1.2  Key Aspects of German Business Law	23

movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.”

Apart from EU legislation, the principal legal tools to achieve this goal are the so-called ‘Fundamental Freedoms’: the free movement of workers (Art. 45 et seq. TFEU), the free movement of goods (Art. 28 et seq. TFEU), the freedom of establishment (Art. 49 et seq. TFEU), the freedom to provide services (Art. 56 et seq. TFEU) and the free movement of capital (Art. 63 et seq. TFEU).

As business transactions increasingly have a multi-national dimension, the Fundamental Freedoms (as interpreted by the ECJ) have become important safeguards for EU foreign investors doing business in Germany. While a comprehensive analysis of the EU Freedoms and their implications for business transactions in Europe is beyond the scope of this book, we will provide further detail on some of the most important aspects regarding the Freedom of Establishment later-on.

1.2.3  (Re-)current Issues in Corporate Law

When discussing the key aspects of German business law, one should also outline some recurrent features characteristic for Germany’s legal system. Generally, while dealing with German corporate law, we will look at the classic interest groups involved in most corporate law issues, i.e., the shareholders of a company, its managers, employees and creditors.

For example, in contrast to the common law systems in which great emphasis is placed on shareholders’ interests in a corporation, in Germany one should more correctly refer to ‘stakeholder interests’since this broader term would include other interest groups also having interests (or ‘stakes’) in a corporation, in particular employees. The specific German rules on the co-determination of employees prescribe that all German companies with a workforce exceeding a certain number of employees must provide for the participation of employees’representatives in the company’s supervisory board.28 In this way, employees and their representatives have a certain amount of influence on these companies since the management board is, to some degree, accountable to the supervisory board (a number of its members being employees’representatives).Although other jurisdictions in the EU also provide for employees’co-determination, the German system is unique. The recurrent issues in German corporate law, therefore, not surprisingly, include the ongoing debate on the scope and limits of employees’participation, as well as the debate on the scope and limits of shareholders’rights and managers’duties and liability. It also includes the controversial discussion on the need of a statutory minimum share capital as a means for the protection of creditors. Although far from being a new topic, mandatory capital requirements have become a controversial subject in the legislative proceedings for the European Private Company (SPE) as well.29

28  See infra, Sect. 2.5.3. 29  See infra, Sect. 5.3.