The articles of association of registered associations often provide for the general meeting to be convened in writing. The question regularly arises as to whether an invitation by e-mail satisfies this written form requirement if the members have deposited their e-mail address with the association.
The Higher Regional Court of Hamm answered this question in the affirmative in its decision of 24.09.2015 (case no. 27 W 104/15).
In this case, the association involved had registered an amendment to the articles of association adopted by the general meeting with the local court. The local court raised concerns about the validity of the resolution, as the invitation to the general meeting had been sent by email and not – as required by the articles of association – in writing.
The Higher Regional Court of Hamm did not follow this view and agreed with that of the Higher Regional Court of Hamburg (decision of 06.05.2013 – 2 W 35/13).
The Higher Regional Court of Hamburg already stated in this respect:
In contrast to the law governing stock corporations, limited liability companies and cooperatives, the law governing associations does not contain any provisions on the form in which the general meeting must be convened. The written form prescribed in the articles of association is therefore generally to be treated as a so-called arbitrary written form within the meaning of Section 127 BGB and not as a written form prescribed by law – e.g. in Section 51 GmbHG – within the meaning of Section 126 BGB. Pursuant to § 127 para. 1 in conjunction with. § Section 126 para. 3 BGB, the written form stipulated in the Articles of Association can therefore be replaced by electronic form.
In the opinion of the OLG Hamm, the formal purpose of these articles of association – as is regularly the case in such circumstances – is to ensure that the members are informed of the convening of a general meeting and the agenda. This could also be done by sending an invitation by e-mail.
In terms of meaning and purpose, the written form requirement in the articles of association is therefore clearly different from an agreed written form requirement in business life when inviting association members to a general meeting. In general business life, greater legal certainty is sought through the written form requirement, in particular due to the significance of certain declarations (e.g. termination of a contractual relationship). However, many of the functions of the written form are of completely subordinate importance in the invitation to a general meeting. This applies in particular to the conclusion, identification, authenticity or warning function of the written form.
The Higher Regional Court of Hamm considered the procedure to be unobjectionable overall, as no member’s rights had been impaired. In particular, no member of the association had been forced to send the invitation “only” by email. For example, an invitation was only sent by e-mail to those members who had registered their e-mail address with the association. The other members, however, received postal invitations.
Advisor note
The decision of the OLG Hamm is to be welcomed. The explanations regarding the meaning and purpose of the regulation are rather less convincing, as association members also have an interest worthy of protection in receiving the invitation in the manner specified in the articles of association. However, the decision is correct insofar as it “only” consistently applies the statutory provisions of Sections 126 and 127 BGB.
However, it should also be noted in this respect that an invitation by e-mail is no longer sufficient if the articles of association stipulate further requirements for the invitation that go beyond the written form (e.g. by registered letter). In this respect, the Executive Board should continue to take a look at the Articles of Association before convening the General Meeting.
