The amendment introduces a register of excluded persons. Who will not get a position in the company?
As of 1 July 2023, an amendment to the Business Corporations Act (ZOK) will come into force, which will facilitate the establishment of companies. In particular, the conditions for members of elected bodies of companies will change. See how.
The state has launched a new register
The registration of excluded persons is a fundamental change. This is a new non-public register in which courts or notaries will find persons who cannot serve as a member of an elected body of a corporation. Thus, they can easily check prospective managing directors of a limited liability company and members of the board of directors or supervisory board of a joint stock company before entering them in the commercial register.
Reasons for registration include:
- prohibition of activity,
- declared bankruptcy (insolvency with separation/reorganisation is no longer an issue),
- exclusion from the office of a member of the statutory body by a court decision,
- conviction for a criminal offence that makes it impossible to perform this function.
Information on the specific reasons for the obstacle to the performance of the function, its extent and duration will also appear in the register.
In the future, it is planned to link the register with business registers across the EU. This will make doing business across Europe easier, as companies will not have to produce the same documents over and over again. Instead, public authorities in all Member States will find the necessary data in a central register.
Integrity has been given a concrete form
Until now, one of the criteria for holding an elected office in a company has been integrity, which is also one of the conditions for obtaining a trade licence. According to the definition in Section 6 of the Trade Licensing Act, a citizen who has been convicted of a deliberate crime related to business is not blameless.
The amendment to the ZOK now specifies the conditions for members of elected bodies. The law no longer deals with integrity - instead it introduces new rules.
Obstacles to holding office have been added to §46 of the ZOK (see grounds for registration), as well as a specific list of criminal offences that will prevent a person from holding office in the future. These offences include, for example:
- laundering of the proceeds of crime (money laundering).
We will add that existing members of elected bodies of commercial corporations who do not meet the new criteria will lose their office by law as of 1 October 2023.
Tip! For an overview of the requirements for members of statutory bodies of companies, see the posts on the managing director of an LLC, the board of directors and the supervisory board.