Archives: Mitarbeiter

Disputes between shareholders are conceivable in all company forms (e.g. BGB-Gesellschaft, OHG, KG, GmbH & Co. KG, GmbH, AG). Even if tailor-made articles of association can help to avoid disputes, experience shows that there may be differences of opinion that need to be resolved regardless of the contractual provisions. These differences of opinion may relate to investments, financing, the expansion or discontinuation of a business division or even decisions on the appropriation of profits or the dismissal of managing directors. If it is not possible to resolve the disagreements at the shareholders’ meetings, attempts to settle disputes out of court make sense. As a rule, formal and material defects in shareholder resolutions and disputed voting results are challenged in court.

When answering liability questions in company law, the first thing that matters is the legal form of the company. This in turn determines whether shareholders or executive bodies of the company can be liable in addition to the company. Ultimately, company law distinguishes between internal liability, i.e. the liability of the acting bodies (managing directors or management board or possibly also advisory board or supervisory board) towards the company, and external liability, i.e. the direct liability of other acting persons or companies towards the company’s creditors. In the event of the insolvency of a company, an insolvency administrator pays increased attention to the possible liability of other persons or companies.

Management board members and managing directors are generally granted a wide scope of action when managing the business of a company, which, in addition to consciously taking business risks, also includes the danger of misjudgments and errors of assessment. This business decision-making discretion is limited by laws, articles of association or rules of procedure. If the board members or managing directors act within this scope of action, they are not acting in breach of duty. An obligation to pay damages (liability) only comes into consideration if the limits are exceeded within which responsible action must be taken that is exclusively oriented towards the interests of the company and is based on careful investigations.

A supervisory board is a supervisory body for corporations, cooperatives, foundations and organizations. The establishment of a supervisory board is partly prescribed by law (e.g. in the case of a stock corporation), partly agreed in the articles of association or partnership agreement. For example, the law of the GmbH does not recognize a mandatory supervisory board if the number of employees of a GmbH does not require the formation of a mandatory supervisory board due to co-determination.

A supervisory board is made up of elected representatives of the shareholders and, in the case of large companies, also of the employees. The Supervisory Board is usually responsible for advising the Management Board, but in particular for monitoring and controlling it.

In banking law, a distinction must be made between private banking law and public banking law.

Private banking law deals with the relationship between banks and customers and the relationship between banks themselves. The related civil law regulations are spread across numerous laws and, in the case of consumers as customers, are also influenced by European law. Private banking law is also shaped by the banks’ terms and conditions and, within the banking industry, by banking agreements.

In public banking law, public regulations deal with the state’s supervision of the banking industry. The objectives of banking supervision are to counteract irregularities that could jeopardize the security of the assets entrusted to it, that could impair the proper execution of banking transactions or that could result in significant disadvantages for the economy as a whole. Banking supervision in the Federal Republic of Germany is exercised by BaFin. As an independent body of the EU, the ECB is responsible for banking supervision from a European perspective.