Online Participation Permitted

The Higher Regional Court (OLG) of Hamm has addressed the issue of virtual participation by supervisory board members in general meetings. The focus was on the question of whether a provision in the articles of association is permissible under which supervisory board members may participate in a virtual general meeting via video and audio transmission.

The starting position was the annual general meeting of a listed European stock corporation in May 2023. The general meeting resolved, among other things, an amendment to the articles of association authorizing the management board to hold general meetings virtually until June 30, 2025. It was also resolved that members of the supervisory board may participate in such a virtual general meeting via video and audio transmission.

The resolution was adopted by a majority of just over 90%, and the amendment to the articles of association was subsequently entered in the commercial register.

Several shareholders filed motions for annulment and invalidity of the resolution. Among other things, they argued that the provision in the articles of association violated stock corporation law, as members of the supervisory board must, in principle, physically attend the annual general meeting. The Dortmund regional court initially declared the resolution null and void.

However, the Higher Regional Court of Hamm overturned this decision and dismissed the lawsuits. In the court’s view, the resolution was neither null and void nor voidable.

The announcement of the agenda and the proposed resolution were, from the perspective of a reasonable shareholder, sufficiently clear. The wording made it clear that the provision regarding the participation of supervisory board members was intended to apply only if the possibility of virtual general meetings had been introduced beforehand.

The amendment to the articles of association was also permissible on substantive grounds. Pursuant to § 118 (3) sentence 2 AktG, the articles of association may stipulate that supervisory board members may participate in the general meeting via video and audio transmission in certain cases. In the senate’s view, the holding of a virtual general meeting may also constitute such a specific case.

Although the Higher Regional Court of Hamm has granted leave to appeal, this ruling by a higher court nonetheless provides greater certainty for the ongoing annual general meeting season of publicly traded companies. Supervisory board members may therefore continue—provided the articles of association so provide and the annual general meeting takes place virtually—to participate via video and audio transmission without having to be physically present at the meeting venue.