a long process duration. The OLG is now primarily responsible for approval procedures of this type ( Paragraph 1 Clause 3, Paragraph 3 Clause 4 AktG).
- Semler / Volhard / Reichert: Work manual for the general meeting , 3rd edition, Munich 2011, Verlag CH Beck, ISBN 978-3-8006-3703-4
- Schaaf (Hrsg.): Practice of the general meeting - successful preparation and implementation , 3rd edition, Cologne 2011, RWS Verlag, ISBN 978-3-8145-8153-8
- General Assembly - the corresponding name for the general assembly in Switzerland
- Professional plaintiff
- Unwritten general meeting competence
- BGHZ 83, 122 (Holzmüller)
- Law to Mitigate the Consequences of the COVID-19 Pandemic in Civil, Insolvency and Criminal Procedure Law. In: Federal Law Gazette. March 27, 2020, accessed March 30, 2020 .
- BGH, judgment of February 8, 2010, Az .: II ZR 94/08
- BGH, judgment of November 12, 2001, Az .: II ZR 225/99
- BGH, judgment of January 15, 2001, Az .: II ZR 124/99
- BGH, judgment of November 25, 2002, Az .: II ZR 133/01
- Press release of the Federal of Justice of May 29, 2009 ( Memento of the original of September 26, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.