iNSiGht - Intro

insight corporate Governance Germany POLitiCs
ANALYSIS
Bearer and registered shares in the light of
the 2012 company-law amendment
The government’s draft company-law amendment
was adopted by the Federal Cabinet on 20 December
2011. Whereas previous reforms (UMAG, ARUG,
VorstAG and BilMoG) made fundamental changes, the
2012 company-law amendment develops company law
only selectively. The government’s draft differs some-
Reinhard Eyring, Dr. Philip Cavaillès*
times considerably from the ministerial draft of 2 November
2010, particularly on whether unlisted companies
should be limited to the issuance of registered
shares. The following are the significant changes on
bearer and registered shares in the government bill.
Changes made by the 2012 Company Law Amendment
The company-law provision relating to the securitization
of membership rights, §10 AktG, will be revised by
the company-law amendment. A company’s previous
option to issue either registered or bearer shares will
be eliminated. The ministerial draft stipulated that unlisted
companies could issue only registered shares. This
scheme was weakened due to considerable criticism
from academics, professionals and associations, and
the option right (partially) preserved.
An option right is to continue, even if the registered
share is to be the ordinary case, §10(1), first sentence,
AktG-E. Bearer shares can according to §10(1), second
sentence No. 1, AktG-E only be issued by listed companies,
or, in accordance with No. 2, if entitlement to
individual certification is barred and a Global Note is
deposited with a securities depositary or a comparable
foreign custodian. A company is listed if its shares are
traded on a regulated market (§3(2) AktG). The unofficial
market is not a regulated market. The new arrangement
allows access to the free trading of bearer shares,
if the claim to individual certification is barred and a
global certificate is deposited.
The aim of the change
The aim of the new rules is to create a more transparent
shareholder structure in unlisted companies. The Financial
Action Task Force, an intergovernmental organization
for measures against money laundering, which
was created on the basis of an initiative by the leaders
of the G7 countries, criticized that the lack of transparency
would facilitate such crimes as money laundering
and terrorism financing. The reporting thresholds of
§§ 20, 21 AktG (disclosure above 25 percent of shares
held) were not considered sufficient. The draft assumes
that in suspicious cases investigators can through the
collective securities deposit retrieve timely information
and through the custody chain determine the identity
of the shareholder.
Opinion
Basically, the option right and freedom of design are
welcome. The mandatory collective deposit should facilitate
the establishment of the identity of shareholders
of questionable companies. To ensure protection even in
the period between establishment and deposit, §10(1),
second sentence No. 2 and third sentence, AktG-E provide
that §67 AktG is applicable mutatis mutandis. Until
the deposit of the global certificate, holders of bearer
shares are to be registered in the share register.
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issue 02/2012 11