No Stock Options for Supervisory Board Members of a German Stock Corporation: A Comment on In re Mobilcom AG, BGH II ZR 316/02 of 16 February 2004

2004 ◽  
Vol 5 (4) ◽  
pp. 347-354 ◽  
Author(s):  
Dirk Reidenbach
Keyword(s):  
Stock Options ◽  
Supervisory Board ◽  
Federal Court ◽  
Board Members ◽  
Management Board ◽  
Federal Court Of Justice ◽  
German Stock ◽  
The Law ◽  
Near Future ◽  
Stock Corporation

On February 16th, 2004 the German Federal Court of Justice (Bundesgerichtshof, BGH) delivered a judgment concerning stock options for members of the supervisory board of Mobilcom AG, a major German telecommunications company organized as a stock corporation. As is well known, German stock corporations have a two-tier board, consisting of the management board and the supervisory board. This decision by the BGH sheds again a new light on the much discussed and much disputed management structure of German stock corporations. After this decision, there are now only limited ways in which members of the supervisory board may be compensated with stock options, if at all. In the near future, even these possibilities might be foreclosed by new regulation. The following comment will give a brief overview of the case, the reasoning of the Court, the law as it stands, and finally the law as it might become.

Enthaftung durch Zustimmung

2021 ◽  
Author(s):  
Liska Müßig
Keyword(s):  
Limited Liability ◽  
Board Members ◽  
Legal Certainty ◽  
German Stock ◽  
The Law ◽  
Stock Corporation

Can board members and managing directors effectively exempt themselves from liability by having the shareholders approve the act in advance? The work is intended to contribute to more legal certainty in dealing with “exclusion of liability”. While the exculpatory effect of consent is recognised in principle, the details of conditions and limits are still controversial. The author discusses important issues in connection with the provision on exclusion of liability of Section 93 (4) sentence 1 of the German Stock Corporation Act. In the absence of a corresponding provision in the law governing limited liability companies, the author subsequently examines the extent to which the results obtained can be applied to limited liability companies.

scholarly journals LEGAL REGULATION OF THE PORT OF TALLINN

2020 ◽  
Vol 6 (72) (2) ◽  
pp. 20-30
Author(s):  
B. V. Zmerzlu
Keyword(s):  
Supervisory Board ◽  
Legal Regulation ◽  
Board Members ◽  
Joint Stock Company ◽  
Current Version ◽  
Stock Company ◽  
Sea Transport ◽  
Management Board ◽  
Rules Of Procedure ◽  
The Law

The article States that the organization of activities and management of commercial ports in Estonia is organized on the basis of the law on ports and the law on commercial sea transport in the current version. The port of Tallinn received its modern legal organization in 2018 with the formation of the corresponding joint-stock company and registration on the Nasdaq Tallinn exchange on June 13, 2018. the Basic regulations governing the system of its higher management are the «Regulations on the Association of Aktiaselts Tallinn Sadam» and «Rules of procedure of the Supervisory Board of Aktiaselts Tallinn Sadam». In them set out the procedure for possession and use of the stock of this company, Supervisory Board, management Board and other bodies working on permanent and temporary foundations; requirements for Board members.

The Limitations of the Management Board's Directive Powers in German Stock Corporations

2010 ◽  
Vol 11 (5) ◽  
pp. 493-512 ◽  
Author(s):  
Lars Böttcher ◽  
Sebastian Blasche
Keyword(s):  
Supervisory Board ◽  
Organizational Form ◽  
Corporate Law ◽  
Board Structure ◽  
Management Board ◽  
German Stock ◽  
Stock Corporation ◽  
The U.S

The limitations of the management board's directive powers in German Stock Corporations are an important issue in German Corporate law. The German Stock Corporation or Aktiengesellschaft (“AG”) is the corporate organizational form most directly comparable to the publicly held corporation in the U.S. It is regulated by the German Stock Corporation Act (AktG). The defining feature of the AG is a two-tier board structure containing both a management board (Vorstand), which is in charge of managing the corporation, and a supervisory board (Aufsichtsrat), which is elected by the shareholders' meeting (Hauptversammlung) and which appoints and supervises the management board. The two boards are completely separate from each other, no overlap in membership is permitted.

