The terms parent company and subsidiary are specific legal terms used in (2) and German Commercial Code . According to this, parent and subsidiary companies are affiliated companies that are to be included in the consolidated financial statements of the parent company as part of full consolidation (Section 290 (1) sentence 1 HGB). This regulation is based closely on IAS 27.13, according to which subsidiaries that are (can) be controlled by a parent company are to be included in the consolidated financial statements. The prerequisite is that the parent company can exercise direct or even indirect controlling influence over the subsidiary. The parent company leads, the subsidiary is managed. Sister companies are companies that have a joint parent company (according to the legal definition for credit institutions in (1) No. 7 KWG ).
It is a subsidiary if another company
- holds a stake in the amount of the majority of the voting rights (Section 290 (2) No. 1 HGB; according to IAS 27.13a at least half of the voting rights) in the company or
- Is a shareholder with any share and has the right to appoint or dismiss the organs of the company (Section 290 Paragraph 2 No. 2 HGB; according to IAS 27.13c, the majority of the management bodies can determine) or
- can exercise a controlling influence on the company based on a domination agreement , profit transfer agreement or the articles of association (Section 290 (2) No. 3 HGB; can determine financial and business policy according to IAS 27.13b) or
- there is a participation in accordance with Section 271 (1) HGB and uniform management (Section 290 (1) HGB).
Even if more than half of the voting rights are not held, control can be based on other facts (IAS 27.13). After signing a domination agreement, the subsidiary operates in the interests of the parent company. In accordance with IAS 27.10, the parent company has to consolidate its subsidiaries in a consolidated financial statement worldwide (IAS 27.12).
Motives for founding
Subsidiaries were and are founded in particular to separate the individual areas of activity and make them more transparent in conglomerates with a horizontal or vertical group structure. As part of the divisionalization, the same purpose can be achieved with self-established subsidiaries. With outsourcing , a division is no longer part of the actual core business of a company. The independence as a subsidiary can take place with the aim of later selling the subsidiary in whole or in part. In these cases, the parent company itself establishes subsidiaries; this is also referred to as affiliation . An outsourcing affiliation is when existing activities are outsourced, an associated affiliation is when capacities are to be expanded. One speaks of affiliation when a subsidiary is acquired as part of a company acquisition, for example in order to use synergy effects or to increase market power .
It does not matter whether the parent company actually exercises its rights with the subsidiary, because the opportunity to exercise is sufficient. In the case of uniform management, however, this right must actually be exercised. Uniform management means that the parent company enforces its business policy at the subsidiary in at least one of the operational functions ( procurement , production , financing , sales ) or through interlinking of the management bodies. No special legal form is required for a subsidiary . In accordance with the extensive authority of the parent company in the contracting group, transactions can be concluded with the subsidiaries to which “an orderly and conscientious manager” of an independent company ( (2 ) AktG ) would not have consented.
According to the so-called " Parent- Subsidiary Directive" ( Directive 90/435 / EEC ( Parent- Subsidiary Directive) ), a minimum stake of the parent company of 10% in the subsidiary's capital is sufficient for the common tax system of the parent and subsidiary companies ( until 2006: 20%; until 2008: 15%). In terms of the trade tax privilege , the national participation rate is 15%, for investments in EU corporations at least 10% of the capital.
Parent Company Liability
At AG and KGaA there are extensive mechanisms for the purpose of protecting creditors in the relationship between parent and subsidiary. The initial assets of the subsidiary are protected by § to AktG, in addition there is a special liability of the legal representatives (§ to AktG). The core is the statutory loss compensation claim of AktG in the contract group. The parent company has to compensate for the losses of the controlled subsidiary (§ 302 AktG) and after termination of the domination or profit transfer agreement to provide security to the creditors of the subsidiary (§ 303 AktG). An annual deficit can therefore not arise at the subsidiary due to the loss compensation obligation of the parent company on the balance sheet date ( (3) sentence 2 HGB). If the parent company receives the subsidiary's profits on the basis of a profit transfer agreement or is allowed to issue instructions to the subsidiary based on a domination agreement ( AktG), it must also bear the risk of loss. In the de facto stock corporation, the parent company may not use the possibilities of influence to induce its subsidiary to take a disadvantageous action ( AktG), since otherwise it will be liable for damages ( AktG).
However, the parent company's liability for the subsidiary's debts is not limited to these few legal cases. Jurisprudence and literature deal with the legal question of whether and to what extent the parent company is liable for the debts of its subsidiary if the latter has the legal form of a corporation. As a rule, there is the principle of separation , according to which private assets and corporate assets are strictly separated from each other in corporations. According to Paragraph 1 Clause 2 AktG and Paragraph 2 GmbHG , the creditors of the AG and the GmbH are only liable for their corporate assets. If the subsidiary's company assets are not sufficient to repay the company's debts, the parent company is usually not liable.
The creditors of the subsidiary are entitled to their own claims against the parent company, which is liable for the liabilities of its subsidiary analogously to §§ 128, 129 HGB. If penetration liability is permitted, the parent company is exceptionally directly and unrestrictedly liable in accordance with (1) and German Commercial Code. The facts of capital maintenance (§ , AktG, , GmbHG) take precedence and replace, where they can intervene, the direct liability. A thin capitalization may not lead to direct liability without supervention other circumstances. It must be a material undercapitalization, because the legal form-related limitation of liability of the subsidiary is then inappropriate and thus leads to the liability of the parent company for the liabilities of its subsidiary. A false direct liability exists if the parent company has issued guarantees or letters of comfort as security for loans to the subsidiary in favor of its subsidiary .
- Ewald Aufermann, Grundzüge Betriebswirtschaftlicher Steuerlehre , 1959, p. 44.
- Hartmut Bieg / Heinz Kussmaul, External Accounting , 2006, p. 375.
- Susanne Wimmer-Leonhardt , corporate liability law , 2004, p. 13 ff.
- Susanne Wimmer-Leonhardt, corporate liability law , 2004, p. 64.
- Jan Wilhelm, Corporation Law , 2009, p. 189.
- BGH ZIP 1999, 878, 879.