Concern (business)
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A concern (german: Konzern) is a type of business group common in Europe, particularly in
Germany Germany,, officially the Federal Republic of Germany, is a country in Central Europe. It is the second most populous country in Europe after Russia, and the most populous member state of the European Union. Germany is situated betwe ...
. It results from the merger of several legally independent companies into a single economic entity under unified management. A concern consists of a controlling enterprise and one or more controlled enterprises.Stock Corporation Act 1965 (Germany), section 17 The relationship between the controlling and controlled enterprises is based on the actual commercial and management relationships, unlike parent and
subsidiary A subsidiary, subsidiary company or daughter company is a company owned or controlled by another company, which is called the parent company or holding company. Two or more subsidiaries that either belong to the same parent company or having a ...
companies which are related by share ownership and voting rights.Stock Corporation Act 1965 (Germany), section 16 Outside of professionals, the term ''Group'', also mistakenly ''within the meaning of large companies'' – regardless of its corporate structure – is understood. The Group concept is one of
antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrus ...
relevance: the so-called Group privilege, the privilege of the consolidated Group companies involved, means that in itself,
prohibition Prohibition is the act or practice of forbidding something by law; more particularly the term refers to the banning of the manufacture, storage (whether in barrels or in bottles), transportation, sale, possession, and consumption of alcohol ...
included practices do not violate German or
European Commission The European Commission (EC) is the executive of the European Union (EU). It operates as a cabinet government, with 27 members of the Commission (informally known as "Commissioners") headed by a President. It includes an administrative bod ...
(EC) antitrust law. On the other hand, the Group concept in Banking Act is the formation of borrower unit and particularly of the large credit limits of paramount importance.


Types

The 1965 ''Aktiengesetz'', literally "stock law", but commonly known in English as the German Stock Corporation Act, defines a concern as: "one dominant and one or more dependent companies, together under the unified leadership of the ruling company".Stock Corporation Act 1965 (Germany), section 18 The ''Aktiengesetz'' applies only to any '' Aktiengesellschaften'' (AG; literally "stock company"; singular ''Aktiengesellschaft''), which are analogous to public companies in the English-speaking world. An ''Aktiengesellschaft'' differs from a '' Gesellschaft mit beschränkter Haftung'' (GmbH), which is analogous to
limited liability Limited liability is a legal status in which a person's financial liability is limited to a fixed sum, most commonly the value of a person's investment in a corporation, company or partnership. If a company that provides limited liability to it ...
companies in other countries. A GmbH is regulated under the ''Gesetz betreffend die Gesellschaften mit beschränkter Haftung'' of 1892 (GmbH-Gesetz; literally "law concerning companies with limited liability"). Three different kinds of concern are identified under ''Aktiengesetz'': the contractual concern, the factual concern, and the flat concern.


Contractual

In this form of concern, the controlling enterprise and controlled enterprise enter into a control agreement – wherein the controlling enterprise can obtain management powers over the controlled enterprise, sometimes amounting to complete control – and/or a profit transfer agreement.Stock Corporation Act 1965 (Germany), section 291 These powers may be used in a way that is detrimental to the subsidiary, provided that they are in the interests of the concern and do not damage the legal separateness of the subsidiary. In return, the controlling enterprise is liable to compensate the controlled enterprise for all deficits of the controlled enterprise during the term of the agreement.


Factual

In this form of concern, the controlling enterprise exerts a controlling influence on the controlled enterprise, but there is no formal control or profit transfer agreement. If one company owns a majority in another company, then the first company is deemed to exert a controlling influence. The parent company is then liable for any damage which results from the interference of the parent company in the subsidiary, which is judged on a case-by-case basis. This kind of concern is more difficult to establish and so is more common.


Flat

In this version, there is no parent company, instead a number of legally separate companies are subject to common direction.


Other forms

To apply the law of concern to concerns involving German limited liability companies, the German courts have created the qualified de facto concern, beginning in the 1970s. This form of concern applies only in parent subsidiary relationships. If the parent is shown to have a long-standing and pervasive control over the affairs of the subsidiary, then there is a presumption that the parent was not acting in the best interests of the subsidiary. If the parent is unable to displace this presumption, then the parent is liable for all the obligations of the subsidiary. This type of concern was limited by the German Federal Supreme Court in 2002 to only apply where the control is such that the subsidiary will inevitably collapse or become insolvent, on the basis that the parent has abused the separate legal personality of the subsidiary.


Conglomerate

''(inorganic groups)'' A conglomerate consists of enterprises from different businesses. Unlike the concern, the companies in a conglomerate have a limited business relationship with each other.


See also

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Consolidated financial statement Consolidated financial statements are the " financial statements of a group in which the assets, liabilities, equity, income, expenses and cash flows of the parent company and its subsidiaries are presented as those of a single economic en ...
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Variable interest entity Variable interest entity (VIE) is a term used by the Financial Accounting Standards Board (FASB) to refer to a legal entity with certain characteristics such that a public company A public company is a company whose ownership is organized v ...


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