First directive is about representation of the company. It is up to the national system, but
uslaly its the board of directors. Ultra vires rule. MS may provide compan
Powers board of directors:
- day to day management
- representation of the company (art. 10 of the first directive) european) and national
law
Article 10 first directive:
1. ultra vires: acts oustide o fthe object of the company
2. limits on the power of the organs -> no external effect, even if they have been
disclosed
3. allow limits -> only a single person is able to represent OR several persons are only
jointly able to represent
Internal effect, if you go above the limitation, you could be fired. Another internal effect is that
the company can hold someone liable.
Germany (you can find the rules on p. 315, limited liability company act)
There is a distinction between private and public companies with regards to the
representation.
GmbHG/private company
Main rule is in par. 35 (1): managing directors represent the company.
35 (2) joint representation, unless otherwise determined in articles of association. This one is
in accordance with article 10 (3) of the first directive.
37 (2): restriction of competence does not have legal effect against third parties.
AG/public company
Main rule is par 78 (1): management board represents
78 (2): joint representatio, unless stated otherwise in articles of association
78 (3): articles of association may determine that single members of the board alone or
together with a registered officer may represent the company. In accordance with 10 (3)
82 (1) in accordance with article 10 (2): power to represent cannot be restricted. This is the
same as that it has no external effect.
France (p. 269)
Sarl (private company)
Art. L223-18(3): the manager is invested with the most extensive powers to act in the name
of the company, unless the powers ar expressly attributed by the law to the members
Art. L223-18(5): provisions in the articles of associaton restricting the power of managers are
inapplicable toward third parties. So the third paragraph of art 10 is not represented.
Art. L223-18(6): in case of plurality of managers they exercise power separately.
Public company (distinction one and two tier board)
One tier:
art. 225-56 I (1)(2): general manager acts in name of company and represents the company
art. 225-56 I (3) limitations of powers of th egeneral managers do not have extteral effect.
Provision in AoA and decisions of board of directors limiting powers of the general managers
are inapplicable toward third parties.
uslaly its the board of directors. Ultra vires rule. MS may provide compan
Powers board of directors:
- day to day management
- representation of the company (art. 10 of the first directive) european) and national
law
Article 10 first directive:
1. ultra vires: acts oustide o fthe object of the company
2. limits on the power of the organs -> no external effect, even if they have been
disclosed
3. allow limits -> only a single person is able to represent OR several persons are only
jointly able to represent
Internal effect, if you go above the limitation, you could be fired. Another internal effect is that
the company can hold someone liable.
Germany (you can find the rules on p. 315, limited liability company act)
There is a distinction between private and public companies with regards to the
representation.
GmbHG/private company
Main rule is in par. 35 (1): managing directors represent the company.
35 (2) joint representation, unless otherwise determined in articles of association. This one is
in accordance with article 10 (3) of the first directive.
37 (2): restriction of competence does not have legal effect against third parties.
AG/public company
Main rule is par 78 (1): management board represents
78 (2): joint representatio, unless stated otherwise in articles of association
78 (3): articles of association may determine that single members of the board alone or
together with a registered officer may represent the company. In accordance with 10 (3)
82 (1) in accordance with article 10 (2): power to represent cannot be restricted. This is the
same as that it has no external effect.
France (p. 269)
Sarl (private company)
Art. L223-18(3): the manager is invested with the most extensive powers to act in the name
of the company, unless the powers ar expressly attributed by the law to the members
Art. L223-18(5): provisions in the articles of associaton restricting the power of managers are
inapplicable toward third parties. So the third paragraph of art 10 is not represented.
Art. L223-18(6): in case of plurality of managers they exercise power separately.
Public company (distinction one and two tier board)
One tier:
art. 225-56 I (1)(2): general manager acts in name of company and represents the company
art. 225-56 I (3) limitations of powers of th egeneral managers do not have extteral effect.
Provision in AoA and decisions of board of directors limiting powers of the general managers
are inapplicable toward third parties.
