Right to vote
Under the right to vote which is generally right understood at a conference convened coordination with a specific voting weight to take part. In Switzerland it means the right to take part in referendums and elections , and thus also includes the right to vote .
General
The voting right forms part of a decision-making process. Voting rights are required to be able to participate in the decision-making process Voting is called voting. The vote is a unilateral declaration of intent that requires receipt and is aimed at accepting or rejecting a motion for a resolution. The abstention - where allowed - a legal institute of the resolution and means that a voting member agrees neither for nor against the proposal. However, abstentions can appear like a no if there is a quorum or a majority of voters (not voters) is required to approve a motion.
In associations of persons and businesses the right to vote to the right of the members or related interests in the decisions of the principal , General , membership or shareholders' meeting to vote. Voting rights for shares are regulated particularly extensively by law. In parliaments, corporations under public law or the representative bodies of social insurance, the exercise of voting rights is called voting . In terms of language, however, voting is only the process of exercising / exercising voting rights.
Voting rights
In a stock corporation or partnership limited by shares, the voting right is the membership right to which every shareholder is entitled, which is to be exercised at the general meeting according to the nominal amount of the shares ( nominal value shares ) or according to the number of shares ( no- par shares ) ( Section 134 (1) AktG). It cannot be withdrawn from the shareholder. Be the exercise can only under certain conditions excluded (for example in its own shares , § 71b AktG and preference shares , § § 139 to § 141 AktG). The voting right is suspended in the case of own shares, i.e. shares that the issuing company holds in its own holdings ( Section 56 (3) sentence 3 AktG). The right to vote is also excluded for members of the executive board and supervisory board who own shares in their company if the resolution is to discharge them , assert a claim against them or release them from a liability ( Section 136 (1) AktG). A shareholder is also excluded from voting rights if the resolution affects a company that is dependent on him. In the case of mutual participation, voting rights are restricted ( Section 328 (1) AktG).
requirements
Formal requirements for the condition and form of exercising voting rights are set out in the respective company articles of association (Section 134 (4) AktG). The Articles of Association can make the exercise of voting rights dependent on the shareholders' registration for the General Meeting ( Section 123 (2) AktG). This is common practice at listed companies, because only in this way can it be organizationally taken into account how many shareholders will attend the general meeting.
The law on corporate integrity and modernization of the right of avoidance (UMAG) , which came into force in November 2005, reformed voting rights at listed companies. According to this, a certificate of the shareholding of a shareholder is required, which is to be issued by the custodian bank . The evidence must relate to the 21st day before the general meeting - the so-called "record date" - and must be received by the company no later than the seventh day before the general meeting. Such a “record date” is customary internationally and is prescribed throughout Europe by the EU Shareholder Rights Directive (but not specifically designated as such).
exercise
The law to implement the Shareholder Rights Directive (ARUG) came into force on September 1, 2009. The occasion was the aforementioned Directive 2007/36 / EC on the exercise of certain rights by shareholders in listed companies. The aim of this reform was to provide better information and to make it easier for shareholders to exercise their voting rights. By simplifying the proxy voting rights of banks, the law aims to further increase the presence of shareholders at the general meeting ( Section 124a AktG). Listed companies are subject to a general internet publication requirement. According to a press release from the Federal Ministry of Justice, “joint stock companies should use modern media to a far greater extent when preparing and holding the general meeting. This improves the information situation for shareholders of listed companies and makes it easier for them to exercise their shareholders' rights across borders. ”This would prevent random majorities in the general meeting, especially if the shareholders are scattered around the world and personal participation in the general meeting is too cumbersome and expensive for them . For example, in Section 118 (1) AktG, online participation in the general meeting is provided; In addition, shareholders now have more options to exercise their voting rights if they do not want to attend the Annual General Meeting in person. Instead of appointing a representative, the shareholder can also exercise his voting right by postal vote if this is provided for in the company's articles of association (Section 118 (2) AktG).
Depository or banking voting rights
The voting rights for custody accounts or banks have been reformed over time. Until December 31, 2009, the respective broker through whom the share was acquired was also authorized to exercise voting rights at public companies in the United States . Now every shareholder has to take care of his voting rights himself.
The “automatic” voting rights for custody accounts were abolished in Germany when the German Stock Corporation Act came into force on December 6, 1965.
In Germany, banks have extended options for obtaining a written power of attorney - which can be revoked at any time - to cast votes ( Section 135 AktG), whereby they must disclose conflicts of interest - for example in the case of their own participation in the stock corporation.
The voting right can be exercised by a proxy; the power of attorney must be in writing (Section 134 (3) AktG; so-called proxy shareholder). Listed companies offer a proxy, usually an employee of the company, who votes according to the instructions of the shareholders. The voting right can also be exercised through shareholders' associations.
Voting rights in other corporate forms
In the case of the GmbH , resolutions are generally passed with a majority of the votes cast in or outside the shareholders' meeting , with each euro of a share granting one vote ( Section 47 (2) GmbHG). In contrast to commercial partnerships, the decision-making process in a GmbH is formalized by law. In the case of commercial partnerships , voting is a form of will formation in the internal relationship of the shareholders. At the OHG , a shareholders' resolution must be made unanimously in accordance with Section 119 (1) HGB. If, according to the articles of association, the majority of votes is to decide, in case of doubt this is calculated according to the number of shareholders, but not according to the capital or profit share (Section 119 (2) HGB). In the case of a limited partnership , the limited partner has to participate equally in fundamental shareholder resolutions (such as amending the articles of association, adding new shareholders, dissolving the company).
Bankruptcy proceedings
The creditors who are present or represented take part in the creditors' meeting regardless of their insolvency privileges. The creditors of established insolvency claims (§ § 76 ff. InsO) and the creditors of disputed claims are entitled to vote, provided that the administrator and creditors entitled to vote have agreed on the right to vote ( § 77 Paragraph 2 InsO). The resolutions are passed with an absolute majority of votes on the basis of the amounts claimed. When voting on the acceptance of the insolvency plan, on the other hand, the approval of the majority of the non-privileged insolvency creditors present or represented at the appointment is required. These must dispose of at least half of the total of all claims entitled to vote (total majority).
Voting rights in elections
In public political elections, the right to vote is one of the political rights alongside the right to vote , the right of initiative, the right of referendum and the right to petition . If foreign nationals have this right, one speaks of the right to vote for foreigners . In Switzerland , voting rights can be exercised at federal level, for example when voting on popular initiatives or referendums . Further forms of voting rights exist at the cantonal and communal level.
In the case of non-public elections and votes, those entitled to vote can have different voting weights . Larger federal states have more votes than smaller ones in the German Bundesrat .
literature
- Wolfgang Ernst: Small voting primer. Guide to the Congregation. Book publisher Neue Zürcher Zeitung, Zurich 2011, ISBN 978-3-03823-717-4 .
See also
- Ordinary share , form of securitization of the voting rights of stock corporations
- Notification of voting rights , notification of ownership of a certain share in a stock corporation
Web links
Individual evidence
- ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations, 2008, p. 436
- ^ Jan Wilhelm, Corporation Law , 2009, p. 438 f.
- ↑ 2007/36 / EG (PDF) of July 11, 2007
- ↑ Bundestag passes ARUG: Good times for online shareholders - bad times for professional plaintiffs, dated May 29, 2009 ( memento of the original dated December 29, 2010 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.
- ↑ Exercise your Shareholder Voting Rights in Corporate Elections (PDF; 725 kB) on sec.gov
