The joint stock company (AG) under German law is in addition to the GmbH, the UG ( limited liability), the SE and the KGaA is one of five forms of capital society. The legal basis can be found in the First Book of the German Stock Corporation Act ( AktG).
- 2.1 Annual General Meeting ( beschließendes organ )
- 2.2 Board of Directors
- 2.3 Supervisory
- 5.1 The small Aktiengesellschaft
- 5.3 The InvAG
- 5.4 The European Company (Societas Europaea, SE)
- 5.5 The AG & Co. KG
The creation of a corporation may be effected by one or more natural or legal persons or partnerships with legal personality. It may be German nationals or foreigners, who take over the shares against contributions (§ 2 AktG). The Social Contract - the statute - must be notarized. Unlike the GmbH is not possible foundation by model protocol.
The formation occurs in three phases:
- The Vorgründungsgesellschaft ( Vorgründungskonsortium )
- The company prior to (pre -AG ), and finally
- The AG.
The Vorgründungsgesellschaft is to the notarization of the social contract ( establishment of the articles ) and is a civil-law partnership with the corporate purpose, the establishment generally cause ( by notarial contract). Unless already before visiting the notary a trade is exercised, there is a general partnership. Of course, that what such a partnership requires at least two founders - with only one founder omitted this stage.
Exists between the notarial establishment of the articles and the registration of the AG in the commercial register - even with only one founder - a company prior to (pre -AG). According to current view on this is already largely the right of the corporation to apply. The pre -AG (partially) quite capable and can at the traffic under the new company with the suffix " i.Gr. " participate. She already has a board of directors, a supervisory board and a general meeting. Only with registration is that AG "as such" created ( § 41 para 1 AktG).
The capital stock of a corporation is called share capital. The share capital of a public company in Germany is at least 50,000 euros and is divided into shares. It is applied through the acquisition of shares by the or the founders. In a cash subscription it is sufficient that 1/4 of the nominal value of each share is paid, § 36a para 1 AktG ( ie a total of at least € 12,500 - just as much as a limited liability company ). Are the shares were issued above the issue price ( " premium " or " premium "), and the full premium must be paid before the foundation (cf. § 36a para 1 AktG).
There are of par value shares and par value shares, § 8 paragraph 2, paragraph 3 of the AktG. Par value shares are issued to a certain nominal amount. The minimum nominal value of a share is at a euro. Higher nominal amounts must be expressed as euros. The piece shares a percentage of the share capital of the company is given. Here, however, no quota on the share will be noted, as these may change (for example, by issuing additional shares ) or reduction of a capital increase.
Foundation and foundation audit report
The establishment of the corporation is by the Executive Board, the Supervisory Board and in certain cases (eg property, start-ups or when founders are at the same time the Management Board or the Supervisory Board, § 33 para 2 AktG; exception in § 33a AktG) by a qualified third party (eg accountant or tax adviser ) to check. The formation auditors shall be appointed and obliged to prepare an audit report by the court after hearing the Commerce and Industry Chamber. In the cash subscriptions ( ie, in particular in the case of equality of persons Founder and CEO / Board ) the formation test can also be performed by the notary, who certifies the establishment.
Registration with the commercial register
The company was founded is by all founders to sign the first board and the first board to the commercial register ( § 36 para 1 AktG). It was only by registration in the Commercial Register AG is the legal person. The entry has at AG constitutive character ( § 41 para 1 AktG). Since the AG is a corporation, it is registered in Division B of the Commercial Register.
Liability before registration of the AG
For claims before visiting the notary, that is, before " construction " of the company ( § 29 AktG) have emerged that Vorgründungsgesellschaft or with a single founder shall be liable personally on several founders. Since it is a GbR or OHG in Vorgründungsgesellschaft, also their partners are liable (ie, all founders ) directly in the external relationship towards the creditors personally and severally liable ( § 128 sentence 1 HGB ) (at the GbR analog). The liabilities are as justified by special arrangement only on the pre -AG or the later AG.
If the - not yet registered in the commercial register - Vorgesellschaft doing business, it is liable with its assets, provided that that has already been formed. The liability of the founders apply by H. M. similar principles ( preload liability, loss coverage liability) as in the pre -GmbH - where a contingent liability of the other shareholders in the absence of a ( § 24) fails Limited Liability Companies Act relevant standard. Finally, there is (as well as in the pre- GmbH) a statutory actor liability, § 41 para 1 AktG. This applies uniformly because of the publicity policy for all corporations established in any Member State of the EU. Then stick those that occur for the predecessor company, the creditors jointly and severally for the liabilities of them justified.
With the entry of AG in the commercial register of the actors liability expires. In addition, all liabilities of the predecessor company will automatically go to the AG. If at this time the total net assets of the Company (subject to the liabilities of the predecessor company ) below the amount of capital stock specified in the statute, the founders are committed in the internal relations with the AG up to the amount of the balance sheet at the proportional fill the capital.
