Concept and legal classification of the Anonymous Company
Die Anonymous Company is a societally widespread corporate form under company law, which is considered the counterpart to the German stock corporation (AG). Originally developed within the Romance-law jurisdictions, particularly in France (“Société Anonyme,” or SA), the anonymous company is applied in numerous countries across Europe, Latin America, Africa, as well as parts of Asia. It primarily serves the purpose of capital raising by dividing the share capital into shares (stocks) held by shareholders.
The designation “anonymous” refers to the fact that, unlike in partnerships, shareholders ordinarily do not appear by name in company transactions, but can participate anonymously through their shareholdings.
Legal bases and legal nature
National distinctions of the Anonymous Company
The exact structure of the Anonymous Company varies from country to country. A common feature is the separation of ownership (shareholders) and management (governing body):
- France: Société Anonyme (SA) pursuant to Code de commerce, Art. L225-1 et seq.
- Switzerland: Stock corporation (AG), also occasionally referred to as Anonymous Company, regulated in the Swiss Code of Obligations Art. 620 et seq.
- Italy: Società per Azioni (S.p.A.) in the Codice Civile.
- Spain: Sociedad Anónima (S.A.), regulated by the Ley de Sociedades de Capital.
Due to the international understanding of the term, the anonymous company is subject to comparable regulations worldwide, frequently comprising requirements for register entry, a statutory minimum capital, and limited liability participation as core elements.
Position under company law
The Anonymous Company is a legal entity and possesses its own legal personality. The company’s assets are strictly separated from the private assets of the shareholders. This legal form enables independent participation in economic life, allows for entering into contracts, and enables the company to sue and be sued.
Formation and Organization
Formation Requirements
To establish an Anonymous Company, the following requirements generally must be fulfilled:
- Formation agreement (Articles of Association, Statutes): Written form and notarization are generally required.
- Minimum capital: In many countries, a legally prescribed minimum share capital is required (e.g. €37,000 in France, CHF 50,000 in Switzerland).
- Entry in the commercial register: Constitutive effect, the company is only established upon entry into the register.
- Number of shareholders: A minimum number of founders is often required (e.g. seven in France).
Governing bodies of the Anonymous Company
Typically, an Anonymous Company is governed by the following bodies:
- General meeting: Assembly of shareholders which adopts fundamental resolutions (amendments to the articles, election/supervision of the management).
- Board of directors/Management board: Executive body, manages ongoing business and represents the company externally.
- Supervisory board (optional/depending on the country): Supervisory organ, especially for larger or publicly listed companies.
Capital structure and liability
Capital and shares
The share capital is divided into shares which are fungible and, depending on the structure, freely transferable. Shareholders participate in the company capital with their shares and are granted corresponding rights (voting rights, dividends, subscription rights).
Liability regulations
Die Liability of the shareholders is generally limited exclusively to the contribution obligation for their shares. There is no obligation to make additional contributions; private assets are not affected. The company itself is liable for its obligations with its own assets. This division of liability makes the Anonymous Company an attractive form for investments with limited risk.
Rights and obligations of shareholders
The shareholders of an Anonymous Company possess – depending on national law and the company’s bylaws – among others the following rights:
- Participation in the general meeting
- Voting rights depending on number/structure of shares
- Right to dividends and liquidation proceeds
- Subscription right in the event of capital increases
Obligations are generally limited to the payment of subscribed shares. Information and participation duties exist insofar as they are provided for by law or in the statutes.
Disclosure, accounting, and control
Anonymous companies are subject to extensive disclosure and accounting requirements:
- Accounting obligation: Preparation and disclosure of annual financial statements and reports.
- Audit: Obligation to appoint auditors, especially for companies listed on the capital market.
- Registration and publication: Legal and economic changes to be published in the commercial register.
These requirements serve the protection of creditors as well as transparency in commercial transactions.
Special features and distinction from other company forms
In contrast to partnerships, personal involvement or liability of shareholders is not envisaged in the Anonymous Company. This company form is particularly suited for larger businesses seeking to raise capital on the market and achieve broad shareholder diversification. There are conceptual and substantive overlaps with the German stock corporation, the public limited company (plc) under Anglo-American law, and the societas europaea (SE), although differences exist in national implementations.
International significance and economic relevance
The Anonymous Company enjoys high recognition in international business and is the preferred legal form for listed companies, banks, insurance companies, and other capital-intensive enterprises. Its flexibility and opportunities for raising capital, as well as protection from personal liability, enhance this corporate form’s attractiveness in the global market.
