VERDICT
In the administrative litigation
Mr. xxx's
Plaintiff,
Authorized representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
the Magistrate of the City of Kassel,
Town Hall, 34117 Kassel,
Defendant,
due to municipal constitutional and administrative law
The Administrative Court of Kassel – 3rd Chamber – through
Judge xxx as a single judge,
ruled as follows based on the oral hearing of March 10, 2026:
It is hereby declared that the elections of the representatives of the City of Kassel to the Supervisory Board of Documenta and Museum Fridericianum gGmbH on July 12, 2021 (Magistrate's Documents 308/2021 and 309/2021) are invalid. The remainder of the action is dismissed.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount of 110% of the amount enforceable under the judgment, unless the plaintiff provides security in the amount of 110% of the amount to be enforced before enforcement proceedings commence.
FACTS
The plaintiff, a member of the defendant's city council, objects to the election of the representatives to the supervisory board of documenta and Museum Fridericianum non-profit limited liability company by the defendant's city council.
The articles of association of documenta and Museum Fridericianum gGmbH, as amended on December 6, 2016, stipulated:
Section 10
Supervisory Board
(1) The Supervisory Board consists of twelve members.
(2) The Mayor of the City of Kassel is, as long as the City is a shareholder, a member of the Supervisory Board by virtue of his office. The City of Kassel, in its capacity as a shareholder, has the right to appoint four additional members to the Supervisory Board.
(3)– (7) (…)
In its meeting of July 12, 2021, the city council of the defendant resolved, "pursuant to Section 10 Paragraph 2 of the articles of association," to elect City Councillor Dr. Susanne Völker (Head of Cultural Affairs) to the supervisory board of documenta and Museum Fridericianum gGmbH (Document No. 308/2021). The city council elected three further supervisory board members by proportional representation (Document No. 309/2021).
The plaintiff filed an objection on August 9, 2021, arguing that all four other supervisory board members should have been elected according to proportional representation. This objection was rejected by a formal notice of rejection dated November 22, 2021.
The plaintiff filed a lawsuit on December 22, 2021.
The plaintiff argues that the resolution regarding submission no. 308/2021 also constitutes an election. All four other supervisory board members should have been elected by proportional representation because they are several similar unpaid positions. Furthermore, the plaintiff has requested the involvement of the Kassel city council.
The plaintiff requests
a ruling that the elections to the Supervisory Board of documenta and Museum Fridericianum gGmbH of 12 July 2021 (Magistrates' proposals 308/2021 and 309/2021) are invalid, and that the appeal decision of 22 November 2022 be overturned.
The defendant requests that
the action be dismissed.
The defendant argues that the lawsuit should have been filed against the Kassel City Council. She objects to any amendment of the claim. The lawsuit is inadmissible insofar as it challenges the resolution on proposal no. 308/2021, as this resolution does not constitute an election. The right to nominate a candidate for a supervisory board position was already addressed separately and validly by a separate resolution of the City Council on proposal no. 308/2021, as, in accordance with established practice, the appointee should possess special expertise. The intention is to ensure that the Kassel City Council's Head of Cultural Affairs represents the City Council on the supervisory board of documenta gGmbH, given their specialized knowledge and close ties to the subject matter. Therefore, specific professional qualifications are required for this position, meaning that the candidate is not equivalent to the other members of the supervisory board.
The articles of association of documenta and Museum Fridericianum gGmbH were revised on November 12, 2024 and now contain the following provision:
Section 9
Composition of the Supervisory Board
1. The Supervisory Board consists of thirteen (13) members. Efforts should be made to ensure the most balanced gender ratio possible when composing the Supervisory Board. The Supervisory Board members are appointed by the shareholders as follows:
2. The City of Kassel appoints the Mayor. He/She is the Chair of the Supervisory Board ex officio. The City of Kassel, in its capacity as a shareholder, has the right to appoint four additional Supervisory Board members. These should come from related fields.
3. – 11. (…)
By decision of the Chamber dated December 4, 2024, the legal dispute was transferred to the rapporteur as a single judge for decision.
For further details of the facts and the legal arguments, reference is made to the court file and the administrative records, which were made the subject of the oral proceedings.
REASONS FOR DECISION
The claim is justified to the extent indicated in the operative part of the judgment; otherwise, it is unfounded.
The admissibility of the action is not precluded by the fact that the City of Kassel, represented by its municipal council, is named as the defendant in the statement of claim. While this constitutes a violation of Section 67 Paragraph 2 Sentence 2 in conjunction with Section 55 Paragraph 6 Sentence 2 of the Hessian Municipal Code (HGO), according to which the action must be brought against the municipal executive (here: the municipal council), the plaintiff, who was represented by counsel, could certainly have avoided this violation. However, the statement of claim included the notice of objection dated November 22, 2021, which, together with the grounds for the action, clearly establishes that the action is directed against the elections, conducted by the municipal council in exercising its right of nomination, of the City of Kassel's representatives to be proposed to the shareholders' meeting for the supervisory board of documenta and Museum Fridericianum gGmbH. The court further notes that the letterhead of the notice of objection, in which the words "City of Kassel" and "The Magistrate" appear one above the other without being connected, does not clearly identify the author. The court has therefore corrected the heading ex officio. Moreover, an amendment to the complaint regarding the defendant is also appropriate (§ 91 para. 1 VwGO).
