German Corporate Governance Code
The German Corporate Governance Code (abbreviated GCGC ) is a set of rules that especially recommendations and suggestions for listed companies for good corporate governance contains.
History of origin
The issue of appropriate corporate governance has grown in importance since the 1990s. The federal government has also dealt with it. The Control and Transparency Act (KonTraG) of 1998 was the first corporate governance law that many should follow ( TransPuG , UMAG , ARUG , VorstOG , VorstAG , etc.). In May 2000, due to the bankruptcy of Philipp Holzmann , the federal government set up a government commission on “Corporate Governance - Corporate Management - Corporate Control - Modernization of Stock Corporation Law” chaired by corporate and capital market lawyer Theodor Baums . Among other things, this commission recommended developing a “Code of Best Practice ” for German companies.
Development of the code by the government commission
For this purpose, the Federal Ministry of Justice established the “Government Commission on the German Corporate Governance Code” in September 2001 through the then Federal Minister of Justice Herta Däubler-Gmelin . It is a self-regulatory body for the economy. The Commission is financed by the private sector, it is completely independent in its decisions. The government cannot give them instructions on what should and should not be included in the code. There are no government or political representatives on the commission. Ulrich Seibert oversees the commission in the Federal Ministry of Justice . On February 26, 2002, the commission, under the leadership of Gerhard Cromme at the time, presented the Federal Government with the “German Corporate Governance Code” it had drawn up. The code and its subsequent changes are published in the electronic Federal Gazette. Only with and on the basis of this publication does the declaration requirement according to Stock Corporation Act apply to listed stock corporations. In this way, there is no political control of the content, but a legal control over the code changes by the Federal Ministry. The official first publication of the DCGK in the electronic Federal Gazette took place on August 30, 2002 ( eBAnz AT1 2002 B1 ).
Review and amendment of the code
The code is reviewed annually by the “Government Commission on the German Corporate Governance Code”. The Commission holds (at least) one plenary meeting each year at which it decides on any amendments to the Code. It aims to adopt significant changes only every two years so as not to overwhelm the economy. It has regularly adapted the DCGK since it was first published and thus reacted to current developments in the corporate governance discussion around the world and changes in legislation.
In 2009, the DCGK was adapted to the changes introduced by the Management Board Compensation Appropriateness Act ( VorstAG ) ( eBAnz AT79 2009 B1 ); there were also changes relating to the management board's obligation to the company's interests, compliance with diversity in the composition of the supervisory board, in particular the participation of women in supervisory boards, and the independence of remuneration consultants from the management board. Significant further changes were decided in 2010, which, among other things, deal with the participation of women in the supervisory board and management board more specifically and affect the professionalisation of the supervisory board ( eBAnz AT68 2010 B1 ).
In 2011 the Commission did not make any changes. In 2012 it planned to put the recommendation on the independence of supervisory board members in more concrete terms; for the first time, the commission gave all interested parties the opportunity to comment on draft amendments ( BAnz AT 06/15/2012 B1 ). The Commission has significantly revised its planned recommendations on independence on the basis of the lively discussion and the comments received. In May 2013, the commission decided to cut the code and also dealt with the remuneration of the Executive Board. The most important point is the recommendation to limit the Executive Board remuneration including its variable components upwards ( BAnz AT 06/10/2013 B3 ). On September 30, 2013, Manfred Gentz , former Daimler CFO, took over the chairmanship. At the same time, three industry representatives (Kremer, Faber, Mertin) joined as members. The back office support and financing of the commission, which was previously not formally regulated, is now guaranteed by the Deutsche Aktieninstitut (DAI), Frankfurt. In 2015, only marginal changes were made to the Supervisory Board, as well as some textual clarifications.
Rolf Nonnenmacher has been chairman of the government commission on the German Corporate Governance Code since March 2017 . He has been a member of the government commission since June 2016. Nonnenmacher is a member of the Supervisory Board and Chairman of the Audit Committee of Continental AG (since 2014), Covestro AG (since 2015) and ProSiebenSat.1 Media SE (since 2015). At the 2017 Code Conference, Nonnenmacher announced that the Commission would deal with the question of how the Code can be made even more relevant for companies and investors. The commission also deals with the issues of executive board remuneration and the independence of supervisory boards. In November 2018, the commission presented a draft of the new version of the German Corporate Governance Code, on which feedback will be collected by the end of January 2019 as part of a consultation phase.
