Although most of the questions have been answered either in writing or during the Q&A session at the end of the LibreOffice conference, some community members have asked for specific answers to what are still considered open questions.
Before giving a specific answer to these open questions, let me repeat what I repeated at least three times during the Q&A session:
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The extraordinary decision taken by the Board has been extremely difficult to take and has required an increase in voluntary work in order to find the appropriate legal support (which has been confirmed by the opinion of two independent lawyers);
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The unfortunate situation has confirmed the need to improve the election rules to ensure that similar situations do not occur in the future. The change to the voting rules, once agreed by the BoD, will be shared and discussed publicly with the TDF Trustees;
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The extraordinary decision is not related to a person and their affiliation, as it would have been the same if any other member or deputy of the previous BoD had been elected to the Membership Committee (i.e. Thorsten Behrens, Emiliano Vavassori, Gábor Kelemen, Ayhan Yalçınsoy and Gabriel Masei), due to the incompatibility between the oversight role of the Membership Committee and the 2024 audit of the actions of the Board in 2023.
These are the open questions:
1. claim of illegitimacy: what is the basis for a claim of illegitimacy / disqualification of the elected member’s candidacy (as opposed to whether it is desirable or not) (found here);
2. power to disqualify a candidate retroactively: what gives the BoD the power to disqualify a candidate retroactively, given clear rules exist for handling possible situations of CoI? (found here);
3. being transparent: while working to be as transparent as possible with the community, as far as legally allowed, the board does not share either the legal statements received about the power to modify elections outcome, nor information about why it possibly can not share (see here);
4. the situation of the MC and audits: there is no information yet, showing that according to the foundation’s rules, or the practice of the past years, there would be a situation of ‘judging in ones own case’ when a BoD member becomes a MC member afterwards (details here).
I will start with the last question, because the legal opinions answering this question have been known to all members of the Board since March 2023, when both the lawyer of the foundation’s head association and a lawyer from the law firm Winheller explained how the audit works, confirming what TDF’s general counsel had already stated before:
Lawyer from Foundation’s Head Association
“I am happy to provide you with an assessment regarding which of the three bodies (Board of Directors, Membership Committee, and Board of Trustees, cf. Art. 6 of the Statutes) has the power to appoint the auditor and which body must sign the engagement letter.
In fact, this cannot be clearly deduced from the Statutes. However, in my opinion, the competence to appoint lies with the supervisory body and not with the board of directors. This is also in line with very common practice, as otherwise supervisory rights cannot be exercised effectively.
According to the conception of the statutes, which I remember well, the primary supervisory body is the Membership Committee. It represents the foundation against members of the Board of Directors; the wording, which is almost identical to the German Stock Corporation Act, and also the other tasks and structure of the body show the clear parallel to the Supervisory Board of a stock corporation.”
Lawyer from the Law Firm Winheller
“It must therefore be deduced from general legal principles into which area of responsibility the task of selecting and/or commissioning the auditor falls according to the internal constitution.
The German Stock Corporation Act contains a clear provision in Section 111: “(1) The Supervisory Board shall supervise the management of the Company. (2) The Supervisory Board may inspect and audit the company’s books and records as well as its assets, namely the company’s cash and its holdings of securities and goods. (…) It shall issue the audit mandate to the auditor (…).” The competence to appoint, i.e. the selection of the auditor, lies with the Annual General Meeting (§ 119 para. 1 no. 4 AktG)
In principle, the provisions of stock corporation law cannot be directly applied to foundations. However, the Membership Committee (including the members’ board of trustees) is to be assessed on the basis of the regulation in § 12 para. 1 of the foundation’s statutes: “The Membership Committee represents the foundation judicially and extrajudicially against the members of the Board of Directors.” This corresponds in its content fully to § 112 AktG. Thus, the allocation of tasks is to a certain extent based on Stock Corporation Law. The membership committee is therefore similar in concept to a Supervisory Board under Stock Corporation Law. The different information obligations under § 9 (5), in contrast to § 8 (4) d. of the Foundation Statutes, also speak in favor of an orientation towards stock corporation law regulations.”
This means that all members of the previous board have known since March 2023 that the reason given against the election of a 2023 board member into the 2024 membership committee, i.e. the incompatibility between the supervisory role of the Membership Committee and the 2024 audit of the actions of the board in 2023, creates a clear CoI.
Although the principle that no one can be a judge in his own case is a fundamental legal principle that exists in most legislation, and was confirmed verbatim by the lawyer, I can give those who were not part of the previous Board the benefit of ignorance of the law. But those in possession of this information should have avoided raising a problem whose solution had been known for 18 months, thus creating a conflict situation within the project that was not necessary.
The Board’s decision was also supported by the expert opinion of a renown lawyer, who specialises in foundations and non-profit organisations, with whom the Board discussed the matter before announcing its decision (the text dates back to September, before the Board of Directors announced the decision, and this is the reason for verbs in the present and future tense):
However, the appointment of a member of a governing body, which is the case here, takes place in a total of three steps (according to MüKoBGB/Leuschner, Section 27 para. 13):
1. (Election) resolution of the responsible body (here: members’ board of trustees)
2. Execution of the appointment resolution by means of a declaration of appointment to the elected person
3. Acceptance of the appointment by the elected person
The election resolution of the board of trustees is undisputed, and the election procedure itself was not called into question during the “challenging phase”. In my opinion, a declaration of appointment to the elected has not yet been made; only the “preliminary results” are available, and thus the election result has not yet been determined and announced by the body responsible for this.
The election of the Membership Committee is prepared and monitored by the Board of Directors, § 12 para. 2 sentence 2. In my opinion, this also results in the responsibility for the announcement of the (final) election result and thus also the declaration of appointment to those elected. It is only after this that it is possible to actually accept the election.
However, by appointing a candidate who is subject to conflict, the Board of Directors would possibly violate its own duties. According to § 8 para. 4 sentence 1, the board of directors must already prevent possible conflicts of interest, not only eliminate them, but prevent them in advance. It would also be absurd to confirm a conflicted candidate (especially if the conflict is already public knowledge and the subject of discussion) for the office in the Membership Committee, who would then have to be excluded by the board due to the conflict of interest in accordance with § 8 para. 4 sentence 3.”
It follows from this opinion - which confirms the correctness of the Board’s decision - that open questions 1 and 2 are in fact misplaced, since the election of the candidate never took place and therefore there was no claim of illegitimacy, and the Board did not exercise any power to disqualify a candidate retroactively.
Quite simply, the candidate was not elected because the official announcement of his election never took place, much to the chagrin of those who still claim otherwise.
At this point, I recall that all of this was written - albeit in a different way and in less detail - in my posts, and was said at least three times during the Q&A session at the end of the LibreOffice conference.
And I also remember that when these things were said, there were people who protested loudly, including those who knew very well - since March 2023 - that the decision was in line with the dictates of the law, because the Membership Committee’s oversight role in relation to the 2024 audit, analysing the work of the 2023 Board, would have created a conflict of interest that could not be justified to the authorities, since it could have been eliminated a priori (as it was).
At this point, of course, the question of transparency falls away.
However, everything that has happened should not be underestimated, so the Board will try to improve its communication with the TDF Trustees - some of which has already happened and will continue - and will take steps to avoid the recurrence of exceptional situations that could cause problems and friction within the project.
We have already mentioned the revision of the election rules, but there are certainly other areas where improvements are needed. We also expect to receive suggestions from TDF Trustees.