Anke BauermeisterPflichtenkreis und Handlungsspielraum des Vorstands der börsennotierten Aktiengesellschaft in der Übernahmesituation

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This paper analyzes the scope of action of the management board of German stock listed corporations in specific situations which are characterized by extremity and singularity. Exemplarily the role of the management board in case of a hostile takeover due to a public offer according to the Securities Acquisition and Takeover Act (WpÜG) will be viewed as well as the case Volkswagen and the German Financial Markets Stabilization Act legislation. Specific characteristics for the both last-mentioned examples are that the ‘Government’ or governmental subsidiaries will be the old or the new shareholder; hence they would be able to exert influence on private companies either on a corporate-law level but also on a legislative way.

Board members of German stock companies got recently more and more into the focus of the general public, mainly due to an increasing number of hostile takeovers. In parallel most notably two legislations have raised particular interest to the broader public, which immediately affected private companies on a corporate-law level: the so-called ‘Volkswagen law’ and the special legislation based on the German Financial Markets Stabilization Act – in each case with substantial impact on the affected companies but also with knock-on effects on other companies.

In addition to the analysis of surrounding conditions and the background of the respective examined constellation the paper will focus on the following key items: (i) to which extend the management board of a stock company has to consider particular interests deriving from the shareholder, (ii) will the relief of the duties change in the context of a hostile takeover due to the Securities Acquisition and Takeover Act (WpÜG) and (iii) whether the participation of a public shareholder will lead to specific characteristics. Finally the entire area of tension due to conflicts of interests and clashes of interests from a management board perspective will be analyzed.

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