E-mail is Sufficient to Meet Written Form Requirement in Articles of Association

If the articles of association of a registered association require written invitations to the meeting of members, such invitations may also be issued to members via e-mail.

Background

The register court rejected the application for registration of an amendment to the articles of association of a registered association on the grounds that although the articles of association required written invitations to meetings of members, the association had issued such invitations to its members merely via e-mail. The court found that the meeting of members was therefore not properly called.
The appeal by the registered association was successful. The Higher Regional Court of Hamm (Oberlandesgericht –“OLG”) cancelled the interim order and ordered the register court to reach a new decision with regard to the application for an amendment.

The Ruling of the OLG of Hamm of 24 September 2015, Case Reference: 27 W 104/15

The OLG of Hamm ruled that invitations to members via e-mail are sufficient to meet the requirements of the articles of association. It held that the purpose of the written form requirement is to ensure that the members are notified of the proposed meeting and the agenda, and that this is also the case if the invitation and the agenda for the meeting of members are transmitted via e-mail, even if it does not bear the signature of the members of the management board.

It further held that a written form requirement stipulated in articles of association of a registered association differs considerably from one imposed in the general commercial context. In the latter case, the purpose of such a written form requirement is to ensure legal certainty in the case of certain declarations or statements. For example, in the case of the termination of a contractual relationship, its function is to provide a conclusion, a means of identification, evidence of authenticity and a warning function. In contrast, these functions are less important with regard to an invitation to a meeting of members.

Comment

The procedural and substantive requirements for the effective convening of a meeting of members are not conclusively stipulated in the law of associations. Pursuant to section 58, no. 4 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”) the articles of association of the entity in question apply in a supplementary capacity. The courts have taken the view that, if the articles of association require a “written form”, this will not indicate the more stringent written form requirement imposed by statute, but rather a less stringent, so-called discretionary written form requirement. Pursuant to the decision of the OLG of Hamm, the convening of a meeting of members via e-mail is sufficient to meet the written form requirement, provided that the articles of association do not explicitly require otherwise.

But beware: this case law cannot be applied to corporate law. Pursuant to the statutory provisions, invitations to shareholders’ meetings of a GmbH must be issued by way of registered letter. Non-compliance with this requirement may result in the defeasibility or even nullity of the resolutions adopted at the shareholders’ meeting in question. Should shareholders wish to permit the convening of the shareholders’ meeting via e-mail, they must expressly provide therefore in the articles of association.