Holzmüller doctrine

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With the Holzmüller Doctrine , the German Federal Court of Justice (BGH) in its decision of February 25, 1982 ( BGHZ 83, 122) established unwritten powers of the general meeting of a stock corporation .

meaning

These are decisions that formally fall within the responsibility of the board of directors and are also covered by the articles of association , but which "interfere so deeply with the membership rights of the shareholders [...] that the board of directors cannot reasonably assume that it is allowed to do so take sole responsibility without involving the general meeting. "In the specific case of the BGH, shareholders of the parent company should have the right to" participate in fundamental decisions that are significant for their legal position in the subsidiary [such as a capital increase] about its general meeting, such as if it was a matter for the parent company itself. ”In such cases, the management board and the supervisory board cannot act alone, but the approval of the general meeting is required.

This decision concerned the outsourcing of a seaport to a subsidiary . This seaport was the most valuable part of the company. The BGH declared nullity because of the transfer of the essential assets from the parent to the new subsidiary i. S. d. Section 361 AktG (old version) initially denied, but because of the consequent unmistakable obligations of the parent company under the domination agreement, it then requires the participation of the general meeting.

In the so-called "Gelatine decisions", the BGH specified the doctrine in 2004: According to this, the general meeting only has an unwritten right to participate if the measures taken by the board would result in changes that at least come close to the type of change that could be achieved solely through an amendment to the articles of association could be brought about. If then - as an exception - the approval of the general meeting for a management measure has to be obtained, this requires a three-quarters majority of the represented share capital.

literature

• Heiner Feldhaus: The sale of parts of a stock corporation and the need for an extraordinary general meeting . In: Operations consultant . Verlagsgruppe Deutscher Fachverlag, 2009, ISSN  0340-7918 , p. 562-569 .
• Holger Fleischer : Unwritten general meeting responsibilities in stock corporation law . In: New legal weekly . CH Beck, 2004, ISSN  0341-1915 , p. 2335-2339 .
• Michael Hoffmann-Becking : "Holzmüller", "Gelatine" and the thesis of the mediation of shareholders' rights . In: Journal for all commercial and business law . tape 172 . Verlagsgruppe Deutscher Fachverlag, 2008, ISSN  0044-2437 , p. 231-238 .

Web links

• Federal Court of Justice notification from the press office, No. 47/2004
• Sebastian Barta: The "Gelatine" decision of the BGH: Effects on the consulting practice at AG and GmbH (without year)

Individual evidence

1. ↑ Judgment Az. II ZR 174/80 of February 25, 1982 "Holzmüller decision"
2. ↑ BGH, judgment of April 26, 2004, Az. II ZR 154/02 "Gelatine I"
3. ↑ BGH, judgment of April 26, 2004, Az. II ZR 155/02 parallel decision "Gelatine II"

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