Board Matters

FACT: ARTICLE 94

Summary:

  • Article 94 gives the German Government a veto right over changes in the Articles
  • Article 94 is not valid under Hong Kong law and hence cannot be breached
  • The December Draft Articles were to replace it with a requirement to consult with the German Government on changes that would affect the structure or character of GSIS
  • The Board continues to consult with the German Government on any changes to the Articles regardless of Art. 94
  1. 94 of our Articles reads: “Any proposed amendment of these Articles must first be presented to the foreign office of the Federal Republic of Germany for prior approval.”
  2. This article means, and was always so understood by the GSIS Association and the German Consulate, that any changes to the Articles need approval from the German Government before they can be adopted.
  3. When the Articles Committee worked on amending the Articles in 2017 and 2018, we were informed by our then legal counsel, VTK Cheung, that this article was not valid under Hong Kong law and was therefore void and unenforceable. This view, which was confirmed in the opinion of Ashley Burns SC, was accepted by successive Boards.  The draft amended Articles approved by the Board in December 2018 had replaced Art. 94 with a requirement to consult with the German Consulate on any amendments to the Articles that affected the structure or character of the school.
  4. If an article is invalid under law, one cannot be in breach of it. Any assertion from a “legal expert” that Art. 94 would only require presentation for approval and not actual prior approval, as maintained by the Requisitionists should not be taken seriously.
  5. The German Consulate was informed of the Swiss demands as early as the Board was, if not earlier, when they were first presented in an email to the Board on May 10, 2019. At no point in our extensive negotiations on the December Draft Articles did the German Consulate or the ZfA voice any opposition to the Swiss demands, nor support.  At the Board meeting on March 4, 2020, the representative from the German Consulate stated that he did not think the ZfA would have any objection to the Swiss demands, which were to be voted on 2 weeks later.  Therefore, the claim that the Board did not present the Swiss amendments to the German Consulate is entirely unfounded.
  6. Most importantly, the Board continues to consult with the German Government on any changes to the Articles, regardless of the validity of Ar. 94. The draft amended Articles proposed at the EGM in December 2019 were thoroughly negotiated with the ZfA and supported by the ZfA, the German authority that oversees German Schools Abroad.  We continue to discuss changes to our Articles with the ZfA, not because of Art. 94 but because of our need to retain our status as a German School Abroad and our desire to maintain good relations with our German regulator.  We presented amendments to them as recently as on May 11, 2020.