In the event of a dispute between the company and the general works council or works council as to whether a supervisory board is to be formed in a GmbH that has not yet had a supervisory board in accordance with the provisions of the Third Participation Act, this must be decided in accordance with a resolution of the Seventh Senate of April 16, 2008 ( 7 ABR 6/07 ). Election of employees’ supervisory board members is a status procedure in accordance with Section 27 EGAktG, Section 98 Paragraph. 1 AktG must be carried out before the regional court which has exclusive jurisdiction.
§ 98 Abs. 1 AktG expressly only regulates the case in which it is disputed or uncertain as to which legal regulations the supervisory board is composed of. The provision, which directly applies only to stock corporations, does not make any explicit provision as to whether the status procedure must also be carried out if it is not certain that the company even needs to form a supervisory board.
Due to the meaning and purpose of the provisions in Section 96 Para. 2, §§ 97 to 99 AktG and the reference in § 27 EGAktG, however, the need for a prior status procedure also arises to clarify the question of whether a supervisory board must be formed in accordance with the Third Participation Act for a GmbH that has not yet had a supervisory board. In such a case, the election of the employees’ Supervisory Board members is only permitted after the status procedure has been carried out. If the election is carried out without prior status proceedings, it is void.