Definition and General Meaning of Quorum
Die Quorum is a central term in German law and describes the ability of a body, particularly a collegial body, to make effective decisions. It is relevant in numerous areas of law, especially company law, association law, public law, and within parliamentary bodies. Quorum ensures that a body’s decisions are democratically legitimized and legally binding. If the decision-making body lacks quorum, resolutions passed are fundamentally invalid or contestable.
Requirements and Determination of Quorum
Composition and Attendance Quorum
The exact definition of quorum is usually found in law, the articles of association, the bylaws, or a partnership agreement. As a rule, a minimum number of members is required to be able to pass a valid resolution (the so-called attendance quorum). Often, quorum is already achieved if more than half of all voting members are present (simple majority), but a qualified quorum (e.g., two-thirds majority) may also be required.
Determining Quorum
Quorum is usually determined at the beginning of a meeting by the chair of the body (board, chairperson, president), and partly also continuously upon request of a member. It is a mandatory agenda item and must, if necessary, be recorded in the minutes. Without quorum, the body cannot make legally effective decisions.
Quorum in Different Areas of Law
Company Law
In company law, for example in stock corporations (§ 133 AktG), limited liability companies, or cooperatives, quorum is of particular importance. Here, the requirements are often stipulated by law or the articles of association. For a stock corporation’s general meeting, quorum is determined by the share capital represented; for a GmbH shareholder meeting, by the company shares present.
Association Law
For associations, § 32 BGB states that, unless otherwise stipulated in the bylaws, quorum exists without a minimum attendance. In practice, bylaws often specify a quorum of, for example, one third or half of the voting members.
Public Law and Municipal Bodies
In municipal bodies, councils, and committees, quorum is determined by the rules of the respective municipal or local constitution. Often, a certain percentage of members is required. In some cases, quorum can also be formally established during the meeting.
Parliamentary Bodies
In the Bundestag and state parliaments, quorum is explicitly regulated. According to § 45 of the Rules of Procedure of the German Bundestag, Parliament is quorate if more than half of the members are present. Determination may be made by counting, if there is doubt.
Consequences of Missing Quorum
If a body is not quorate during a vote, the decisions made have no legal effect or are contestable. Resolutions passed without a valid quorum are considered void or can, depending on the regulations, be annulled upon request.
Repeat Meeting and Renewed Quorum
Many statutes and bylaws contain regulations on the so-called repeat meeting or substitute dates. If a properly convened meeting cannot take place due to a lack of quorum, in many cases, any member present at a reconvened meeting is sufficient for quorum. This rule serves to avoid deadlock.
Special Provisions, Exceptions, and Best Practice
Association bylaws, partnership agreements, and rules of procedure may deviate from statutory standard provisions and stipulate individual quorums, notice periods, and procedures for determining quorum, as long as they do not conflict with mandatory law. Special provisions for virtual or hybrid meetings are also to be considered, which have gained particular importance due to digitalization laws and the COVID-19 pandemic.
Importance of Quorum for Effectiveness and Legal Certainty
Proper determination and documentation of quorum is essential for the legal validity and sustainability of resolutions. Violations of these requirements can lead to challenges, legal disputes, or the nullity of decisions, impairing the ability to act for companies, associations, or public bodies. It is recommended to carefully check and document quorum at all times to avoid later disputes.
References
- German Civil Code (BGB), especially § 32 and § 40 BGB (association law)
- German Stock Corporation Act (AktG), especially § 133 AktG (general meetings)
- German Limited Liability Companies Act (GmbHG)
- Rules of procedure of German parliaments and municipal representative bodies
- Model bylaws of associations and companies
This article provides a comprehensive overview of quorum and its significance in various legal contexts to give a well-founded insight into the legal requirements and implications of this central prerequisite for decision-making bodies.
Frequently Asked Questions
How is quorum determined legally?
The determination of quorum is usually made at the beginning of a meeting or session by the chairwoman or chairman. In a legal context, this means checking whether the minimum number of voting members – the so-called quorum – specified in the articles of association, bylaws, or law is actually present. This can be done through a formal attendance list or by a roll call. In some cases, specific regulations require that the determination of quorum is explicitly recorded in the minutes. Depending on the legal form – for example, under association law (§ 32 BGB), condominium law (§ 25 WEG), GmbH or stock corporation law – the requirements for determining quorum and the consequences of its absence vary. If during the meeting it becomes apparent that the necessary number of voting members is no longer present, it must be re-checked whether quorum still exists.
What happens legally if a meeting is not quorate?
If a meeting is found to be not quorate, no valid resolutions may be passed. Any resolutions nonetheless adopted are generally void and have no legal effect. The legal consequences are often stipulated in the relevant articles of association, bylaws, or association regulations. In many cases, a new meeting must be convened. Sometimes, a so-called substitute or repeat meeting can be called, which is then quorate regardless of the number of attendees – provided this is explicitly stipulated in the articles of association and announced in the invitation.
Can quorum be contested retrospectively?
Challenging quorum retrospectively is legally possible, particularly if there are substantial doubts that the quorum was actually achieved at the time of the resolution. Such a challenge is usually made by filing a lawsuit or application with the court within prescribed deadlines, depending on the type of organization and the applicable statutory or bylaw requirements. The burden of proof is generally on the challenger, who must demonstrate that the required number of eligible voters was not present at the time of the resolution. Where lack of quorum is established, the corresponding resolutions are considered invalid.
Which statutory provisions exist regarding quorum?
The statutory requirements for quorum are found in different laws depending on the legal form. For associations, these are in particular §§ 32 ff. BGB, for condominium owners’ associations § 25 WEG, for corporations the relevant provisions in the GmbH Act (§§ 48 ff. GmbHG) and in the Stock Corporation Act (§§ 118 ff. AktG). The laws often only set out basic principles, while the specific details – such as the size of the quorum or its reduction for repeat meetings – are usually left to the respective articles of association. It is important that statutory minimum requirements may not be undercut and that any amendments to articles of association on this subject must comply with statutory requirements.
Are there special rules for virtual or hybrid meetings?
With digitalization and particularly through legislation relating to the COVID-19 pandemic, special provisions for quorum at virtual and hybrid meetings have emerged. Legally, it must be ensured that both physically and virtually present participants count towards quorum, provided their participation can be clearly verified and recorded in the minutes. It is crucial that the technical possibility for members to exercise their rights is guaranteed and participants’ identities remain verifiable. Bylaws may provide different regulations, which, however, must be legally sound and properly communicated to members.
How is quorum determined in the case of proxy voting?
Legally, the possibility of proxy voting (e.g., by power of attorney) is usually regulated by the bylaws and is subject to specific formal requirements. For determining quorum, both those personally present and those validly represented by proxy are generally counted. It is necessary for proxies to be reviewed and documented before the vote. Only properly authorized members are eligible to vote and count towards quorum. Faulty or invalid proxies can result in the quorum not actually being achieved and resolutions being void.
Can individual resolutions remain valid after partial loss of quorum?
In a legal context, this depends on when quorum existed. If, for example, quorum is determined at the beginning of the meeting and then later falls below the required threshold due to withdrawals, usually all resolutions made in the non-quorate state are contestable or void. Only resolutions adopted while quorum existed remain effective. The specific legal assessment is guided by bylaw provisions and relevant case law. It is advisable to suspend meetings if quorum is lost and only continue after re-establishing the quorum.