The corporation has three governing bodies: the Executive Board, Supervisory Board and the Annual General Meeting.
Annual General Meeting ( beschließendes organ )
The annual general meeting of the corporation consists of all the shareholders.
The position of the general meeting has the Companies Act, 1937, other than the general meetings of other clubs and corporations such as the GmbH, weak. The General Meeting may the Board who is authorized to manage, in management matters not issue instructions ( otherwise still § 235 paragraph 1 HGB old version of 1900). About The Annual General Meeting can only decide if the board requires it ( § 119 para 2 AktG).
The Annual General Meeting is entitled to rights today are:
In principle, the right to vote at the general meeting is after the share nominal amounts and par value shares by the number of exercised ( § 134 paragraph 1 sentence 1 AktG ), the Association after p.2 may also provide for other arrangements.
Multiple voting rights is justified by the statutes special right of a shareholder to issue more votes than that corresponding to its participation. A shareholder has then in relation to the equity above-average vote. Multiple voting rights were issued mainly from 1920 to 1923, in a period of high inflation, to protect against so-called alienation. Since 1998, they are not allowed in Germany by the Act on Control and Transparency in Business. Existing multiple voting accounted for within a transitional period of five years against a fair compensation of their value. However, the competent supreme authority for the economy of a country can grant multiple voting rights, where these are necessary to safeguard overriding macroeconomic concerns. Rules for multiple voting rights are regulated in § 12 Section 2 Sentence 1 AktG. The regulated by the VW law limiting voting rights to 20%, together with the statutory law of the Federal Government and the Land of Lower Saxony each to appoint two representatives to the supervisory board, which also gave the public a higher voting power than their percentage participation corresponded, according to the European Court contrary to the free movement of capital.
Is otherwise stipulated otherwise in the articles of incorporation of the corporation or regulated by a law which applies to the simple majority of votes ( § 133 AktG). For some decisions, such as an amendment ( § 179 AktG) or the liquidation of the Company ( the AG referred to as liquidator: § § 262 et seq ), the approval of at least three quarters of the represented at the meeting share capital is necessary. To prevent these decisions, the so-called blocking minority is enough.
Board of Directors
The management of a corporation, the Executive Board in accordance with § 76 para 1 AktG, composed usually of several persons. He is not instruction, but is controlled in the basic orientation of his work by the Supervisory Board. If there are several board members, is often an appointed Chief Executive Officer or CEO. The Chairman is elected by the Supervisory Board, while the CEO is determined by the full board.
The Executive Board is a service contract hired by a contractual legal agreement, usually. It represents the AG to the outside ( and out of court ), he is responsible for the overall management authority and the total power of representation (eg, accounting, financial statements ).
Each Board member shall be liable to the company pursuant to § 93 AktG personally, that is, with his personal assets, for damages ( eg breach of the duty of care of a prudent and conscientious manager ) incurred by the Company due to a culpable breach of duty. However, the companies usually include special professional liability insurance for the actions of board members (so-called " Directors and Officers Insurance ", or " D & O Insurance " ) from which protect the boards against a claim for property or pecuniary damage in negligence. For damages caused by gross negligence or willful misconduct, the insurance does not occur, so that the company can take the board to protect the shareholders to complete. The Act on the Appropriateness of Management Board Compensation ( forestay ) was also a mandatory law introduced by the insurer to be agreed upon deductible of 10 % of the loss up to the amount of 1 1/2 years' salary. This deductible, the Board but in turn assure to M. h, albeit at their own expense.
The Supervisory Board (AR) elect the members of the Management Board and supervises the Management Board activities ( § 111 para 1 in conjunction with § 84 Section 1 of the Act). The Supervisory Board is of the AG to the board members. The Supervisory Board is guided by the Chairman. The term of office of the Supervisory Board amounts to a maximum of 4 years ( § 102 para 1 AktG). In addition, the Supervisory Board is responsible for appointing the auditor. The Supervisory Board shall convene the ordinary and the extraordinary general meeting.
Rights of shareholders
A shareholder is a holder of a share in a corporation ( § 54 para 1 AktG). Shareholders, the company equipped with the company's founding or subsequent capital increases with equity, or have been acquired by the delegation of former owners. They shall exercise their rights in general by attending the Annual General Meeting, by their right to information and to receive dividends and, where applicable liquidation proceeds.
The rights of shareholders are:
- Dividend rights ( of the net profits )
- Subscription rights ( ensuring that the proportion of the share capital for capital increases )
- Share of the liquidation proceeds upon dissolution of the AG
- Right to apply to general meetings
- Right to attend general meetings
- Right to vote at general meetings
- Right to information society matters that are necessary for the assessment of items on the agenda at the AGM
- Right of appeal in cases of suspected non- statutory approval at the Annual General Meeting
For listed companies, these rights can be transferred to the depositary bank ( for one or all general meetings over a maximum of 15 months). A transfer to other natural or legal persons (association, business partners, friends, acquaintances) possible. With the delegation of voting rights, a particular behavior when voting in order to be given.
