Extension of the statutory regulations in association and foundation law in accordance with the GesRuaCOVBekG until 31.12.2021
In the article on the VOELKER homepage "Current legal regulations in association and foundation law to combat the effects of the COVID-19 pandemic" dated March 26, 2020, we provided information on how and with what civil law content the federal legislator reacted quite quickly to the COVID-19 pandemic in association and foundation law, as well as an initial assessment at the time.
On March 25, 2020, the German Bundestag also passed the "Act on Measures in Corporate, Cooperative, Association, Foundation and Condominium Law to Combat the Effects of the COVID-19 Pandemic" (GesRuaCOVBekG) as part of one of the so-called corona legislative packages in the spring (Federal Law Gazette I p. 569, 579-572). This law was promulgated on March 27, 2020 and came into force on March 28, 2020.
Its special regulations under association and foundation law, which have applied since then, are as follows
"Section 5 Associations and foundations
(1) A member of the board of directors of an association or foundation shall remain in office after the expiry of their term of office until they are dismissed or their successor is appointed.
(2) By way of derogation from § 32 paragraph 1 sentence 1 of the German Civil Code, the board of directors may, even without authorization in the articles of association, allow association members to
1. to participate in the general meeting without being present at the meeting venue and to exercise membership rights by means of electronic communication or
2. to cast their votes in writing before the general meeting is held without attending the general meeting.
(3) Notwithstanding Section 32 (2) of the German Civil Code, a resolution is valid without a meeting of members if all members have been involved, at least half of the members have cast their votes in text form by the deadline set by the association and the resolution has been passed with the required majority."
§ Section 7 (5) of this law also stipulates that "Section 5 [...] shall only apply to appointments of association or foundation board members expiring in 2020 and general meetings of associations held in 2020".
These statutory provisions quoted verbatim above, which, among other things, allow resolutions to be validly passed outside of a (physical) general meeting even without a basis in the articles of association, were originally limited until December 31, 2020.
Section 8 GesRuaCOVBekG already authorizes "[t]he Federal Ministry of Justice and Consumer Protection [...] to extend the validity of Sections 1 to 5 by statutory order without the consent of the Bundesrat in accordance with Section 7 until 31 December 2021 at the latest if this appears necessary due to the continuing effects of the COVID-19 pandemic in the Federal Republic of Germany."
The Federal Ministry of Justice and Consumer Protection (BMJV) has now used this authorization with the "Ordinance on the extension of measures in company, cooperative, association and foundation law to combat the effects of the COVID-19 pandemic (GesRGenRCOVMVV)" of 20 October 2020 (Federal Law Gazette I p. 2258), which was published in the Federal Law Gazette on 28 October 2020 and entered into force on 29 October 2020.
With this ordinance, the BMJV has, among other things , "extended until December 31, 2021" the regulations under association and foundation law in Section 5 GesRuaCOVBekG quoted above. This means that these statutory provisions of association and foundation law now apply until the end of 2021.
As part of the 4th annual conference of the Stuttgart Non-Profit Forum on November 5, 2020, which will take place exclusively online for the first time this year and free of charge for all participants, lawyer Volker Rieger will give a brief update on virtual and online solutions for general meetings and committee meetings - i.e. executive board, advisory board, committee, supervisory board, supervisory board, foundation board, etc. - for associations and foundations without corresponding statutory regulations.
Status: 29.10.2020