Invitation by email to the members' meeting?

May a golf club that requires written invitation to the members' meeting in its articles of association invite its members by email? The 27th Civil Division of the Higher Regional Court (OLG) Hamm has now decided on this.

A golf club based in Essen applied for the registration of a constitutional amendment passed by its members' meeting in the association register. This was rejected by the Local Court (AG) on the grounds that the members' meeting had not been properly convened. The Local Court (AG) argued that the written form requirement stipulated in the articles of association had not been complied with, as the association had invited its members by email.

The association then appealed against this decision.

Court decision

The Higher Regional Court (OLG) Hamm ruled by judgment of 24.09.2015 – Az. 27 W 104/15 – that associations may send invitations to their members' meeting by email, even if their articles of association contain a written form requirement.

The court explains that inviting members by email gives rise to no objections. It satisfies the written form specified in the articles of association. This may be replaced by electronic form, whereby a signature is also not required. The prescribed written form is intended to ensure that members are aware of the scheduled meeting and its agenda. This is ensured when members are invited by email.

In this respect, the written form requirement differs significantly from the written form agreed in general business practice. In business practice, the written form requirement is intended to achieve greater legal certainty on account of the significance of certain declarations, such as the termination of a contractual relationship. The written form here also serves a concluding, identifying, authenticating and cautionary function. In the case of invitations to an association members' meeting, by contrast, these functions are of entirely subordinate significance.

Conclusion

Where a written form requirement agreed in normal business practice applies, transmission by email is not sufficient. Where there are exceptions to this rule in the non-commercial sphere, it must be noted that at least members without an email address must be invited by post.