(1) Where the supervisory board is not comprised of the number of members required for it to have a quorum, the court is to appoint the additional members until the full number is obtained, upon a corresponding petition being filed by any of the following: the management board, by a member of the supervisory board or by a stockholder. The management board is under obligation to file such petition without undue delay unless it is to be expected that the additional appointment will be made in due time prior to the next meeting of the supervisory board. Where the supervisory board is to be comprised also of members representing the employees, the following parties also may file such petition:
1. the central works council of the company or, where only a single works council exists for the company, the works council, as well as, in the case of the company being the controlling enterprise of a group of enterprises, the group works council,
2. the central committee, or corporate council, representing the executive staff of the company or, where only a single council representing the executive staff exists for the company, the council representing the executive staff, as well as, in the case of the company being the controlling enterprise of a group of enterprises, the group council representing the executive staff,
3. the central works council of some other enterprise, the employees of which vote themselves in the election, or vote through delegates, or, where only a single works council exists in the other enterprise, the works council,
4. the central committee representing the executive staff, or the corporate council representing the executive staff, of some other enterprise, the employees of which vote themselves or vote through delegates, or, where only a council representing the executive staff exists in the other enterprise, the council representing the executive staff,
5. at least one tenth of those employees, or one hundred of them, who vote themselves in the election or who vote through delegates,
6. umbrella organisations of the unions that have the right to nominate members of the supervisory board representing the employees,
7. unions that have the right to nominate members of the supervisory board representing the employees.
Where, pursuant to the Employee Co-Determination Act, the supervisory board is to consist also of members representing the employees, then besides the parties entitled to file a petition pursuant to sentence 3, one tenth, in each case, of the employees designated in section 3 (1) no. 1 of the Employee Co-Determination Act having voting rights or of the executives within the meaning of the Employee Co-Determination Act having voting rights are entitled to file a petition. A complaint may be lodged against the decision taken.
(2) Where, for a period longer than three months, the supervisory board is comprised of fewer members than the number stipulated by the law or in the by-laws, the court is to appoint the additional members, upon a corresponding petition having been filed, until the full number is obtained. In urgent cases, the court is to appoint the additional members to the supervisory board also prior to expiry of said time limit upon a corresponding petition having been filed. The entitlement to file a petition is governed by subsection (1). A complaint may be lodged against the decision taken.
(3) Subsection (2) is to be applied to a supervisory board in which employees have a co-determination right pursuant to the Employee Co-Determination Act, the Act on Employee Co-Determination in the Iron- and Steel-Producing Industry or the Supplementary Co-determination Act, subject to the proviso
1. that the court may not make an appointment to the supervisory board to obtain the full number as regards the further member who is elected, pursuant to the Act on Employee Co-Determination in the Iron- and Steel-Producing Industry or the Supplementary Co-determination Act, upon being nominated by the other members of the supervisory board,
2. that any case invariably will be an urgent case if the supervisory board is not comprised of all those members – to the exception of the further member set out in no. 1 – of which it is to be comprised by law or in accordance with the by-laws.
(4) Where the supervisory board also is to include members of the supervisory board representing the employees, the court is to appoint additional members to same to obtain the full number such that the ratio relevant for its composition is obtained. Where additional members are appointed to the supervisory board in order to obtain the full number required for it to have a quorum, this will apply only insofar as the number of supervisory board members required for it to so have a quorum enables this ratio to be maintained. Where a member of the supervisory board is to be replaced by a member who, according to the law or the by-laws, must meet particular pre-requisites as regards their person, the court-appointed supervisory board member also must meet these pre-requisites. Where a member of the supervisory board, regarding the election of whom an umbrella organisation of the unions, a union or the works councils would have nomination rights, is to be replaced, the court as a rule is to consider the nominations made by these bodies unless overriding interests of the company or of the general public conflict with the appointment of the person so nominated; the same applies, if the member of the supervisory board were to be elected by delegates, to common nominations submitted by the works councils of the enterprises in which delegates are to be elected.
(5) In the case of listed companies, to which the Employee Co-Determination Act, the Act on Co-determination in the Coal, Iron and Steel Industry or the Supplementary Co-determination Act applies, the appointment by the court of additional members to the supervisory board is to be performed subject to the stipulations of section 96 (2) sentences 1 to 5.
(6) The office of the court-appointed member of the supervisory board will cease to exist in any case as soon as the deficiency is remedied.
(7) The court-appointed member of the supervisory board is entitled to reimbursement for their reasonable cash expenditures and, if remuneration is granted to the members of the company’s supervisory board, then the court-appointed member is entitled to remuneration for their activities. Upon the supervisory board member filing the corresponding petition, the court will establish the expenditures and the remuneration. A complaint may be lodged against the decision taken; filing a complaint on points of law is precluded. Based on the decision taken, compulsory enforcement can be pursued in accordance with the Code of Civil Procedure.