The term of concerted practices is regulated by the provisions of § 66b of the Commercial Code. Acting in concert is acting of independent persons made in mutual understanding to acquire, assign or exercise voting rights on particular person for the purpose of enforcing a common influence on its management, running a business, occupation statutory or supervisory body or else influence the behaviour of such a person. Those who act in concert are obliged to fulfil the obligations arising therefrom jointly and severally.
Concerted practices must be active, it may not be concluded a special agreement and must follow the legally relevant target. Not every action is automatically acting in concert.
Acting in concert is thus a deliberate alignment that may not be permanent. The law does not define exactly acting in concert, but establishes a rebuttable presumption.
- persons who have a relationship with the company, i.e. legal person and its statutory authority, persons in their direct control scope, a member of the supervisory board, liquidator, bankruptcy, arrangement or forced administrator
- controlling and controlled entities
- persons controlled by the same person
- entities constituting the Group
- Ltd. and its partners, public trade company and its partners, limited partnership and general partners. These partners act as persons in concert
- relatives - as Civil Code defines in § 116
- investment company and its investment fund or pension fund
The burden of proof that the persons mentioned above are not acting in concert carries any person who testifies presumption.
Concerted practices have, according to the Commercial Code, inter alia, the following legal consequences:
- constitutes control of the company, if the persons acting in concert have votes enough to promote decisive influence over the management and operation of the enterprise,
- excludes the right to claim damages for non-payment of the harm that was caused by the implementation of the instruction of the controlling entity if all shareholders were acting in concert,
- excludes the exercise of voting rights at the AGM in cases provided by law (when deciding whether to him or another person acting in concert to be excused duty or whether he or person acting in concert to be removed from office for the infringement) unless all shareholders are acting in concert,
- constitutes an obligation to make a takeover bid for control of the company with registered participating securities except for exceptions set by law
- constitutes reporting duty of voting rights