Every year, the commission holds a so-called “Code Conference” in Berlin, at which the current status of corporate governance is discussed with around 175 business representatives, a contribution from the respective Federal Minister of Justice and well-known spokesmen (2016 including Günther Oettinger , Helmut Perlet , Friedrich Merz ) becomes.
The DCGK is intended to help make the rules for corporate management and supervision applicable in Germany understandable and transparent for both national and international investors. This is intended to strengthen trust in the management of German companies and thus in the German capital market . The Code takes into account the past - criticisms expressed on the German - especially from foreign investors corporate governance , including inadequate focus on shareholder interests, lack of transparency in corporate governance, lack of professionalism, diversity and independence of boards of directors . The aim is also to unify and standardize the measures that are part of good corporate governance.
Furthermore, the code aims to provide German companies with rules and values for good and responsible corporate management. Above all, this means that companies seek to achieve their corporate goals in a way that, in the long term, serves the company itself and the affected interest groups such as owners, lenders, customers and suppliers, society and citizens.
At the same time, investors and shareholders are to be provided with an assessment catalog for evaluating good corporate governance.
Content of the Code
The German Corporate Governance Code is divided into seven parts:
- Shareholders and general meeting
- Cooperation between the Board of Management and the Supervisory Board
- Supervisory board
- Accounting and auditing
In terms of content, the code contains three types of provisions, which differ in the degree of their binding force:
- Reproduction of essential legal regulations, mainly the AktG
- Recommendations ("should" regulations)
- Suggestions ("can" regulations)
Following the recommendations and suggestions is voluntary.
Rank in the hierarchy of norms
With the DCGK, German law has received a new type of “norms”, which is sometimes referred to as soft law . The term is misleading as the Code is not about “law” that requires parliamentary legitimation. There is no legal obligation to adhere to the DCGK. All that needs to be done is to deal with its regulations. Rather, they are ideas of "best practice". These recommendations can only be given and effective where the law leaves room for maneuver and has not already specified a mandatory regulation (but for example in the area of co-determination).
The Code largely repeats applicable law - wherever it speaks of “must” or “has”. To that extent it is only of informational nature. The Code also contains recommendations (where it uses a “should”). Any deviations from the recommendation must be justified and disclosed in the declaration of compliance (Section 161 AktG). It also contains suggestions (recognizable by the use of “should” and “may”), which can be deviated from without disclosure.
Declaration of Conformity
Board and Supervisory Board of a listed corporation must annually in accordance Stock Corporation Act make a statement to what extent they comply with the GCGC (AktG). This declaration is known as the declaration of compliance . The declaration must be made permanently available to shareholders and all other interested parties on the company's website. There are three types of declaration of conformity:
- It is declared that the code is accepted as a whole (so-called declaration of consent or takeover model)
- It is declared that the code as a whole is rejected (so-called declaration of rejection or rejection model)
- It is declared that only parts of the code are followed (so-called qualified declaration of deviation or selection solution )
Thus, following the principles has a direct effect on the external image of a company and its relationship with shareholders and ultimately the capital market.
The Munich Higher Regional Court has ruled that violations of the code can lead to the nullity of a resolution of the supervisory board or a decision of the general meeting if it has been declared that the code will be followed in the relevant point. If the management board or the supervisory board intend to bring about a resolution against the code, they must point out this change. This obligation to provide information is derived from the principle of the shareholders' protection of legitimate expectations. The Federal Court of Justice has recognized that resolutions on the discharge of the supervisory board or the management board can be challenged if the declaration of compliance alleged that conflicts of interest were dealt with in accordance with the code, but this was not actually carried out, and the omitted information was relevant for an objectively judging shareholder .
At times, criticism of the code was voiced, which mainly related to the following points:
- The code has outlived itself and the Commission should stop its work. With the measures taken in 2013 to safeguard the Commission in the long term, however, German industry made it clear that it does not hold this view.
- The code is too long, too detailed and is getting more extensive every year (annual rings). In 2013 and 2015, the Commission tried to make deletions.
- Furthermore, the code is too imprecise and does not reflect the current legal situation completely correctly.
