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Coalition agreement 2021: Planned changes in corporate and company law

The "Dare to make more progress" coalition agreement between the SPD, Bündnis 90/Die Grünen and FDP contains only a few and ultimately expected plans for legislative changes in corporate and company law. An initial overview:

1. Online general meeting

Based on the largely positive practical experience with the virtual general meeting, which was temporarily introduced in times of COVID-19 and assembly bans, the coalition wants to make an online general meeting possible on a permanent basis. The coalition agreement does not provide any details. However, shareholder rights are to be preserved "without restriction," which indicates that shareholders will also have the right to ask questions or at least to make inquiries during the annual general meeting and not (as is currently the case) only in the run-up to the meeting.

2. Digitization of corporate law

The digitization of corporate law is also to be pushed forward in other areas. In the future, notarial certification via video communication will also be possible for incorporations with contributions in kind. The "online formation" of a limited liability company ("GmbH") or an entrepreneurial company (with limited liability - "UG") is already provided for by law from August 1, 2022, but only in the case of a cash formation. In addition, the possibility of "online certification" is also to be opened up for other shareholder resolutions. According to  the current legal situation, this is only provided for resolutions that are closely related to the formation, but not for amendments to the articles of association, capital increases or conversion transactions.

3. Compliance

a) Revision of existing regulations on corporate sanctions

After the previous black-red federal government had set itself the goal of fundamentally revising the law on sanctions for companies, but the controversially discussed "Association Sanctions Act" finally failed shortly before the end of the last legislative period, the incoming government is digging a little deeper:

It merely wants to revise the (existing) regulations on corporate sanctions, including the level of sanctions. Furthermore, the traffic light coalition, similar to the previous black-red coalition, wants to "improve legal certainty for companies with regard to compliance obligations [...] and to create a precise legal framework for internal investigations." The coalition agreement (p. 111) is not more specific at this point. It remains unclear whether there are plans to abandon the principle of opportunity under regulatory law.

b) Implementation of the EU Whistleblower Directive

Unsurprisingly, the "traffic light coalition" wants to implement the EU Whistleblower Directive in a "legally secure and practicable" manner. The previous government's implementation law, like the Association Sanctions Act, failed at the final meters.

A central component of the Whistleblower Directive is the obligation for companies with at least 50 employees to set up an internal anonymous whistleblower system. A report must not have any negative consequences for the employee. According to the coalition agreement, whistleblowers should be protected from legal disadvantages when reporting violations of EU law or significant violations of other regulations, as well as when reporting other misconduct by companies, the disclosure of which is in the particular public interest. In addition, the enforceability of claims against companies for reprisals is to be improved by offering advice and financial support. The directive must already be implemented by December 17, 2021. This deadline is unlikely to be met.

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