In particular, the grounds of appeal concern the District Court’s view that (i) the involvement of DRRT and Therium in the establishment and activities of the Foundation gives rise to a critical question as to whether the Foundation has the interests of its constituency at heart; (ii) the Foundation carries out little or no activity of its own and relies on third parties for relevant support functions and cannot easily do without these third parties; (iii) the Supervisory Board had a high degree of control, with two of the three members having links to Therium or DRRT and the funding agreement with DRRT and Therium providing scope for influencing decision-making; and (iv) the Foundation’s Board lacked sufficient experience and expertise in the field of collective actions.
In essence, the Foundation contended that the sequence of events leading to the establishment of the Foundation was inconsequential, provided that the Foundation had the requisite decision-making authority over the proceedings. Moreover, the Foundation implements the activities required to achieve its objective and operates in accordance with the practices of both permanent interest groups and interest groups focused on a specific mass claim event. The Supervisory Board does not assume a managerial role, but rather serves in a supervisory and advisory capacity. At the time of the judgment, the Supervisory Board was comprised of a majority of independent members, a ratio that has been further strengthened with the recent replacement of one of its members (Pieter Schuurs has replaced Christoph Kuzaj and has assumed the role of chairman from Karl Peter Puszkajler). Furthermore, the Foundation asserts that it is not reliant on DRRT and that it possesses the requisite expertise and experience among its board and supervisory board members and external advisors.
Airbus, the responsible executives and the auditor will have until the beginning of June to respond to the Foundation’s statement of grounds of appeal, with some of them appealing against certain parts of the judgment in first instance.
