Articles of Association (private law)

from Wikipedia, the free encyclopedia

The articles of association under German civil law by legal transaction founded Constitution (Basic Regulation) a legal person of private law , in particular associations, foundations and public companies with efficacy for their nationals or persons subject. It is mostly based on a contract between the founders of the legal entity and can be changed by subsequent resolution. As a rule, the law prescribes a certain minimum content for statutes. Depending on the legal form of the legal person, the articles of association may require a specific form .

The term statutes is also used in Austrian and Swiss association law .

General

The statutes of an association under private law are an expression of private autonomy . Despite legal requirements for the content, it does not have the character of a state legal norm . In the hierarchy of norms , it ranks below the state legal norms.

Germany

society

The submission of a statute is one of the conditions that an ideal association ( § 21 BGB ) must meet to register for the association register in order to acquire legal capacity ( § 59 , § 60 BGB).

The minimum content of the statutes of a registered association results from § 57 BGB, § 58 BGB contains target provisions .

The purpose, name and seat of the association as well as the fact that the association is to be registered are mandatory. In addition, the statutes should contain provisions

  1. on the entry and exit of members,
  2. about whether and which contributions are to be made by the members,
  3. about the formation of the board,
  4. about the conditions under which the general assembly is to be called, about the form of the appointment and about the certification of the resolutions.

The association's statutes can, but need not, be drawn up in writing. For registered associations, the written form is more suitable for submission in the association register.

Changes to the statutes also require entry in the register of associations ( Section 71 BGB) to be effective .

Foundation, endowment

Through the foundation business , the foundation must also receive statutes. The foundation business among the living requires the written form ( § 81 , § 85 BGB).

The statutes must contain provisions about

  1. the name of the foundation,
  2. the seat of the foundation,
  3. the purpose of the foundation,
  4. the assets of the foundation and
  5. the formation of the foundation's board of directors.

Corporation

When establishing a stock corporation (AG), the articles of association require notarial certification ( § 23 , § 28 AktG ). The application for entry in the commercial register must be accompanied by the articles of association ( Section 37 (4) No. 1 AktG).

Until the establishment of the articles by notarization is a Vorgründungsgesellschaft , until the registration in the commercial register a predecessor company .

In accordance with Section 23 (2) AktG, the notarial deed must state:

  1. the founders;
  2. In the case of shares with a nominal value, the nominal amount, in the case of shares the number, the issue price and, if there are several classes , the class of shares that each founder takes over;
  3. the paid-in amount of the share capital .

In addition, the articles of association must determine in accordance with Section 23 (3) AktG

  1. the name and seat of the company;
  2. the purpose of the company; in particular, in the case of industrial and trading companies, the type of products and goods that are to be manufactured and traded must be specified in more detail;
  3. the amount of the share capital;
  4. the division of the share capital into either par value shares or no-par shares, in the case of par value shares their nominal values ​​and the number of shares of each nominal amount, in the case of no-par shares the number, and if there are several classes, the class of shares and the number of shares of each class;
  5. whether the shares are issued to the bearer or to the name ;
  6. the number of members of the board of directors or the rules according to which this number is determined

and the form of the company's announcements (Section 23 (4) AktG).

The principle of strictness of the statutes applies . According to Section 23 (5) of the AktG, the provisions of the Stock Corporation Act cannot be waived in the Articles of Association .

The general meeting reserves the right to amend the articles of association ( Section 119 (1) No. 5 AktG).

Austria

society

According to the Association Act 2002 (VerG), the establishment of an association requires the agreement of statutes (founding agreement ) by at least two people. The establishment is to be reported to the district authority in its capacity as association authority by submitting the statutes. The association authority checks whether the establishment of the association would be illegal according to its purpose, its name or its organization and therefore cannot be permitted. The assessment standard is Article 11, Paragraph 2 of the European Convention on Human Rights (ECHR), which contains the permissible restrictions on freedom of association . If the examination procedure is successful, the association is created as a legal entity and is allowed to start its activity (§§ 1, 2, 9, 11, 12 VerG).

In accordance with Section 3 (2) of the Association Act 2002, the articles of association must contain:

  1. the club name,
  2. the seat of the association,
  3. a clear and comprehensive description of the association's purpose,
  4. the activities planned for the realization of the purpose and the manner in which financial resources are raised,
  5. Provisions on the acquisition and termination of membership,
  6. the rights and obligations of association members,
  7. the organs of the association and their tasks, in particular clear and comprehensive information on who conducts the business of the association and who represents the association externally,
  8. the type of appointment of the association's bodies and the duration of their term of office,
  9. the requirements for valid resolutions by the association's bodies,
  10. the type of arbitration of disputes arising from the association relationship,
  11. Provisions on the voluntary dissolution of the association and the utilization of the association's assets in the event of such a dissolution.

