Secretary: Legal Definition and Classification
Definition and Origins
The term Secretary (German: Sekretär or Sekretärin) is used in the international legal context, especially in Anglo-Saxon jurisdictions, with various meanings. The designation ranges from general administrative staff (e.g., administrative staff, assistants) to high-ranking positions in public and private organizations, such as the ‘Company Secretary’ in corporate law or the ‘Secretary of State’ at government level. In Germany, the term is mainly understood as a functional designation for administrative and organizational tasks, whereas in Anglo-American legal systems, extended and sometimes legally binding roles exist.
Secretary in Corporate Law
Company Secretary
In many common law countries, the role of the Company Secretary (Company Secretary) is clearly regulated by statutory provisions. The Company Secretary assumes a central role in the company, which goes far beyond administrative duties and includes legally defined responsibilities.
Duties and Tasks
Der Company Secretary is responsible for ensuring legal and regulatory compliance within the company. Typical tasks include:
- Convening and recording minutes of board meetings and general assemblies
- Ensuring compliance with corporate governance requirements (e.g., notification obligations, register filings)
- Maintaining proper corporate management
- Administration of corporate documents and registers
Depending on national legislation, non-compliance with these duties may result in civil and criminal consequences.
Legal Status
The legal status of a Company Secretary is often regulated by law, for example in the Companies Act 2006 in the United Kingdom. Here, the appointment and removal is the responsibility of the Board of Directors. The Secretary may have authority to sign and, under certain circumstances, may be held liable for breaches of duty.
Appointment and Qualifications
In some countries, appointing a Company Secretary is mandatory for certain types of companies (e.g., Public Limited Company). The suitability criteria are detailed by laws or by-laws, and non-compliance with the appointment requirement may be subject to sanctions.
Secretary in German Companies
In Germany, there is no statutory equivalent to the Company Secretary. Activities that fall under a Secretary’s responsibilities in Anglo-American practice are typically assigned to managing directors, authorized officers, or administrative staff. Nevertheless, a company may assign specific tasks to a person designated as ‘Sekretär(in)’ or ‘Secretary’ via its by-laws or by resolution. However, such an appointment does not confer any independent statutory authority.
Secretary in Public Law
Government Secretary and Secretary of State
At government level, the term Secretary can denote various offices. In the United Kingdom and the United States, for example, the ‘Secretary of State’ is a minister with a specific portfolio. The legal status, appointment, and powers of these officeholders are detailed in state law and relevant statutes (e.g., US Code, ministerial laws).
Legal Foundations
The appointment, term of office, function, and removal of Secretaries in the state context are regularly governed by constitutions or specific statutory provisions. They have wide-ranging decision-making powers and are subject to special official duties and to oversight mechanisms by the executive or legislature.
Secretary in Employment Law
Employment contract regulations
Employees with the job title ‘Sekretär’ or ‘Sekretärin’ are subject to the provisions of their respective national employment law. These include:
- Conclusion of an employment contract with defined areas of responsibility
- Regulations on working hours, remuneration, and notice periods
- Rights and duties in relation to the employer, such as confidentiality obligations
Confidentiality and Data Protection
Secretaries are regularly entrusted with confidential data and information. Compliance with confidentiality and data protection requirements is legally binding and breaches may have civil and, if applicable, criminal consequences.
Secretary in International Law
International Organizations
In the context of international organizations, such as the United Nations, positions titled “Secretary-General” or “Secretary” exist. These roles are structured by international law and the statutes of the respective organization and come with specific rights and duties. The Secretary-General of the United Nations, for example, has functions defined in the UN Charter, including enforcing the rules of procedure and representing the organization to states and bodies.
Liability Regulations and Sanctions
Civil and Criminal Liability
Individuals in the position of Company Secretary are subject to a special form of liability in the event of breaches of duty. This may involve obligations to pay damages to the company as well as criminal sanctions for violations, for example of reporting duties or compliance regulations.
Recourse Options
In cases of gross negligence or intent, companies may seek recourse for damages incurred, provided a breach of duty can be proven. Third parties, such as shareholders or creditors, may also claim compensation under certain conditions.
Summary
The position of Secretary is associated in many legal systems with specific and often statutory duties, powers, and liability risks. Especially in corporate law and international organizational law, it carries decisive structural and legal importance. The exact structure and legal classification depend on the respective national or international legal system and relevant regulations, giving the Secretary a multifaceted and legally significant key role in businesses and institutions.
Frequently Asked Questions
What legal requirements must a person meet to serve as a Secretary?
