(1) Stockholders, whose shares of stock, in the aggregate, are at least equivalent to one hundredth of the capital stock or to a stake in same of 100,000 euros, at the point in time at which the petition is filed, may file a petition for leave to assert, in their own name, the company’s claims to compensation set out in section 147 (1) sentence 1. The court will permit such an action to be brought if:
1. the stockholders provide proof that they have purchased the shares of stock prior to the point in time at which they or, in the case of universal succession, their predecessors in title had reason to become aware, due to a publication, of the alleged derelictions of duties or the alleged damage;
2. the stockholders provide proof that they have called on the company to itself bring an action, setting a reasonable time limit, but that this was to no avail;
3. facts exist justifying the suspicion that the company may have suffered damage by dishonest conduct or gross violations of the law or the by-laws; and
4. no overriding grounds in terms of the company’s best interests conflict with the assertion of the claim to compensation.
(2) That regional court in the judicial district of which the company has its seat decides on the petition for leave to bring an action by handing down a court order. Where a division for commercial matters has been formed at the regional court, this will take the decision instead of the civil division. Where this serves to ensure uniform adjudication, the Land government may transfer the decision, by a statutory instrument for the judicial districts of several regional courts, to one of the regional courts. The Land government may transfer the authorisation to the Land department of justice. The filing of the petition suspends the period of prescription applying to the claim that is the subject of the dispute until the petition has been dismissed and this dismissal has become final and binding or until the time limit set for bringing the action has expired. Prior to its decision, the court is to give the respondent the opportunity to state its position. The immediate complaint can be lodged against the decision. Filing a complaint on points of law is precluded. The company is to be summoned to attend the proceedings concerning leave to bring an action, and the proceedings concerning the action itself, as an interested third party whose rights may be affected.
(3) The company is entitled to itself assert the claim to compensation before the courts at any point in time; upon the company bringing the action, any pending proceedings concerning leave to bring an action, or any pending proceedings concerning the action itself, that are pursued by stockholders regarding this claim to compensation will become inadmissible. The company is entitled, at its election, to accede to pending proceedings of the action concerning its claim to compensation in the status which the proceedings have reached at the time the company accedes to them. In the cases governed by sentences 1 and 2, the current petitioners or plaintiffs will be summoned to the proceedings as an interested third party whose rights may be affected.
(4) Where the court has found for the petitioner, the action may only be brought before the court having jurisdiction pursuant to subsection (2) within three months of the decision having become final and binding and provided the stockholders have once again called on the company to itself bring an action, setting a reasonable time limit, but to no avail. The action is to be brought against the persons named in section 147 (1) sentence 1, demanding that performance be provided to the company. An intervention by the stockholders as joint parties no longer will be possible once leave has been granted to bring the action. Several actions are to be consolidated such that their hearings for oral argument and the decisions taken by the court coincide.
(5) The judgment takes effect, even in those cases in which it dismisses the complaint, for and against the company and the remaining stockholders. This applies accordingly to any compromise of which notice is to be given by publication in accordance with section 149; however, it will take effect for and against the company only after leave has been granted to bring an action.
(6) Insofar as the petition brought by the petitioner is dismissed, the petitioner is to bear the costs of the proceedings for leave to bring an action. If the dismissal is based on grounds contravening the action that concern the company’s best interests and that the company could have provided prior to the petition being filed, but failed to so provide, then the company is to reimburse the petitioner for the costs. In all other cases, the final judgment is to allocate the costs. Where the company itself brings an action, or where it accedes to pending proceedings of an action brought by stockholders, it is to bear any costs the petitioner may have incurred up until the point in time at which the company brought the action or acceded to the proceedings; the company may withdraw the action only subject to the pre-requisites set out in section 93 (4) sentences 3 and 4, to the exception of the blocking period. Where the action is dismissed, as a whole or in part, the company is to reimburse the plaintiffs for the costs they are to bear, unless the plaintiffs have obtained leave to bring an action by intentionally or grossly negligently making inaccurate submissions to the court. Stockholders acting jointly as petitioners or as joined parties will be reimbursed overall only for the costs of one authorised representative, unless involving a further authorised representative was indispensable for bringing the action.