Group law (Germany)
The group law is a legal area of company law that deals with the connection of legally independent companies in corporations involved.
Germany is one of the few countries in Europe where corporate law is comprehensively regulated by law. Although each individual legal form is comprehensively codified on its own, this is not enough to develop group law from this. It came about because the legislature considered the group-typical dangers to be in need of regulation. This applies in particular to the distortion of interests that is associated with the domination of one company by another company. The dependent society, which is no longer oriented towards its own purposes and interests, contradicts the model of a self-determined independent society. Your external control and questions of group liability are reasons for an independent group law. Central legal sources of German group law are § § 15 ff., § 291 ff. And § 311 ff. AktG , the central term is dependency. These regulations apply not only to the AG and KGaA , but also to other legal forms according to the case law of the BGH . The BGH jurisprudence developed a comprehensive GmbH group law in particular for the GmbH group in analogous application of the stock corporation law.
On the one hand, the term “group” is relevant to antitrust law: the so-called group privilege , i.e. the privilege of the group companies involved in the group, means that the conduct covered by the ban on cartels does not constitute a violation of German or EC antitrust law. On the other hand, the group term in the credit system is of outstanding importance in the formation of borrower units and groups of associated customers , especially in the case of large loans and loans of millions .
When the "Nobel Dynamite Trust Company Ltd." , founded in London in October 1886, was founded , according to today's understanding, it was a group-forming holding company . German group law subsequently emerged as an independent area of law in the Weimar Republic . In May 1913, the Reichsgericht (RG) had to deal with the question of whether a company contract concluded between two companies could be null and void due to the restriction of the commercial freedom of one company. For the first time , the case law had to deal with issues of corporate law because one company exercised personnel sovereignty over the other. In this “Petroleum Judgment” the RG came to the conclusion that a company, like a natural person, cannot incapacitate itself.
After 1920 the pace of group formation in Germany increased significantly. However, the restrictive tax legislation prevented the establishment of holdings based in Germany. Frederick Haussmann submitted his first monograph on the law of company summaries in 1926, followed by Heinrich Friedländer in 1927 and Heinrich Kronstein in 1931 . Unlike Haussmann, Friedländer also dealt with details of group formation, but both authors only dealt with the abuses of group formation in passing. In 1927, 60% of the German share capital was considered tied up in groups.
Group law is only legally codified for the AG / KGaA in the Stock Corporation Act (AktG); for the GmbH it was developed through the case law of the BGH - mostly in analogy to group law under company law. The GmbH group law was created and developed with reference to the codified company law and especially its evaluations.
The German Stock Corporation Act (AktG) defines the group in Section 18 AktG as follows: “If a controlling company and one or more dependent companies are combined under the uniform management of the controlling company, they form a group; the individual companies are group companies. "
The central characteristic of the group is the combination of legally independent companies under uniform management. Uniform management is an indeterminate legal term that the legislature has deliberately refrained from specifying. According to the prevailing opinion, there is uniform management when affiliated companies are combined into one planning unit. This requires the exercise of management activity in at least one essential corporate decision-making area ( procurement , production , sales , finance , human resources policy ). The leadership does not have to be persistent or comprehensive; Rather, it can also be exhausted in individual management measures. Management means that the independent activity of the board of directors of the controlled company ( Section 76 AktG) is replaced by an activity that is externally determined and bound by instructions ( Section 308 (1) AktG).
According to the position of the group companies in relation to one another, the law further distinguishes between groups of equal order and subordinate groups :
The characteristic of the group of equal order is the equal position of the group companies. In this case there is no controlling company, but the management bodies are contractually regulated in mutual agreement. This can be in the form of an advisory board or a personal integration of the management of the companies involved.
In practice, the form of the subordinate group is more common . Dependent companies are under the uniform management of a ruling company. The subordinate companies are dependent on the dominant company being able to exercise a controlling influence directly or indirectly on them, whereby this position of power does not have to be exercised, it is sufficient if only the possibility exists.