Foundation, endowment

The private foundation is established by means of a notarized declaration of foundation and is created when it is entered in the commercial register ( Section 7 of the Private Foundation Act - PSG). The declaration of foundation is the essential legal basis for private foundations among the living as well as for those due to death, comparable to the articles of association or the articles of association of a corporation.

In accordance with Section 9 (1) PSG, the declaration of foundation must contain:

  1. the dedication of the property;
  2. the purpose of the foundation;
  3. the name of the beneficiary or the details of a body to be used to identify the beneficiary; this does not apply if the purpose of the foundation is aimed at benefiting the general public;
  4. the name and registered office of the private foundation;
  5. the name and address of the founder that is relevant for delivery, the date of birth for natural persons and the commercial register number for legal entities that are entered in the commercial register;
  6. information on whether the private foundation is being set up for a definite or an indefinite period.

In addition, Section 9 (2) PSG regulates optional content that can be included in the declaration of foundation, but is typically included in additional foundation deeds ( Section 10 PSG).

Corporation

The Stock Corporation Act refers to the articles of association of a stock corporation in Section 2 (1) AktG as a partnership agreement . The other regulations then speak of statutes .

The statute must be established in the form of a notarial act . The application for entry in the commercial register must also be accompanied by the articles of association (Section 29 (2) AktG).

The articles of association must stipulate (Section 17 AktG):

  1. the name and seat of the company;
  2. the purpose of the company;
  3. the amount of share capital and whether bearer or registered shares are issued;
  4. whether the share capital is divided into shares with a par value or shares, the par value of the individual shares in the case of shares with a par value, the number of shares in the case of shares and, if there are several classes, the class of the individual shares;
  5. the type of composition of the board (number of board members);
  6. the form of the company's publications.

For historical reasons, the legal regulations in the Austrian Stock Corporation Act largely correspond to German law.

Switzerland

The legal basis for the association can be found in the Swiss Civil Code (Art. 60 ff. ZGB). The statutes must be in writing and provide information about the purpose of the association, its means and its organization. If the association's statutes are accepted and the board of directors is appointed, the association is authorized to be entered in the commercial register. The registration must be accompanied by the statutes and the list of board members (Art. 61 ZGB).

Insofar as the statutes do not lay down any regulations about the organization or the relationship between the association and its members, the provisions of the Civil Code apply. Provisions, the application of which is required by law, cannot be changed by the Articles of Association (Art. 63 ZGB).

The foundation is regulated in Art. 80 ff. ZGB. It is established by a public deed (foundation deed) or by a disposition upon death, which also determines the organs of the foundation and the type of administration.

Other countries

In Belgium , France and Italy , the public limited company can set additional issuer-specific reporting thresholds in the articles of association.

literature

  • Gerhard Köbler: Articles of Association . In: Horst Tilich, Frank Arnold (Hrsg.): Deutsches Rechts-Lexikon . Vol. 3rd 3rd edition CH Beck, Munich 2001, ISBN 978-3-406-48054-6 , p. 3674. (especially on the importance of association law)
  • Günter H. Roth: Articles of Association (corporate law) . In: Horst Tilich, Frank Arnold (Hrsg.): Deutsches Rechts-Lexikon . Vol. 3rd 3rd edition CH Beck, Munich 2001, ISBN 978-3-406-48054-6 , pp. 3674-3676. (on the corporate law significance)

Web links

Individual evidence

  1. ^ Statute Rechtslexikon.de, accessed on December 11, 2019
  2. ↑ Johannes Grooterhorst: § 81 foundation business BGB.Kommentar.de, November 5, 2015
  3. ^ Claudia Pleßke: The strictness of the statutes in company law. More design freedom for the public limited company, which is remote from the capital market . European university publications, Frankfurt am Main, Berlin, Bern, Brussels, New York, Oxford, Vienna 2007. ISBN 978-3-631-56380-9
  4. ↑ Martin Krumschnabel: Austrian Association Law Brief summary of the legal provisions, bases 2014
  5. ↑ Founding of the association oesterreich.gv.at , content as of January 1, 2019
  6. ↑ Erste Bank (ed.): The Austrian private foundation. Handbook for Donors Vienna 2014, p. 14
  7. ↑ Erste Bank (ed.): The Austrian private foundation. Handbook for Donors Vienna 2014, p. 16
  8. ↑ Wendelin Ettmayer: What unites us, what differentiates us: Organizational constitution of stock corporations in Austria and Germany October 1, 2019
  9. ↑ Civil Code
  10. ↑ ESMA individual answers from CESR members (pdf; 1.2 MB) . ESMA website. Retrieved October 14, 2012.