Jens Gebke Private Macht im Gesellschaftsrecht und die actio pro socio als Legitimationsfaktor

About this book

„It's easier to grab a soaped-up sow by the tail than to hold a supervisory board liable.“ This legendary sentence, which is attributed to the famous banker Herrmann Josef Abs, is still valid today when it comes to state-owned corporations. Power and its justification are particularly controversial when the state exercises it through state-owned companies. The democratic legitimacy is interrupted and parliamentary control is eliminated. The principal-agent conflict is intensified by the dual mandates of politicians who exercise a shareholder function as representatives of the state, but at the same time act as managers or supervisors in the company. Politicians become judges in their own affairs. The justification and control mechanisms that legitimize this regime of power are therefore already structurally failing. The legitimizing internal liability of the acting agents loses its meaning, although two internal liability systems (constitutional law and corporate law) are available and public funds are involved. Behavior-guiding and power-legitimizing self-concern mechanisms fail in these constellations. A substitute power of the principals is therefore required to fix this legitimation deficit. This is achieved through the public law actio pro socio, which allows parliamentary groups of the owner parliaments to enforce internal claims of the state-owned company through a double actio pro socio (multiple derivative suit).

This enables each parliamentary group to enforce internal liability claims of the state-owned subsidiary against managers or supervisors in litigation for the state-owned subsidiary. This public law actio pro socio can be based on an overall analogy of Sections 148, 309 para. 4 sentence 1, 310 para. 4, 317 para. 4, 318 para. 4, 323 para. 1 sentence 2 German Stock Corporation Act (AktG), 715b German Civil Code (BGB) as well as Sections 136 para. 1 sentence 1 AktG, 47 para. 4 sentence 1 case 1 and sentence 2 case 2 German Limited Liability Companies Act (GmbHG), 43 para. 6 German Cooperative Society Act (GenG), 715 para. 1, 720 para. 4, 727 sentence 1 German Civil Code (BGB), 15 para. 1 sentence 1 and 2 German Banking Act (KWG). If implemented consistently, the quote from Abs can finally become legal history for state-owned companies as well.