Resignation of the Supervisory Board of Deutsche Bahn AG
Why the immediate resignation of Supervisory Board Chairman Odenwald won't work
Der Aufsichtsratsvorsitzende der Deutschen Bahn AG, Michael Odenwald, ist laut Pressemitteilungen von seinem Posten als Aufsichtsratsvorsitzender zurückgetreten. Doch geht das rechtlich so einfach? Jein.
Author: Dr. Ronny Jänig, LL.M. (Durham), lawyer and specialist in commercial and corporate law in Berlin
According to press releases, Michael Odenwald, Chairman of the Supervisory Board of Deutsche Bahn AG, has resigned from his position as Chairman of the Supervisory Board. But is it legally that simple? Yes and no.
Resignation of the Supervisory Board? Doesn't that mean resignation from office?
A member of the Supervisory Board holds an office. This supervisory board office can end in various ways. The typical reason for termination is simply the end of the term of office; a member of the supervisory board is appointed for a fixed term. Atypical reasons for termination of the supervisory board office are :
- dismissal of the supervisory board member by the general meeting,
- death of the supervisory board member,
- resignation from office.
The Stock Corporation Act does not recognize the "resignation" of the Supervisory Board. This is not a bad thing, because the resignation is simply the colloquial word for the resignation from office and this - despite the fact that it is not mentioned by the Stock Corporation Act - is in principle permissible. Resignation of the supervisory board and resignation from office are the same thing, both are permissible.
When can the Supervisory Board resign and how? Read the Articles of Association!
A member of the supervisory board can - at least according to the prevailing expert opinion - resign from office at any time and without cause. In principle, resignation does not require an important reason or a special period of notice.
However, quite a few articles of association (articles of association of an AG) contain regulations on how, when and under what conditions a resignation can only take place. Conceivable, here are regulations on:
- Reasons under which a resignation (resignation) can take place
- Resignation deadlines
- Formalities of the declaration of resignation
Therefore, the following applies to the AG and the Supervisory Board: Read the AG's Articles of Incorporation!
Supervisory Board Chairman Odenwald must observe deadline for resignation!
The Articles of Association of Deutsche Bahn AG actually contain a special provision for the resignation of members of the Supervisory Board under Section 9 (7), which also applies to Mr. Odenwald. It states:
"Members [note: of the Supervisory Board] ... may resign from office at any time by giving four weeks' notice in writing to the Chairman of the Supervisory Board or to the Board of Management."
The Chairman of the Supervisory Board of Deutsche Bahn AG could therefore not resign from office immediately. He could resign from office, but with a (minimum) notice period of 4 weeks. Concerns that the Chairman of the Supervisory Board is now a lame duck should be unjustified. In principle, the Supervisory Board is not a permanent management body. However, if decisions have to be made at short notice, the lame duck situation looks different ...
Resignation: Deutsche Bahn AG's Articles of Association flawed!?
The Articles of Association of Deutsche Bahn AG stipulate that resignation can be declared in writing to the Chairman of the Supervisory Board OR the Board of Management. On the basis of the legal premise that the Board of Management represents the AG vis-à-vis the Supervisory Board and the narrow limits imposed by Section 23 (5) AktG on the drafting of the Articles of Association, there are considerable doubts as to whether the provision in Section 9 (7) of the Articles of Association of Deutsche Bahn AG is effective. This applies at any rate with regard to the stipulation that resignation may also be declared to the Chairman of the Supervisory Board.
It is therefore surprising that the register court (here: Charlottenburg Local Court) "waved through" the Articles of Association. Was there no proper examination in Berlin, as at the airport?
To be clear, Mr. Odenwald can of course give his letter of resignation to the janitor of Deutsche Bahn AG at Potsdamer Platz. But this does not make the resignation effective.
Mr. Odenwald (and every other member of the Supervisory Board) is therefore strongly advised to send his letter of resignation not only to the janitor, but also to the Board of Management of Deutsche Bahn AG.
Last but not least: Resignation of the Chairman of the Supervisory Board
There are no special rules governing the resignation of the Chairman of the Supervisory Board. It is customary to declare resignation from office as Chairman of the Supervisory Board at the same time as declaring resignation from office as Member of the Supervisory Board. This is not necessary.