(1) The supervisory board is composed as follows:
in the case of companies to which the Employee Co-Determination Act applies: of supervisory board members representing the stockholders and the employees;
in the case of companies to which the Act on Co-determination in the Coal, Iron and Steel Industry applies: of supervisory board members representing the stockholders and the employees and of further members;
in the case of companies to which sections 5 to 13 of the Supplementary Co-determination Act apply: of supervisory board members representing the stockholders and the employees and of one further member;
in the case of companies to which the Act on One-Third Employee Representation in the Supervisory Board (Drittelbeteiligungsgesetz – DrittelbG) applies: of supervisory board members representing the stockholders and the employees;
in the case of companies to which the Act on Employee Co-Determination in the Case of a Cross-Border Merger (Gesetz über die Mitbestimmung der Arbeitnehmer bei einer grenzüberschreitenden Verschmelzung – MgVG) of 21 December 2006 (Federal Law Gazette I p. 3332), as amended, applies: of supervisory board members representing the stockholders and the employees;
in the case of companies to which the Act on Employee Co-Determination in the Case of a Cross-Border Change of the Legal Form or of a Cross-Border Division (Gesetz über die Mitbestimmung der Arbeitnehmer bei grenzüberschreitendem Formwechsel und grenzüberschreitender Spaltung – MgFSG) of 4 January 2023 (Federal Law Gazette 2023 I no. 10), as amended, applies: of supervisory board members representing the stockholders and the employees,
in the case of any other companies: solely of supervisory board members representing the stockholders.
(2) 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 supervisory board is to be composed of women at a minimum ratio of 30 per cent and of men at a minimum ratio of 30 per cent. The minimum ratio is to be fulfilled by the supervisory board as a whole. Where, prior to the election, the side of the shareholder representatives or the side of the employee representatives raises an objection with the chairperson of the supervisory board, based on a resolution adopted by a majority, against the fulfilment of the ratio by the supervisory board as a whole, the minimum ratio for that election is to be fulfilled separately by the side of the shareholder representatives and by the side of the employee representatives. In all cases, the ratio is to be mathematically rounded up or down in order to achieve full numbers of persons. If, in the case of the ratio being fulfilled by the supervisory board as a whole, the higher ratio of women of one side is reduced subsequently and that side then objects to the fulfilment of the ratio by the supervisory board as a whole, then this will not render the composition of the respective other side ineffective. Where an election of members of the supervisory board by the general meeting and their delegation to the supervisory board violates the requirement as to the minimum ratio, this election will be null and void. Where an election is declared to be null and void for other reasons, the elections performed in the meantime do not violate the requirement as to the minimum ratio in this regard. The acts governing co-determination set out in sentence 1 are to be applied to the election of supervisory board members representing the employees.
(3) In the case of listed companies that have resulted from a cross-border merger, a cross-border change of the legal form or a cross-border division whose supervisory or administrative organ consists, in accordance with the Act on Employee Co-Determination in the Case of a Cross-Border Merger or the Act on Employee Co-Determination in the Case of a Cross-Border Change of the Legal Form or of a Cross-Border Division, of the same number of shareholder representatives and of employee representatives, the ratio of women and men sitting on the supervisory or administrative organ must constitute, in each case, at least 30 per cent. Subsection (2) sentences 2, 4, 6 and 7 applies accordingly.
(4) The composition of the supervisory board may be governed by other than the statutory provisions last applied only in cases in which, pursuant to section 97 or pursuant to section 98, the statutory provisions set out in the notice published by the management board or set out in the court decision are to be applied.