Does gender diversity in supervisory boards affect gender diversity in management boards in Germany? An empirical analysis

2021 ◽  
pp. 239700222199714
Author(s):  
Dennis Fleischer
Keyword(s):  
Fixed Effects ◽  
Structural Equation ◽  
Gender Diversity ◽  
Supervisory Board ◽  
Board Members ◽  
Governance System ◽  
Management Board ◽  
Supervisory Boards ◽  
Gender Quota ◽  
The Impact

Social aspects like gender diversity in the boardroom are becoming increasingly relevant and are a popular topic of public debate in the context of gender equality in business. However, there is little clarity about the potential spill-over effects of gender diversity. Both theory and empirical results have led to ambiguous conclusions with respect to the effect of gender diversity in the supervisory board on gender diversity in the management board. In addition, it is not clear whether the German gender quota legislation positively affects this relationship. This study analyses whether gender diversity in the supervisory board supports the gender diversity of the management board, and whether this relationship is affected by the gender quota legislation, focusing on the unique case of Germany. To cope with endogeneity concerns, this study employs a cross-lagged panel model with fixed effects using maximum likelihood structural equation modelling. The results of the analysis of the impact of the number of female supervisory board members on the number of female management board members do not support the view of positive spill-over effects of gender diversity in the environment of the German two-tier corporate governance system. Furthermore, this study finds no evidence of an effect of the German gender quota on this relationship. JEL Codes G38, M12, M14, M51

Geschäftsleiterbinnenhaftung in Großvereinen

2021 ◽  
Author(s):  
Anton Leopold Nußbaum
Keyword(s):  
Supervisory Board ◽  
Economic Importance ◽  
Board Members ◽  
Legal Practice ◽  
Corporate Board ◽  
Corporation Law ◽  
Common Interests ◽  
Practical Analysis ◽  
Stock Corporation

The internal liability of managers of large associations is becoming increasingly relevant in the context of their growing economic importance, especially considering the stricter compliance obligations. The book develops de lege lata with the help of corporate principles a liability regime for board members and association managers with and without corporate board positions that is in line with common interests. At the same time, the author uses a practical analysis of various association structures to indicate the problems that exist in the realization of liability and recommends de lege ferenda for a mandatory supervisory board for large associations based on the model of stock corporation law. The work addresses equally academics and legal practice as well as the associations themselves.

scholarly journals Board committee practices in Ukraine

2005 ◽  
Vol 3 (1) ◽  
pp. 114-116 ◽  
Author(s):  
Alexander Kostyuk
Keyword(s):  
Corporate Governance ◽  
Audit Committee ◽  
Supervisory Board ◽  
The State ◽  
Board Members ◽  
Governance Mechanisms ◽  
Management Board ◽  
Corporate Governance Mechanisms ◽  
Audit Commission ◽  
Financial Transactions

International board practice concerning establishing committees on the board is still not spread in the Ukraine. The state obliged Ukrainian joint stock companies to establish an audit commission. But the commission is not on the supervisory board. It is not an integral part of the board. Members of the audit commission are prohibited to be members of the supervisory board at the same time. Although the audit commission reports to the supervisory board, objectives of the audit commission are narrowed only to controlling financial transactions executed by the management board. Therefore, it is worth of establishing an audit committee on the supervisory board with a broader spectrum of functions and equipped with the deepest knowledge on corporate governance mechanisms.

scholarly journals Ovlasti nadzornog odbora u svezi s nadzorom uprave sportskog dioničkog društva

2019 ◽  
Vol 56 (2) ◽  
pp. 377-399
Author(s):  
Ratko Brnabić
Keyword(s):  
Board Member ◽  
Supervisory Board ◽  
General Meeting ◽  
Point Of View ◽  
Board Members ◽  
Executive Board ◽  
Checks And Balances ◽  
Management Board ◽  
Management Measures ◽  
Executive Body

The Supervisory Board of the Sports Joint stock Companies acts as the representative organ of the shareholders between the General Meeting and the Executive Board: the General Meeting elects (or privileged person/shareholder simply names) the members of the Supervisory Board, and the Supervisory Board appoints the members of the Management. From this point of view, one could see the General Meeting as the supreme body of the company. But the Supervisory Board, in the carefully balanced interaction of the three bodies, known as a system of "checks and balances", also has considerable independence from the General Meeting. According to the organizational organization of the Joint stock Companies, the general meeting is not superior towards the two other organs. In particular, the Supervisory Board and its members are not subjects to any instructions from the General Meeting. Neither the election of a member of the Supervisory Board by the General Meeting nor the appointment of a Supervisory Board member by a shareholder (entitled to name his representative) constitutes an imperative mandate for those members. On the other hand, the option of dismissal, which is legally available at all times, as a rule ensures that the Supervisory Board members will not act against the wishes of the General Meeting. Management measures cannot be delegated to the Supervisory Board. However, it must be determined by the Articles of Association or by resolution of the Supervisory Board that certain types of transactions may only be carried out with the approval of the Supervisory Board. By this right, the Supervisory Board will not become an executive body, equal with the Management Board, even in the case of transactions requiring approval: it can neither undertake the transactions in question itself, nor can it instruct the Executive Board to carry them out. The initiative remains with the Executive Board, which, even with the approval of the Supervisory Board, can still refrain from carrying out the business if it no longer considers it to be sensible and/or reasonable. The Management also remains fully responsible for the business with regard to liability; the approval by the Supervisory Board does not exempt them from an obligation to pay compensation for damages incurred. The Supervisory Board thus has the opportunity, by refusing its consent, to prevent the conduct of business intended by the Management Board.

