Der Rückzug vom organisierten Kapitalmarkt (Delisting)

[Withdrawal from the Organized Capital Market (Delisting). A simultaneous investigation into investor protection under capital market law in relation to shareholder protection under corporate law based on the interpretation of Section 38 IV German Securities Act (Börsengesetz)]
Voluntary withdrawal from the organized capital market (delisting) is the subject of intense discussion. The discussion is primarily rooted in the Macrotron decision of the German Federal Supreme Court, the importance of which extends far beyond that case. Based on his experience gained in his corporate law practice and his work for an exchange regulatory authority, the author develops approaches for interpreting and solving the dogmatic and practical problems raised by this decision, by already taking into account the German Corporate Integrity and Modernization of Investor Protection Act (Gesetz zur Unternehmensintegrität und Modernisierung des Anfechtungsrechts - UMAG) and the Capital Investor Representative Proceedings Act (Kapitalanleger-Musterverfahrensgesetz - KapMuG). The author thus places delisting in the context of the European competition between the exchanges or between exchange and non-exchange securities markets while giving consideration to current developments in European capital market law and the treatment of delisting in other countries. The core of the article is coping with the juxtaposition of corporate and capital market regulations as well as remedies from an overarching view of exchange, takeover, and corporate law. The author develops a concept for handling this problem, which, beyond delisting, can enrich the understanding of the relationship between corporate and capital market law. The results of this reflection, as well as considerations of constitutional doctrine, thus give cause to critically question the Federal Supreme Court's Macrotron decision.

Kaspar Krolop is an Assistant Professor at the Chair for Commercial and Business Law and Comparative Law at Humboldt University in Berlin.