A contribution by lawyer Gregor Kübler
Virtual decision-making in foundations
Right at the beginning of the corona pandemic, the legislature took special measures to combat the effects of the pandemic. For this purpose, the law on measures in company, cooperative, association, foundation and residential property law to combat the effects of the COVID-19 pandemic (COVMG) was passed. It is unclear whether the regulation on the admissibility of resolutions by telephone or video conference in associations also applies to meetings of foundation bodies. So far, no court decision has been made on this issue.
The transfer of the regulations for decision-making in association law is doubtful
According to § 5 Para. 2 COVMG, a virtual participation of the club members in the general meeting including the exercise of the membership rights is possible even if the respective club statutes do not contain a corresponding regulation.
A corresponding application of this association law regulation to the decision-making of foundation bodies speaks in principle that according to § 86 sentence 1 BGB selected regulations of association law also apply to foundations. Accordingly, holding a telephone or video conference would have to be permissible even when a resolution is passed by the board of directors or another body of a foundation. However, the unambiguous wording of Section 5 (2) COVMG only refers to the resolution of the members of an association. In addition, the explanatory memorandum does not contain any references to a corresponding applicability of the regulation to foundation bodies.
Uncertain legal situation for foundations
If a foundation statute does not contain any explicit regulations on the admissibility of resolutions by the foundation bodies by telephone or video conference, it cannot be assumed with certainty that a corresponding resolution is permitted despite the new legal regulations. The risk of incorrect decision-making by the foundation bodies is rather high, since formally incorrectly passed resolutions by the foundation bodies are fundamentally void and therefore ineffective.
Consent of all meeting participants with a virtual meeting recommended
The legally safest way to enable the Board of Trustees to pass resolutions by telephone / video conference in the future is to make a corresponding amendment to the articles of association.
If, despite the uncertain legal situation, a decision by a foundation body is carried out by telephone or video conference without a corresponding provision in the articles of association, the consent of all members of the foundation body to conduct the telephone / video conference should be obtained in any case before voting.
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