Who is allowed to participate in a deposit
(Corporate :) The participation of the shareholder in the general meeting
Shareholders have three options for attending a general meeting and exercising their voting rights:
a) A shareholder can - as often happens - take part in the general meeting himself. To do this, he must deposit his shares with a notary or a domestic bank in good time (Section 107 (2) AktG) and receive a deposit confirmation ("voting card"), which must be presented to the company prior to the general meeting as proof of entitlement to participate in the general meeting. This shareholder is listed by name in the list of participants (with the indication "Ownership").
b) A shareholder is not only entitled to attend a general meeting in person, but also to send a proxy who assumes the shareholder rights for him at the general meeting. The written form is required and sufficient for the power of attorney (Section 114 (3) AktG). The power of attorney should not only refer to the representation in the general meeting, but also expressly to the exercise of voting rights in this. The shareholder registers himself or the proxy to participate in the general meeting; the shareholder himself deposits the share in due time before the general meeting, issues a written power of attorney to the proxy and the proxy then appears at the general meeting with power of attorney (direct representation). The shareholder and the proxy representing him appear in the directory of attendees at the general meeting by name (for the concept of direct representation and the principle of disclosure, see Koziol / Welser I11 177).
c) Stock corporation law also allows the variant that the shareholder who does not want to attend the general meeting himself hands over the share to someone else, who then deposits the share in due time before the general meeting (in his own name) (or at least one from the bank receives a deposit confirmation in his name) and attends the general meeting. This can also be read succinctly:
"If a shareholder does not want to attend the Annual General Meeting himself, he can send a representative with a written power of attorney (Section 114 (3) AktG) or hand over his bearer shares to a third party to exercise his voting rights in his own name, who must, however, state that he has these shares do not belong ("third-party property"); this so-called legitimation shareholder acts as an authorization trustee. " (Kastner / Doralt / Nowotny, corporate law5 270).
The latter thus acts as a shareholder, but honestly states that he is not a material shareholder himself. In this case, only the person appearing is specified as a "shareholder" in the participant directory with a corresponding note that this person is not the owner, but an external owner, because he acts as an "indirect representative" (for the term see Koziol / Welser I11 176-177); the representative acts in his own name as the authorized shareholder. One speaks therefore of the legitimation shareholder (see also Kalss / Wessely, Dierechte des Aktionärs, 8), whose rights and obligations are assessed according to the rules of the authorization trust (see Schiemer / Jabornegg / Strasser Rn 2 to § 110 AktG3; Kastner / Doralt / Nowotny, Corporate Law3 270). This construction is expressly recognized by Section 110 sentence 2 AktG:
"If someone wants to exercise voting rights in his own name for shares that do not belong to him, he has to separately indicate the amount and the class of these shares for inclusion in the list."
When a bank acts as a legitimation shareholder, one speaks of the deposit voting right. To this end, the Supreme Court correctly stated in decision SZ 33/95 that the legitimation shareholder himself (and not the substantively justified but anonymous "full shareholder" behind it) is entitled to an action for annulment directed against resolutions of the general meeting.
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