The lawsuit has not been resolved by the fact that, following the dismissal of the Head of Cultural Affairs elected under Proposal 308/2021, another member of the city council (the city treasurer) has since been elected. This election does not replace the two elections held on July 12, 2021, but merely modifies the election of a supervisory board member conducted by majority vote according to Proposal 308/2021. The appointment of three supervisory board members according to Proposal 309/2021 remained unaffected by this election, as did the defendant's "customary practice" of appointing the four supervisory board members in two rounds of voting using different methods.
The lawsuit is also well-founded. The elections of the four supervisory board members on July 12, 2021 (municipal council proposals 308/2021 and 309/2021) were unlawful, so it must be determined that they are invalid.
According to Section 125 Paragraph 1 Sentences 1-3 of the Hessian Municipal Code (HGO), the municipal council represents the municipality in companies owned by the municipality (municipal companies) or in which the municipality holds a stake. The mayor represents the municipal council ex officio; he may be represented by a member of the municipal council designated by him. The municipal council may appoint further representatives.
Section 67 paragraph 2 sentence 2 of the Hessian Municipal Code (HGO) stipulates that Section 55 applies mutatis mutandis to the elections to be carried out by the municipal council.
If several similar unpaid positions are to be filled, Section 55 Paragraph 1 Sentence 1 of the Hessian Municipal Code (HGO) stipulates that elections are held in a single ballot according to the principles of proportional representation; otherwise, a separate ballot is held for each position to be filled, determined by a majority vote. This provision is to be understood as meaning that proportional representation must be used for several similar unpaid positions; a majority vote is used for only one position or one nomination (KVR He/HGO/Bennemann, Section 55, marginal note 69). Proportional representation also applies to municipal nomination rights for the supervisory board of a limited liability company (Hessian Administrative Court, decision of July 8, 1999 – 8 UZ 1933/99 –, HGZ 1999, 436 f.).
First, it must be clarified that the appointment of one of the supervisory board members to be proposed to the shareholders' meeting, as outlined in document 308/2021, constitutes an election. This follows from the fundamental definition of the term "election" established by the Federal Constitutional Court in its decision of February 15, 1978 (– 2 BvR 134/76, 2 BvR 268/76 –, BVerfGE 47, 253 et seq.). According to this definition, an election is understood as the selection of one or more persons from a specific group of people. Furthermore, document 309/2021 is entitled "Election of the representatives of the City of Kassel to the Supervisory Board of documenta and Museum Fridericianum gGmbH." Finally, the cited decision of the Higher Administrative Court of Hesse (loc. cit.) also supports the conclusion that this constitutes an election.
The four members elected by the shareholders' meeting pursuant to Section 10 Paragraph 2 Sentence 2 of the articles of association are unpaid positions within the meaning of Section 55 Paragraph 1 Sentence 1 of the Hessian Municipal Code (HGO), since supervisory board members only receive an expense allowance. Furthermore, these were also equivalent positions.
The articles of association do not differentiate between the professional qualifications of the four elected supervisory board members. Specialized expertise is also "irrelevant" (as stated verbatim in KVR He/HGO/Bennemann, § 55 para. 30a), because, according to § 125 para. 1 sentence 4 GHO, all representatives of the municipal executive board are bound by the instructions of the municipal executive board, unless provisions of company law stipulate otherwise. The defendant cannot rely on "customary practice" because there is no normative basis. The City of Kassel was free to ensure that more detailed provisions were included in the articles of association. The defendant's approach of electing some supervisory board members by majority vote and others by proportional representation, contrary to the statutory requirement, violates the principle of proportional representation, which is already only partially applicable, because smaller factions are not represented on the supervisory board at all. Because the majority of the city council can determine the number of supervisory board members to be elected by majority vote, define their qualifications, and nominate candidates acceptable to them, without smaller factions being able to exert any influence. This constitutes a violation of the principle of proportionality in elections, as stipulated in Section 55 Paragraph 1 Sentence 1 of the Hessian Municipal Code (HGO).
The subsequent amendment to the articles of association does not change this. The addition "These should come from related fields," which is already quite vague, does not alter the uniformity of the supervisory board positions, because it applies to all four representatives of the city of Kassel to be proposed to the shareholders' meeting on the supervisory board of documenta and Museum Fridericianum gGmbH.
The plaintiff cannot, however, demand that the objection decision be overturned. Since this is an objective objection procedure, the objection decision is merely a procedural requirement and does not constitute a violation of the plaintiff's corporate rights.
The losing defendant shall bear the costs of the proceedings, §§ 154 para. 1, 155 para. 1 sentence 2 VwGO. The decision on provisional enforceability is based on § 167 VwGO in conjunction with §§ 708 et seq. ZPO.
The following is information on legal remedies.