A further distinction is made between three forms of subordinate group, each with a different degree of integration:
Inclusion is the most intensive form of group connection. According to § § 319 ff. AktG, it exists when an AG is incorporated into another domestic AG. The incorporated company retains its legal independence externally, but internally it functions like an operations department. The prerequisite is a majority ownership of at least 95%. From an economic point of view, the incorporation of a merger or merger comes very close. The incorporation must be entered in the commercial register.
A contract group is established through a domination agreement within the meaning of Section 291 AktG. A domination agreement entitles the controlling company to issue instructions to the management board of the dependent company with regard to the management of the company. This right to issue instructions is comprehensive and therefore also applies to adverse instructions, unless they contradict the interests of the group or pose a threat to the existence of the dependent company. If this results in damage, the legal representative of the controlling company is obliged to pay compensation ( Section 309 Para. 2 AktG). The prerequisite for the conclusion of the contract is a three-quarters majority in the general meeting of both companies. Through the comprehensive right to issue instructions, the ruling company legally gains full entrepreneurial management of the dependent company.
De facto group
If there is neither a domination agreement nor an integration, one speaks of a de facto group under the following conditions: There is a dependent relationship within the meaning of § 17 AktG, the dependent company is a corporation (AG, KGaA, GmbH, UG; a corresponding application of § 17 AktG on partnerships is hardly possible because of the prevailing principle of unanimous decision-making on basic management measures) and the controlling company has the opportunity to influence the dependent company. The basis for the influence of the dominant company is basically a majority stake, which means the capital and / or majority of votes. However, this influence may not be used here to induce the dependent company to undertake a transaction that is disadvantageous for it, unless the disadvantages are offset. In practice, however, this compensation for disadvantages is difficult to ensure, both in terms of type and scope. If there is a de facto group, the legal representatives are liable for any damage caused by adverse instructions ( Section 317 f. AktG). In addition, the management board has to prepare an annual dependency report ( Section 312 AktG).
In group law, a distinction is made between the factual and the qualified group:
- The de facto group results from majority ownership through equity participation ( Section 18 (1) sentence 1 AktG). The controlling influence is presumed by law in the case of de facto dependency. Here the ruling company exercises uniform management over the ruled company. The majority ownership means that the general meeting can only pass resolutions that are acceptable to the majority shareholder. However, the controlling shareholder does not have the right to issue unfavorable instructions .
- In the case of a qualified group ( contract group ), on the other hand, a domination agreement , for example, enables the controlling company to issue instructions to the management board of the controlled company ( Section 308 AktG). According to § 311 AktG, a controlling company may not cause the dependent company to take disadvantageous measures if these disadvantages are not compensated for by the end of the financial year or at least the dependent company is granted a legal right to compensation. All corporate contracts lead irrefutably to a qualified group.
- A qualified factual group is used when the group management in the "factual group is intensified in such a way that the system of individual settlement is disabled". A qualified factual group exists when the interventions by the controlling company in the management of the dependent company are so extensive that the damage that becomes apparent in the event of insolvency can no longer be causally assigned to specific actions of the parent company .
As a rule, a contract group will also be based on a de facto group.
Group formation of other legal forms
The term “group”, which originates from stock corporation law and was therefore originally only intended for the AG and KGaA, is now also used for all other legal forms. In the context of its case law on group liability law , the BGH affirmed the application of the group regulations under stock corporation law in essential sub-areas, particularly in the case of the GmbH, for which there is no corresponding provision in the GmbH Act . According to this, a group is understood to mean the actual exercise (planned exercise) of control in the sense of uniform management in several companies.
According to the rulings of the Federal Supreme Court, the term “company” represents the entry into group liability. For the application of special group liability rules, it does not depend on whether the company is controlled by another company or by a natural person. The Federal Court of Justice has consistently ruled that a natural person has company characteristics in the sense of group law as fulfilled if they participate as sole or majority shareholder in at least 2 companies and at least one of these participations allows them to exert entrepreneurial influence. Therefore the legal form of the controlling company is irrelevant. It can be an individual, a civil society, or any other company. This is also based on Section 14 (1) of the German Civil Code ( BGB) , which regards a natural or legal person or a legal partnership as an entrepreneur who, when concluding a legal transaction, is exercising their commercial or independent professional activity. The corporate term has been largely softened under corporate law, especially when it comes to natural persons. Entrepreneurial activity of the individual - beyond holding the shares - is not required. This means that the activity that, according to the previous view, consists of the private asset management of the shares is already regarded as an entrepreneurial activity. The position of managing director was addressed by the BGH many times, but is not a necessary prerequisite for fulfilling the corporate characteristics under group law. A private person as a shareholder is always a company in the sense of group law if, in addition to the participation in the AG, he or she has other economic interests which "in nature and intensity justify serious concern that, because of these ties, they could influence the AG as a result of membership to their disadvantage. ”“ Other economic interests ”is primarily to be understood as having at least one significant participation in another company.
