Resolutions

Resolutions are essential for all legal entities and form the basis of all actions taken by the association. Resolutions are adopted by the various bodies within the association.

Non-existent resolution

A resolution only exists if two requirements are met: the body adopting the resolution must have been convened in the correct manner and the required majority of the body’s members must have voted in favour of the proposal. A resolution that does not meet both of these requirements is considered non-existent and has no legal effect. Such a resolution cannot be ratified. It is conceivable that a resolution is adopted but is defective. Depending on the seriousness of the defect, such a resolution is either null and void or voidable.

Null resolutions

A resolution is null and void when it conflicts with the law or with the articles of association, or when it is adopted despite the absence of a prior act or notification required by law or the articles of association from or to another body than the one adopting the resolution. Nullity means that the resolution is deemed never to have existed.

In the first situation (in conflict with the law or the articles of association), examples include resolutions adopted by an unauthorised body, resolutions passed without the required quorum or those that violate public order or moral standards.

In the second situation (missing prior act or notification), examples include cases where a supervisory board has the right to make a binding nomination for the appointment of a board member. In this case, ratification of the resolution may be possible.

Voidable resolutions

A resolution may also be voidable. In such cases, the resolution is valid until it is annulled, after which it is deemed never to have existed.

A resolution is voidable if it is adopted in violation of provisions of the articles of association or internal provisions governing the adoption of resolutions, principles of reasonableness and fairness or internal regulations.

Examples of voidable resolutions include those adopted in breach of provisions concerning notice periods, agendas, the right to be heard, voting procedures or the inspection of documents. A short limitation period applies to voiding a resolution: a party who believes a resolution is voidable must take action within one year.