8.2.3.3 Unitary board structure

The situation described above applies to dual board structures, but the case is comparable for unitary boards. In this situation a distinction must again be made between companies that fall within the ambit of the structure regime and companies that do not. If a company does not fall within the ambit of the structure regime the NEDs are suspended and removed in the same way as the executive directors in a situation with a dual board structure. Section 2: 134 paragraph 1 DCC states that a director may be suspended and removed by the body empowered to appoint him, at any time. This means that the general meeting can suspend or remove a NED. The articles of association may provide that the resolution to remove or suspend can only be passed by an increased majority, which represents a specific part of the capital. However, paragraph 2 states that the majority requirement may not exceed two-thirds of the votes and half of the capital. Paragraph 1 provides that the board of directors may suspend a NED at any time.

For companies with a unitary board structure that do fall within the ambit of the structure regime, the situation is comparable to companies with a dual board structure under the structure regime. Section 2: 164a DCC states that sections 2: 161 and 161a also apply if a unitary board structure is in place. This entails that all rights and regulations described above for the supervisory board with respect to the removal or suspension of supervisory directors in a dual board structure apply to the NEDs in a unitary board structure.