The company looks back on a rich history. The first German stock exchange law came into force in 1843 by a decision of the Prussian king. More than 150 years later, the AG remains one of the most relevant corporate forms. The special corporate structure enables the AG to collect large amounts of equity capital. Investors, on the other hand, welcome the possibility of purely financial participation in a company without actually having to spend time and entrepreneurial effort. The following article provides an overview of the basics and foundation of a public limited company.

1.1. AG as legal entity and corporation

The public limited company is an independent legal entity. As such, it is itself the holder of rights and obligations. It can also be sued and sued in courts on its own behalf. The AG acts through its bodies: the Executive Board, the Supervisory Board and the Annual General Meeting. Furthermore, as a corporation, the company is largely independent of its shareholders (= shareholders). The share capital of the company is divided into basically freely negotiable shares. Due to this circumstance, changes in shareholder holdings are much more common than changes in shareholders in a GmbH. For the shareholders of an AG, pure financial interests are often in the foreground of their participation. In comparison, shareholders of a GmbH are much more often themselves entrepreneurial.

According to § 3 para. 1 AktG i.V.m. § 6 HGB, the public limited company is regarded as a merchant by virtue of its legal form. Therefore, the special provisions of the Commercial Code for merchants apply to the AG.

1.2. The liability of shareholders

The share company is liable to its creditors for liabilities exclusively with its own assets, § 1 para. 1 p. 2 AktG. Accordingly, the company creditors cannot avail the shareholders for debts of the AG. The principle that shareholders are not liable for company debts becomes only in a few exceptional cases, for example in cases of “intervention liability” and in the case of incorporated joint stock companies within the meaning of §§ 319 ff. AktG, broken. As compensation for the limitation of liability, the share capital of the company serves as a liability fund for the creditors of the AG. In order for the company creditors to be able to rely on this liability umbrella in any case, the share capital is accompanied by strict statutory provisions for raising and maintaining capital. These provisions include, among other things, the prohibition on issuing shares below the lowest amount of expenditure (§ 9 para.). 1 AktG) and the prohibition of deposit guarantees (§ 57 para 1, 2 AktG).

2. The establishment of the Aktiengesellschaft

An AG, like a GmbH, can be founded either by several persons or by a single founding shareholder. The establishment of a public limited company takes place in several steps. The process is at least partially comparable to the establishment of a GmbH.

The Statute is defined by the Stock Corporation Act as the conclusion of the Articles of Association. The articles of association (or the “statutes”) are only legally effective insofar as they have been certified by a notary, § 23 para. 1 S. 1 AktG. Furthermore, the law imposes certain content requirements on the statutes. This is how § 23 para. 3 AktG the minimum content that the articles of association of a public limited company must contain. In addition to the company and the registered office of the public limited company, this includes in particular the object of the company. Furthermore, the agreed amount of the share capital of the public limited company (at least EUR 50,000,-, cf. § 7 AktG) and the division of the share capital into shares must also be included in the statutes.

Although the minimum content of the AG Statute is reminiscent of the minimum content of a GmbH social contract (cf. § 3 para). 1 GmbHG) must be noted that the contractual freedom beyond the minimum content is severely restricted in the context of the founding of an AG. According to § 23 para 5 AktG, deviations from the provisions of the AktG are only permitted insofar as the law expressly recognises them. Similarly, additions to the legally prescribed content are only legally effective if the AktG does not finally regulate the relevant facts. Due to this deliberate restriction of the contractual freedom of the founding shareholders, a far-reaching standardization of the share is made possible. This should lead to a saving of information and transaction costs and enable optimal trading of shares. However, this makes the stock corporation noticeably more inflexible than the GmbH.

2.2. The takeover of the shares, § 23 Abs. 2 AktG

In addition to the minimum content stipulated by law, the articles of association of a public limited company must also contain the acceptance of the issued shares. The acquisition of the shares takes place through the acquisition declaration of the founding shareholders. The takeover declaration must be included in the notarized statutes. In accordance with the name, the founders undertake by the takeover declaration to take over the shares and the performance of the agreed deposits. Just as for the statutes themselves, the law also sets a minimum content for the takeover declaration. Therefore, the takeover declaration must necessarily contain the founders and information on the shares taken over, in particular the type of share (nominal or unit share) and the issue amount. In addition, the total amount already paid up on the agreed share capital should also be mentioned.

Before the stock company can be registered for registration in the commercial register, according to § 36 Abs. 2 AktG the amount requested by the AG on each share must be duly paid. In the case of a cash foundation, at least one quarter of the smallest amount of expenditure within the meaning of § 9 Abs is mandatory by law. 1 AktG by the AG, § 36a para. 1 AktG. However, if shares have been issued above the lowest amount spent (so-called “Agio”), the excess amount must be claimed in full.

2.3. The possibility of deposits in kind

As in the context of a GmbH founding, the issued shares can in principle also be taken over against a contribution in kind instead of against the payment of cash. For this purpose, the subject-matter of the contribution in kind and the person of the depositor must be determined in a sufficiently specific manner. Furthermore, the nominal amount or the number of shares taken over by the contribution in kind must be stated, § 27 AktG. With regard to the registration authorization according to § 36 AktG, it applies that the registration for registration in the commercial register may only take place after the contributions in kind have been provided in full, § 36a para 2 p. 1 AktG.

Final Steps

After the start-up examination (cf. § 33 AktG), the joint stock company is to be registered in the commercial register, § 36 AktG. All members of the Executive Board and the Supervisory Board are responsible for the registration. If the registry court does not raise any objections, the joint stock company is entered in the commercial register and thus legally effective against legal transactions.