In the case of family members, there is no general set of experience according to which they always pursue the same interests. A division of company shares among several minority shareholders within the family is no protection against the assumption of control of a company. The BGH allows a company policy pursued jointly in the past to be sufficient as a sufficiently secure basis for the exercise of joint rule by spouses or family members. Clues for a jointly pursued corporate policy can be agreement clauses in articles of association, according to which majority voting is sought.
Even corporations under public law already fulfill the status of a company with a single significant participation.
Apart from Germany, only Brazil (since 1976), Portugal (1986) and Hungary (2006) have comprehensive systematic group law . Otherwise, for example, Belgium , the Netherlands or France limit themselves to minority protection. The list of the largest corporations (measured by sales) is headed worldwide by the retail group Walmart , which failed in Germany.
- Volker Emmerich, Mathias Habersack: Stock corporation and GmbH group law. 5th edition, Munich 2008, ISBN 3-4065-5915-8 .
- Klaus Herkenroth, Oliver Hein, Alexander Labermeier, Sven Pache, Andreas Striegel, Matthias Wiedenfels: Group tax law . Gabler Verlag, Wiesbaden 2007, ISBN 978-3-8349-0474-4 .
- Eberhard Scheffler: Group management. 2nd edition, Munich 2005, ISBN 3-8006-3097-4 .
- Manfred Schulte-Zurhausen : Organization. 3rd edition, Vahlen Verlag, Munich 2002, ISBN 3-8006-2825-2 .
- Manuel René Theisen: The group - legal and economic fundamentals of the group company. 2nd edition, Schäffer-Poeschel, Stuttgart 2000, ISBN 3-7910-1487-0 .
- Jens Kuhlmann, Erik Ahnis: Group and transformation law. CF Müller Verlag, Heidelberg 2010, ISBN 978-3-8114-8180-0 .
- ^ Judith Schacherreiter, Das Franchise-Paradox , 2006, p. 166.
- ^ Judith Schacherreiter, Das Franchise-Paradox , 2006, p. 174.
- ↑ Knut Wolfgang Nörr, On the development of stock corporation and corporate law during the Weimar Republic , in: ZHR 150, 1986, p. 155 ff.
- ^ RG, judgment of May 27, 1913, Rep. II 625/12 = RGZ 82, 308
- ↑ Hans-Günther Kern, The Indeterminacy of the Independent Corporate Liability Act , 1998, p. 98
- ↑ Ludwig Wertheimer, Holding and Capital Management Companies , 1932, p. 14
- ↑ Frederick Haussmann, Foundation of the Law of Corporate Summaries , 1926, p. 1 ff.
- ^ Heinrich Friedländer, corporate law , 1927, p. 1 ff.
- ^ Heinrich Kronstein, The dependent legal person , 1931, p. 1 ff.
- ↑ BGH NJW 1995, 2989
- ↑ OLG Cologne, judgment of January 15, 2009, Az .: 18 U 205/07
- ↑ Ulrich Ehricke, The dependent group company in insolvency , 1998, p. 404
- ^ "TBB judgment"; BGH WM 1993, 687
- ↑ "Truck crane judgment"; BGH NJW 1986, 188
- ^ "MLP judgment"; BGH NJW 2001, 2973
- ↑ BGH WM 1980, 709
- ↑ BGH WM 1992, 270
- ^ "VW case"; BGH NJW 1997, 1855
- ↑ Marcus Lutter, The qualified factual group , in: AG, 1990, p. 179