For the position of Secretary—especially in a corporate context, for example as a company secretary in a corporation—there are various legal prerequisites depending on the company structure and national law. In many jurisdictions, for example under German commercial law (HGB, GmbHG, AktG), the function in the strict sense is not regulated by law, meaning there is no formal qualification requirement (such as a specific vocational qualification or certification). However, a company’s articles of association may set additional requirements, such as independence, neutrality, or specific knowledge of corporate law. Moreover, in certain sectors (for example, financial services), special requirements may result from regulatory provisions, such as proven reliability (certificate of good conduct) or evidence of professional competence. For the role of “Secretary of the Board,” compliance with confidentiality regulations, data protection per GDPR, and, where applicable, whistleblower protection must be considered. Depending on the type of company, registration with the commercial register or notification to supervisory authorities may be necessary. Breaches of legal requirements or due diligence may also give rise to personal liability.
What legal duties does a Secretary owe to the company?
A Secretary has comprehensive legal duties to the company, especially regarding the proper management and documentation of corporate processes. Key obligations include the correct calling and documentation of general meetings, shareholder meetings, or board meetings, as well as keeping and retaining the minutes in accordance with legal requirements (§ 130 AktG, § 51 GmbHG). Furthermore, the Secretary must initiate necessary notifications to registration courts, such as address or managing director changes. Deadlines for registration of company data with the commercial register, association register, and transparency register must be met, and compliance with legal formalities for resolutions must be monitored. The Secretary is also obliged to observe internal corporate rules, such as articles of association or bylaws, and to report violations to the appropriate bodies. Confidential handling of sensitive data is subject to strict data protection requirements.
What is the legal framework of liability for a Secretary?
The liability of a Secretary is established particularly in tort and company law. A Secretary bears a particular duty of care and may be liable for damages to the company or third parties caused by breaches of duty, whether through gross negligence or intent (§ 823 BGB, and possibly § 43 GmbHG or § 93 AktG for board-related proximity). Specifically, breaches of statutory reporting obligations, missed deadlines, or incorrect recording of business-relevant resolutions can lead to compensation claims. Additionally, there may be criminal liability for instances such as document forgery, bribery, or data protection violations (under StGB, GDPR). Liability can be mitigated through a so-called D&O (Directors and Officers) insurance policy if one exists and explicitly covers the Secretary.
Is the Secretary subject to a special duty of confidentiality?
Yes, the Secretary is generally subject to a special legal and contractual duty of confidentiality. This arises on the one hand from employment or service contract duties pursuant to § 241 (2) BGB, but may also be explicitly established by partnership agreements, articles of association, or bylaws. The confidentiality requirement is particularly strict regarding information classified as trade or business secrets (§ 17 UWG, § 201 StGB). For listed companies, the Securities Trading Act (WpHG) also applies with respect to insider information. Breaches of these confidentiality duties can lead to civil claims (damages, injunctive relief), employment actions (warning, dismissal), and criminal consequences.
What statutory provisions apply to the recording of meetings by the Secretary?
There are various statutory requirements for recording meetings such as board meetings, shareholder meetings, or general assemblies. Under German law, for stock corporations (§ 130 AktG) and GmbHs (§ 51 GmbHG), essential minimum requirements for minute-keeping are stipulated. These include the full reproduction of the agenda items, listing of participants by name, precise documentation of adopted resolutions, and signatures of the minute-taker (often the Secretary) and, if applicable, the meeting chairperson. Minutes serve as documents within the meaning of § 261 ZPO and must always be traceable, tamper-proof, and kept in accordance with retention obligations (generally 10 years, § 257 HGB). Deficiencies in recording may render resolutions contestable or void.
What are the specific employment law considerations for Secretaries?
In an employment relationship, Secretaries are subject to general employment protection laws, such as the Protection Against Dismissal Act (KSchG), Working Hours Act (ArbZG), Federal Data Protection Act (BDSG), and any applicable collective agreements. Of particular relevance are flexitime arrangements, regular availability, and continuing education requirements (especially in the area of compliance). In case of suspected breaches of duty, specific rights of hearing and participation apply to the works council (if available) under the Works Constitution Act (BetrVG). If the role is considered one of special trust with a high level of confidentiality, the company may agree on supplementary contractual provisions, which must be in compliance with the law.
Can Secretary’s tasks be delegated, and what legal restrictions apply?
Delegation of Secretary duties is generally possible unless statutory provisions or the company’s constitution dictate otherwise. However, in the event of delegation, the Secretary retains a supervisory and monitoring duty with respect to proper execution. Responsibility generally remains with the Secretary, especially for statutory tasks (e.g., minute-taking, register notifications). Errors by third parties engaged can be attributed to the Secretary if sufficient care in selection and supervision cannot be demonstrated. In individual cases, a personal appointment in the articles of association may be stipulated, in which case delegation is only permissible following the corresponding amendment to the articles.
