(1) The supervisory board appoints members of the management board for a maximum term of five years. A re-appointment or extension of the term of office, in each case for a maximum of five years, is permissible. This will require a new resolution to be adopted by the supervisory board, which may be so adopted at the earliest one year prior to expiry of the current term of office. Solely for appointments for a term shorter than five years may an extension of the term of office be provided for without a new resolution being adopted by the supervisory board, the pre-requisite being that this does not result in a total term of office longer than five years. This applies accordingly to the employment agreement; however, the employment agreement may provide that it is to continue in force until the expiry of the term should the term of office be extended.
(2) Where several persons are appointed as members of the management board, the supervisory board may designate one member as chairperson of the management board.
(3) A member of a management board consisting of several persons is entitled to request that the supervisory board revoke their appointment if said member temporarily is unable to fulfil the duties entailed by their appointment due to the protection accorded to working mothers, due to the member’s taking parental leave, due to their giving care to a family member or due to their having fallen ill. Where a management board member exercises this right, the supervisory board must revoke the appointment of said management board member
1. and in so doing must make a commitment, in the case of the protection of working mothers, to re-appoint them upon expiry of the periods of protection set out in section 3 (1) and (2) of the Maternity Protection Act (Mutterschutzgesetz – MuSchG),
2. and in so doing must make a commitment, in the cases of parental leave being taken, care being given to a family member or the management board member having fallen ill, to re-appoint them following a period of up to three months as requested by the management board member; the supervisory board may refrain from revoking the appointment for grave cause.
In the cases set out in sentence 2 no. 2, the supervisory board may revoke the appointment of the management board member, upon the latter’s request, while making a commitment to re-appoint them following a period of up to 12 months. The end foreseen for the prior term of office will continue in force also as the end of the term of office following the re-appointment. In all other cases, the provisions of subsection (1) remain unaffected. The requirement made in section 76 (2) sentence 2 as to the management board having to consist of, at a minimum, two persons, is deemed met also during the period governed by sentences 2 or 3 if, without the revocation, this requirement were met. Any instances in which the number of management board members falls below the minimum stipulated by the by-laws during the period governed by sentences 2 or 3 do not merit consideration. Section 76 (3a) and section 393a (2) no. 1 do not apply to appointments during the period governed by sentences 2 or 3 if, without the revocation, the requirement as to gender participation were met. Section 88 is to be applied accordingly during the period governed by sentences 2 or 3.
(4) The supervisory board may revoke the appointment as member of the management board and the designation as chairperson of the management board for grave cause. Such grave cause consists of, in particular, gross dereliction of duties, inability to properly conduct the company’s affairs, or a vote of no confidence by the general meeting, unless the confidence has been withdrawn on grounds that are manifestly irrelevant. This applies also to the management board appointed by the first supervisory board. The withdrawal is effective until its ineffectiveness has been determined by a court’s declaratory judgment and this has become final and binding. The claims attaching to the employment agreement are governed by the general provisions.
(5) The provisions of the Act on Co-determination in the Coal, Iron and Steel Industry relating to the special majority required for a resolution to be adopted by the supervisory board regarding the appointment of a member of the board responsible for human resources and social welfare matters (Arbeitsdirektor) or the revocation of their appointment remain unaffected.