Further literature and references
- Code de commerce, France: Articles L225-1 ff.
- Swiss Code of Obligations (OR), Art. 620 et seq.
- Hopt, K.J.: Europäisches Gesellschaftsrecht, 5th ed.
- Ulmer, H.: Gesellschaftsrecht international, 3rd ed.
- Ley de Sociedades de Capital, Spain
Note: The regulations for Anonymous Companies must always be examined in light of the relevant national law, as differences exist regarding formation, organization, and obligations.
Frequently Asked Questions
Which corporate bodies are required by law in an Anonymous Company and how are their areas of competence regulated?
The Anonymous Company (AG) is structured, according to the applicable national corporate law—for example, the Aktiengesetz (AktG) in Germany or the Swiss Code of Obligations (OR)—into specific governing bodies with clearly assigned duties and competencies. The mandatory bodies generally include the general meeting (or shareholders’ meeting), the board of directors (or management board and supervisory board in the dualistic system under German law), and, in certain jurisdictions, the audit body or auditors. The general meeting forms the decision-making body for the shareholders and resolves in particular on amendments to the articles, capital measures, the election and discharge of governing bodies, as well as profit allocation. The board of directors (or management board) is responsible for the management and representation of the company, while the supervisory board—depending on the model—is established to supervise the management. The auditing bodies are responsible for overseeing accounting and financial reporting, with their appointment and structure varying nationally. The allocation of responsibilities among the bodies is generally prescribed by law and is subject to only limited modification by the company’s articles.
When and how does the formation of an Anonymous Company become legally effective?
The legal effectiveness of the formation of an Anonymous Company regularly only occurs upon completion of the full incorporation process. This includes the authentication of the company’s statutes, the execution of a public deed or the notarization of the articles of association (particularly under German, Swiss, and Austrian law), payment of the legally required minimum capital, and the appointment of the governing bodies. The company must then be registered in a legally required commercial or company register (for instance, the commercial register in Germany and Switzerland). Only upon such registration does the company come into existence as a legal entity with its own legal personality and operating capacity. Any actions taken prior to registration create only a so-called “pre-company” with limited liability.
How are shareholders’ rights protected from a legal perspective?
The rights of shareholders in an Anonymous Company are safeguarded by a multitude of statutory provisions. Core rights include participation and voting rights in the general meeting, subscription rights in capital increases, the right to information and inspection, as well as entitlement to dividend or liquidation proceeds. Some of these rights are inalienable and cannot be fully excluded or restricted by the company’s articles. In addition, both judicial and extra-judicial protection mechanisms exist, such as the right to challenge unlawful general meeting resolutions and minority rights, which enable shareholders holding a certain percentage to demand special audits or convene general meetings. Moreover, there are provisions ensuring equal treatment of all shareholders of the same share class.
What reporting and disclosure obligations apply to an Anonymous Company?
An Anonymous Company is subject to comprehensive disclosure requirements. It is obliged to disclose certain information, especially the submission and publication of annual financial statements, management reports, and, if applicable, interim and semi-annual reports in the company register or at the competent stock exchange in the case of public companies. Changes in the management board/board of directors, the articles of association, or the share capital must also be registered and publicly disclosed. These transparency obligations are designed to protect creditors, investors, and shareholders by providing insight into the economic situation and key developments. Violations of these obligations can result in significant legal consequences, including civil and criminal penalties.
How is liability structured within the Anonymous Company from a legal perspective?
Liability in the Anonymous Company is generally limited to the company’s assets, meaning that shareholders are not personally liable for the company’s obligations, but only with their respective contributions. There is usually no obligation for additional capital contributions, provided the statutory and statutory capital has been fully paid in. Members of the board of directors, management board, or supervisory board are personally liable only in cases of gross negligence or intentional breaches of duty. However, in cases of delayed insolvency filing, breach of insolvency application obligations, or tortious acts, board members can be held personally liable. There are also regulations governing liability in the event of unlawful distribution of profits.
Under what conditions may shares (stock) be transferred?
The transferability of shares is a mandatory statutory feature of the Anonymous Company. In principle, any shareholder may transfer their shares at any time and without the company’s approval, unless restrictions are provided in the company’s articles (e.g., restrictions requiring approval for the transfer, known as ‘vinkulation’). Legal transfer in the case of registered shares generally requires endorsement and transfer on the share register; for bearer shares, the physical handover of the share certificate suffices. The legal validity of the transfer generally presupposes compliance with the form and approval requirements set out in the articles and by law.