- The code does not sufficiently take into account the differences between companies included in the DAX, MDAX and SDAX. The Commission recently expressly supported a culture of deviation, which means that a well-founded deviation from a recommendation does not mean bad corporate governance, but can make sense.
- The code and the commission are not adequately regulated by law and constitutionally legitimized. With the organizational connection to the DAI , only their financing is regulated.
Government Commission on the German Corporate Governance Code
The government commission on the German Corporate Governance Code includes (as of August 2018):
- Theodor Baums (Professor at the University of Frankfurt) - since June 2009
- Joachim Faber (Chairman of the Supervisory Board Deutsche Börse AG) - since September 2013
- Michael Guggemos (Management Spokesman of the Hans Böckler Foundation , Supervisory Board B. Braun Melsungen AG ) - since February 2016
- Margarete Haase (member of the Deutz AG Management Board until 2017, several supervisory boards) - since February 2016
- Thomas Kremer (Board Member Legal and Compliance, Deutsche Telekom AG) - since September 2013
- Claudia Kruse (APG Asset Management NV Amsterdam) - since March 2016
- Michael Mertin (CEO of Jenoptik AG until 2017, Supervisory Board member of the Ceram Tech Group) - since September 2013
- Klaus-Peter Naumann (spokesman for the IDW Board of Directors ) - since June 2015
- Rolf Nonnenmacher (former spokesman for the board of KPMG Germany, several members of the supervisory board) - since June 2016 (chairman)
- Wulf von Schimmelmann (until 2017 Chairman of the Supervisory Board Deutsche Post AG , Supervisory Board Thomson Reuters) - since February 2016
- Stefan Schulte (CEO Fraport AG , Supervisory Board Deutsche Post AG) - since January 2012
- Marc Tüngler ( General Manager of the German Protection Association for Securities Ownership, several supervisory boards) - since June 2015
- Daniela Weber-Rey (former Chief Governance Officer and Deputy Global Head Compliance Deutsche Bank AG , Supervisory Board HSBC Trinkaus & Burkhardt AG )
- Jens Wilhelm (Member of the Management Board of Union Asset Management Holding AG) - since March 2016
- Gerhard Cromme first chairman of the commission (then chairman of the supervisory board of ThyssenKrupp AG) - from the beginning until June 2008
- Klaus-Peter Müller (Chairman until September 30, 2013) (formerly Chairman of the Board of Commerzbank, today Chairman of the Supervisory Board of Commerzbank) - from July 2008 to September 2013
- Ann-Kristin Achleitner (Professor at the Technical University of Munich (TUM)) - January 2012 to June 2016
- Paul Achleitner (then CFO of Allianz AG, later Chairman of the Supervisory Board of Deutsche Bank AG) - from the beginning until June 2009
- Rolf E. Breuer (then Chairman of the Supervisory Board of Deutsche Bank AG ) - from the beginning until June 2008
- Hans-Friedrich Gelhausen (formerly Chairman of PricewaterhouseCoopers PwC ) - from the beginning until June 2015
- Dietmar Hexel (DGB Federal Executive) - June 2006 to June 2016
- Ulrich Hocker (President of the German Association for Protection of Securities Holdings) - from the beginning until June 2015
- Marcus Lutter (then professor at the University of Bonn) - from the beginning until June 2008
- Volker Potthoff (then member of the Management Board of Deutsche Börse AG) - from the beginning until June 2006
- Heinz Putzhammer (deceased, then a member of the executive board of the German Trade Union Confederation) - from the beginning until June 2006
- Peer M. Schatz (Qiagen CEO) - from the beginning until January 2012
- Wendelin Wiedeking (then Chairman of the Board of Management of Porsche AG) - from the beginning until July 2009
- Henning Kagermann (Supervisory Board, formerly SAP Executive Board) - resigned at the end of 2012
- Max Dietrich Kley (including supervisory board member BASF) - from the beginning until February 2013
- Axel von Werder (Professor at the TU Berlin) - from the beginning until January 2016
- Beatrice Weder di Mauro (Professor at Johannes Gutenberg University Mainz ) - 2011 to January 2016
- Christian Strenger (Supervisory Board DWS-Investment) - since its foundation - from the beginning until February 2016
- Manfred Gentz (until May 2012. Supervisory Board of Deutsche Börse) - member from 2006, 2013 to 2017 Chairman
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