Konsultative Hauptversammlungsbeschlüsse im Aktienrecht aus rechtsvergleichender Sicht

2021 ◽  
Author(s):  
Mehmet Sadik Çapa
Keyword(s):  
Subject Matter ◽  
General Meeting ◽  
General Context ◽  
European Law ◽  
Legal Basis ◽  
Management Board ◽  
Corporation Law ◽  
Legal Nature ◽  
German Stock ◽  
Stock Corporation

In German stock corporation law, non-binding resolutions of the general meeting as one of the participation instruments for shareholders have so far mainly been summarized or analyzed under the heading of management board remuneration. The purpose of this thesis is, however, to analyze these resolutions not only in this context, but in a more independent and general context. The thesis examines the admissibility and legal basis, legal nature, subject matter, adoption, as well as the consequences of non-binding shareholders resolutions. Thereby, various topics are compared with U.S., Swiss, and Turkish law. In addition, European law is also addressed in various aspects.

Höchstrichterliche Rechtsprechung zum Planungsrecht

2018 ◽  
Vol 51 (4) ◽  
pp. 559-590
Author(s):  
Martin Kment
Keyword(s):  
Federal Court ◽  
Constitutional Court ◽  
Planning Law ◽  
Court Of Justice ◽  
Landuse Planning ◽  
Federal Court Of Justice ◽  
Federal Constitutional ◽  
The Law ◽  
German Federal Constitutional Court ◽  
German Federal Constitutional

Abstract In the last five years (2014– 2018) judgements of the German Federal Administrative Court (Bundesverwaltungsgericht) have significantly influenced the German planning law (Baugesetzbuch). This article provides a representative overview of these decisions. It also explains their influence on the German planning law with a particular emphasis on the law of urban landuse planning (Bauleitplanung) and building consents (Baugenehmigung). The article also takes into account some decisions of the German Federal Constitutional Court (Bundesverfassungsgericht) as well as the German Federal Court of Justice (Bundesgerichtshof). Both courts have adjudicated on compensation for expropriation. Furthermore, the German Federal Constitutional Court has given advice on the preservation of deficient plans whereas the German Federal Court of Justice also delivered judgements on urbanistic contracts.

scholarly journals Ustawowy zakaz działalności konkurencyjnej wobec członków zarządu spółek kapitałowych — zagadnienia wybrane

2018 ◽  
Vol 112 ◽  
pp. 153-163
Author(s):  
Marcin Podleś
Keyword(s):  
Board Member ◽  
Supervisory Board ◽  
Competitive Market ◽  
Board Members ◽  
Commercial Activity ◽  
Management Board ◽  
Competitive Activity ◽  
Polish Law ◽  
Competitive Activities ◽  
Made In

PROHIBITION AGAINST COMPETITIVE ACTIVITIES OF BOARD MEMBERSAccording to Polish law paragraph 211 and 380 Commercial Companies Code management board members are among others under a ban to deal with competitive affairs. This ban comprises either acting on his/her own account or within relationships which have been entered into between any member of management board and counter-parties running competitive commercial activity or within his/her own association in partnerships being competitors. Furthermore, a management board member cannot participate in any other business entity as a member of its corporate bodies i.e. hold a post in management board or supervisory board of any competitive market player. Considering the ban on competitive activity function it is proper to speak for a wider character of this ban — i.e. that should extend over each company a said person under ban has held a management board post in. To compensate a rigidity inherent in this ban on competitive activity one has to accept concrete concessions hereof which have been corporately made in an implicit way. It is the management board member himself/herself who has to prove the fact he had been released from this ban and also a scope of concession from it. Additionally, one has to speak against an interpretation of paragraphs 211 and 380 Polish Companies Code in wider extensive sense. One is however to opt for the intact companies’ right to regulate this issue on their own — by virtue of their internal agreements with their management board members.

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