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[Hueck-] Nipperdey-Dietz Komm., 2d Ed., note 7 to par. 1). If the
Vorstand consists of one person, he alone is the leader of the enterprise; if
the Vorstand consists of several persons, then, in the case of joint
representation [Gesamtvertretung], the several members together, and in the
case of individual representation, each individual member, are to be regarded
as leader of the enterprise (cf. decree of the Reich Minister of Labor of 1
March 1934 — III b No. 2402 — RABL [Reich Labor Gazette], 1934 I, 62;
Mansfeld-Pohl, commentary to the AOG [Arbeitsordnungsgesetz], note 2a to par.
3). According to par. 3, subpar. 2, AOG, it is possible, in the case of several
persons constituting the leader (ship) of an enterprise, for one of the
Vorstand members (e.g., the chairman of the Vorstand) or for another person
participating responsibly in the management of the enterprise (e.g., an
executive employee) to be invested with the representation; this must take
place when not all the Vorstand members are managing the enterprise. The
difficulties resulting from a Vorstand with multiple membership [mehrgliedriger
Vorstand] can thereby be easily removed. Another leader of the enterprise must,
however, be appointed if, according to par. 38, AOG [Arbeitsordnungsgesetz], he
is deprived with full legal effect [rechtskraeftig] by the social Court of
Honor [soziales Ehrengericht] of his qualifications as enterprise leader
[Betriebsfuehrer] (par. 3, subpar. 3, AOG). Only in such a case it could happen
that theoretically, the position of manager of the corporation [Leiter der
Gesellschaft] and the position of leader of the enterprise [Fuehrer des
Betriebs] are separated. The conviction with full legal effect of a Vorstand
member by the social Court of Honor will always constitute an important
reason for the recall of the member concerned and (will) obligate the
Aufsichtsrat, to revoke the appointment as Vorstand member, as provided for in
par. 75, subpar. 3.
The social duty generally imposed on the Vorstand
for the welfare of the enterprise and its workers [Gefolgschaft] is specially
emphasized in a number of individual provisions of the law. The
participation in the profits by the Vorstand and Aufsichtsrat members must be
in appropriate proportion to the voluntary social (welfare) contributions of
the corporation (par. 77, subpar. 3). Thereby the result is obtained that the
workers [Gefolgschaft], who likewise have contributed to the attaining of the
net profits, also will receive their rightful share. In case of a substantial
deterioration in the affairs of the company, the Vorstand members also must
submit to a reduction of their remuneration, in order that the economic and
social balance will be restored. Beyond this, the Vorstand, according to par.
70, subpar. 1, generally is |
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