Corporate Governance und Reform des Gesellschaftsrechts in Deutschland und Europa
Abstract
1. The paper first highlights the main characteristics of the German Stock Corporation Act as compared to foreign company laws: its cogent character, the dual board structure, and the lack of a general derivative suit (which, however, is to some extent compensated for by the action to set aside a shareholders’ meeting resolution).
2. The next chapter gives an overviewof the main novelties of the recently enacted “Gesetz zur weiteren Reform des Aktien- und Bilanzrechts, zu Transparenz und Publizität (Transparenz-und Publizitätsgesetz)” (Law on Further Reform Measures in Stock Corporation and Accounting Law, and on Transparency and Disclosure) of July 19, 2002 (TransPuG). Its main issues are the enhancement of the supervisory board’s information rights and the reporting requirements of the board of directors to the supervisory board; the introduction of a comply-or-explain declaration of the supervisory board and the board of directors as to whether or not they followed the suggestions of the German Corporate Governance Code; and finally a requirement to establish a number of transactions for which the board of directors requires the supervisory board’s approval.
In addition, the main points of the slightly older “Gesetz zur Kontrolle und Transparenz im Unternehmensbereich” (Law on Control and Transparency in Business Organizations) of April 27, 1998 (KonTraG) are presented. Here, the implementation of a mandatory “controlling system” and provisions encouraging the set-up of specialized committees (e.g., an audit committee)by the supervisory board were pivotal.
3. Finally, the potential future developments on the European as well as on the German national level are analyzed. On the European field, the so-called Winter Group, followed by the Commission, favour a disclosure of the capital and control structure of national corporations and prefer this approach to a substantive regulation of the national corporate governance systems. In general, shareholders’ rights shall be expanded because their interest in their investment also uses the (other)stakeholders’ interest (the shareholders’ “watchdog function”). This includes the amelioration of cross-border voting as well as measures for an increased use of the Internet. Here again, the German legislature wants to reduce the hurdles for shareholders to sue the management for damages.
To improve the corporation’s internal control structure, specific decisions of the board shall only be taken with the approval of independent directors (in the monistic system)or with the approval of the supervisory board (in the dualistic system). Regarding executives’ compensation, the EU plan and the German national plans focus primarily on expanded disclosure. Finally, European and German proposals favour a personal liability of the directors for false or misleading financial information.
In the field of creditor protection, the English wrongful trading remedy under sec. 214 of the Insolvency Act shall be considered as a measure to be implemented across Europe. The quality of the auditors’ statements shall be enhanced, according to the European as well as the German proposals, by introducing a public oversight board over their work. In addition, some of their reports shall be subject to disclosure if the corporation becomes insolvent later on.
