Germany Corporate Governance

DEFINITION:

“Corporate Governance involves a set of relationships between a company’s management, its board, its shareholders and other stakeholders. Corporate governance also provides the structure through which the objectives of the company are set, and the means of attaining those objectives and monitoring performance are determined.”

INTRODUCTION:

The German Corporate Governance Code presents essential statutory regulations for the management and supervision (governance) of German listed companies and contains internationally and nationally recognized standards for good and responsible governance. Its purpose is to promote the trust of international and national investors, customers, employees and the general public in the management and supervision of listed German stock corporations.

Companies can deviate from them, but are then obliged to disclose this annually. This enables companies to reflect sector and enterprise-specific requirements. Thus, the Code contributes to more flexibility and more self-regulation in the German corporate constitution. The remaining passages of the Code not marked by these terms contain provisions that enterprises are compelled to observe under applicable law. Primarily, the Code addresses listed corporations. It is recommended that non-listed companies also respect the Code.

DISTINCTIVE FEATURES:

1. SHAREHOLDERS AND THE GENERAL MEETING:

Shareholders:

• To the extent provided for in the Articles of Association the shareholders exercise their rights before and during the General Meeting and, in this respect, vote.
• In principle, each share carries one vote. There are no shares with multiple voting rights, preferential voting rights (golden shares) or maximum voting rights.

Invitation to the General Meeting, Postal Vote, Proxies:

• At least once a year the shareholders’ General Meeting is to be convened by the Management Board giving details of the agenda. A quorum of shareholders is entitled to demand the convening of a General Meeting and the extension of the agenda. The convening of the meeting, as well as the reports and documents, including the Annual Report and the Postal Vote Forms, required by law for the General Meeting are to be published on the company’s internet site together with the agenda.
• The company shall send notification of the convening of the General Meeting together with the convention documents to all domestic and foreign financial services providers, shareholders and shareholders’ associations by electronic means if the approval requirements are fulfilled.
• The company shall facilitate the personal exercising of shareholders’ voting rights. The company shall also assist the shareholders in the use of postal votes and proxies. The Management Board shall arrange for the appointment of a representative to exercise shareholders’ voting rights in accordance with instructions; this representative should also be reachable during the General Meeting.
• The company should make it possible for shareholders to follow the General Meeting using modern communication media (e.g. Internet).

General Meeting:

• The Management Board submits to the General Meeting the Annual Financial Statements and the Consolidated Financial Statements. The General Meeting resolves on the appropriation of net income and the discharge of the acts of the Management Board and of the Supervisory Board and, as a rule, elects the shareholders’ representatives to the Supervisory Board and the auditors.
• When new shares are issued, shareholders, in principle, have pre-emptive rights corresponding to their share of the equity capital.
• Each shareholder is entitled to participate in the General Meeting, to take the floor on matters on the agenda and to submit materially relevant questions and proposals.
• The chair of the meeting provides for the expedient running of the General Meeting. In this, the chair should be guided by the fact that an ordinary general meeting is completed after 4 to 6 hours at the latest.

2. TRANSPARENCY:

• The Management Board must disclose insider information directly relating to the company without delay unless it is exempted from the disclosure requirement in an individual case.
• As soon as the company becomes aware of the fact that an individual acquires, exceeds or falls short of 3, 5, 10, 15, 20, 25, 30, 50 or 75% of the voting rights in the company by means of a purchase, sale or any other manner, the Management Board will disclose this fact without delay.
• The company shall use suitable communication media, such as the Internet, to inform shareholders and investors in a prompt and uniform manner.
• Beyond the statutory obligation to report and disclose dealings in shares of the company without delay, the ownership of shares in the company or related financial instruments by Management Board and Supervisory Board members shall be reported if these directly or indirectly exceed 1% of the shares issued by the company. If the entire holdings of all members of the Management Board and Supervisory Board exceed 1% of the shares issued by the company, these shall be reported separately according to Management Board and Supervisory Board.

3. REPORTING AND AUDIT OF THE ANNUAL FINANCIAL STATEMENTS:

REPORTING:

• Shareholders and third parties are mainly informed by the Consolidated Financial Statements. During the financial year they are additionally informed by means of a half-year financial report and, in the first and second halves, by interim reports or quarterly financial reports. The Consolidated Financial Statements and the Condensed Consolidated Financial Statements in the half-year financial report and the quarterly financial report are prepared under observance of internationally recognized accounting principles.
• The Corporate Governance Report shall contain information on stock option programmes and similar securities-based incentive systems of the company.
• Notes on the relationships with shareholders considered to be “related parties” pursuant to the applicable accounting regulations shall be provided in the Consolidated Financial Statements.

AUDIT OF ANNUAL FINANCIAL STATEMENTS:

• The Supervisory Board or, respectively, the Audit Committee shall obtain a statement from the proposed auditor stating whether, and where applicable, which business, financial, personal and other relationships exist between the auditor and its executive bodies and head auditors on the one hand, and the enterprise and the members of its executive bodies on the other hand, that could call its independence into question. This statement shall include the extent to which other services were performed for the enterprise in the past year, especially in the field of consultancy, or which are contracted for the following year.
• The Supervisory Board commissions the auditor to carry out the audit and concludes an agreement on the latter’s fee.
• The Supervisory Board shall arrange for the auditor to report without delay on all facts and events of importance for the tasks of the Supervisory Board which arise during the performance of the audit.
• The auditor takes part in the Supervisory Board’s deliberations on the Annual Financial Statements and Consolidated Financial Statements and reports on the essential results of its audit

CONCLUSION:

The Code aims at making the German Corporate Governance system transparent and understandable.As a rule the Code will be reviewed annually against the background of national and international developments and be adjusted, if necessary.