By voting preference shares, the right of shareholders is limited, and these are generally compensated by a higher dividend.
Besides its own establishment of a corporation is also possible to buy a ready- founded AG. These so-called shelf companies that have made any business since its inception, will be sold with a fully paid share capital.
A corporation may raise additional capital through a capital increase. The capital increase may (but need not ) with the issue of shares (emission ) line.
About one out of minority shareholders, the majority shareholder in Germany can rule against compensation under certain conditions, all of the remaining minority shareholders.
The small Aktiengesellschaft
In 1994, the Corporation Act was amended by the "law of small public companies and deregulation of corporate law ." The small corporation as a separate legal form but there is no. However, the legislature has introduced a number of schemes in the German Stock Corporation Act, which are more easily met by small public companies. For example, § 121, paragraph 4, sentence 1 AktG requires that the notice of meeting is to " make known the newspapers ." If the shareholders of the company are known by name, it is sufficient, however, to invite the shareholders by registered letter ( § 121 para 4 sentence 2 AktG). It is important for small public companies a statutory provision outside of the German Stock Corporation Act: According to § 1 para 1 No. 1 of the Third Participation Act of 2004 (formerly § 76 para 6 WCA) does not apply to fewer than 500 employees whose participation in the Supervisory Board.
The non-profit AG ( CJSC ) is the special case of a non-profit making corporation that is tax benefits pursuant to the provisions of the Tax Code. It is rare in practice.
The investment stock corporation ( InvAG ) is a special case of an investment company with variable capital, which represents the potential legal case for investment funds in addition to the fund.
The European Company (Societas Europaea, SE)
The European Company, also called Latin Societas Europaea and abbreviated SE is a public limited company under European law to which is additionally apply national law of the State in which it has its seat. Therefore, an SE is headquartered in Germany is subject primarily European and secondarily to German corporate law, which is why they can also be regarded as a special form of the AG.
The AG & Co. KG
The AG and Co. KG is a limited partnership whose general partner / complementary is not a natural person ( it was a limited partnership ), but a corporation. They thus similar to the more famous GmbH & Co. KG, which is also a limited partnership in which the general partner but is a limited company. So therefore it is in the AG & Co. KG is not a special form of the AG, but a special form of KG.
As the first German stock corporation applies the Brandenburg- African Company. She was born on March 17, 1682 by edict of Frederick William, Elector of Brandenburg, established as a trading Company on the coasts of Guinea to mobilize the necessary resources to act on the African coast with pepper, ivory, gold and slaves. These were then the first companies in the form of "real" stock clubs.
It followed the establishment of the Emden trading companies, and later in 1770 in Prussia, the cereal Companie on the Oder and Berlin in 1793, the sugar mill.
From 1794, the General Land Law (ALR ) governed in Prussia and company law. Consequently, there were corporately authored companies ( Societas personarum ), which provided in addition to permitted and prohibited private companies also privileged companies and corporations and municipalities. The legal form of " joint-stock company " was not mentioned in this law. It developed specific rules such as the " Code de commerce " from in 1807. Preparatory work for a German stock corporation law, there were already part of the general revision of legislation from 1817. At that time, however, a non-profit organization purpose was provided for public companies.
In 1821, the Rheinisch- West India Companie to promote exports and attracting new overseas markets has been established.
The first German Stock Corporation Act (Law on public limited companies ) occurred from November 9, 1843 by order of the Prussian king in power.
The General German Commercial Code ( ADHGB ) was adopted on 31 May 1861 by the Federal Assembly and contained in the second book legal requirements for the formation of public limited liability companies and partnerships limited by shares.
On June 11, 1870 came the first company law amendment, by Decision of the Reich Law for the North German Confederation, in force. This freed the joint-stock companies by the state licensing and supervision and managed for private legal normative conditions, ie every public company must have a supervisory board. The minimum amount for a share was set at 50 Vereinsthaler. To what extent the change of company law in Germany changed the corporate culture and the founder coined time, show the following figures: In the years 1867-1870 88 shares companies were established in Prussia, 1871-1873, there were 928 new companies.
As birth of the modern German Aktiengesellschaft is seen for the General German Commercial Code generally, which came into force on July 18, 1884 2 share law amendment.
The Commercial Code on May 10, 1897 replaced the ADHGB of 1861.
In the first episode were issued only two emergency decrees of 19 September 1931, from October 6, 1931 A major reform took place with the Companies Act of 30 January 1937.; this in turn was modified by numerous emergency decrees.
In 1959, first was an early "small" company law reform before 1965, the Companies Act and the introduction of the law were announced to the Stock Corporation Act, which form the basis of today's legal situation.
The German Stock Corporation Act was amended by several smaller reforms, some people talk of " corporate law reform in perpetuity ". The last major reform was the law for the implementation of the Shareholder Rights Directive of 30 July 2009.