As a board which is generally management body of companies or other private or public legal forms referred that the association of persons outside of court represents and out of court and is entrusted to the inside with the conduct of business. The legal term “board of directors” is used in the case of a stock corporation , a partnership limited by shares , an association and a cooperative . In most of the statutes of the institutions andCorporations under public law are also called their management bodies as the executive board.
Entrepreneurial freedom of action
The executive board is granted extensive management power in the company by law and case law . However, it depends on how this management power is structured in the various legal forms of the company. While the management board of AG, KGaA and association is not subject to any instructions from third parties ( (1 ) AktG ), the management of a GmbH is bound by the instructions of the shareholders ( (1) GmbHG ). All have in common is the power of representation to the outside, which covers all legal and other active and passive actions.
In association law , the board of directors is the legal representative body in accordance with German Civil Code (BGB) in private and non-legal associations. He represents the association in and out of court and has the position of a legal representative. As a result, his active and passive actions are identified with that of the association, actions or omissions of the board thus work directly for or against the association; this also applies to the board members / management at the AG, KGaA or GmbH.
In principle, the board of directors is to be given a broad scope of action in the management of the business, without which entrepreneurial activity is hardly conceivable. This scope for action can also include the conscious acceptance of business risks with the risk of misjudgments and misjudgments; a culpable breach of duty is only given if the board member violates the knowledge and experience principles recognized in this industry.
Even if there is an employment contract with the company, members of representative bodies are not employees within the meaning of (1) ArbGG . Therefore, they are excluded from the scope of most of the labor laws ( (1) No. 1 KSchG , (2) No. 1 BetrVG ). Irrespective of their substantive position, persons who are appointed to represent a legal person or a group of persons on the basis of the law, articles of association or partnership agreement are not considered employees. This fiction only applies to persons with legal power of representation. While the prevailing opinion and the Federal Court of Justice have consistently ruled that the status of a GmbH manager as an employee is generally denied, the Federal Labor Court takes the position that a GmbH manager can in any case be classified as an employee because he is exclusively bound by instructions.
In the case of board members, a distinction must be made between appointment as board member and the employment contract. While the act of appointment by the supervisory board ((4) AktG) establishes the executive board's power of representation, the employment contract is based on service contract law ( BGB). In the case of associations, the board of directors is appointed by the general assembly in accordance with German Civil Code ( BGB) ; the law here is based on the right to mandate board activities ( (3) of the BGB).
Members and distribution of tasks
An association board usually consists of the following people:
- The chairman - rarely also several chairmen with equal rights, see dual leadership - or spokesman . The chairman is also known as the chairman of the board or president and has a management function; the spokesman is also referred to as the board spokesman and only has a representative function within the entire board.
- His / her deputy
- The treasurer (often also "treasurer")
- Other members entitled to vote (often also called " assessors ")
- Other non-voting members (often also called " co-opted " or "permanent guests").
The chairman, his deputy and the treasurer usually form the executive board (often also called the “ presidium ”).
Most forms of organization can freely determine the allocation of responsibilities within the board. Larger companies divide the management tasks within the scope of a business distribution plan on the board of directors and appoint a chairman, while the other members act, for example, as heads of various corporate functions ( procurement , production , finance , human resources , sales ) or of divisions. If an AG has more than 3 million euros in share capital , the board of directors must be composed of at least two people, unless the articles of association regulate otherwise. If the board of directors consists of several people, then there is general management authority and general representation . When making the appointment, the power of representation (alone or in pairs) must be regulated. In large corporations (AG, KGaA, GmbH) with more than 2000 employees, according to the Codetermination Act, the board of directors (or the management of the GmbH) must also include a labor director who (at least) takes on the tasks of human resources and is a full board member. Management board members may be shareholders at the same time , but may not be members of the supervisory board at the same time ( AktG).
The board of directors is responsible for managing the company independently of instructions ( supervisory board , the general meeting and the rules of procedure ( (2) AktG). According to the rulings of the Federal Court of Justice, the board of directors is to be granted a wide margin of discretion in the decisions made on the basis of these obligations. If, on the other hand, the extreme limits of entrepreneurial freedom of choice are exceeded, which is to be drawn, there is a breach of company law obligations that is so serious that it simultaneously results in a breach of duty under Criminal Code ( breach of trust ). The liability of the board of directors or managing directors due to a violation of the obligation to file for insolvency ( (3) AktG, (2) GmbHG) presupposes a culpable violation, which does not exist if expert advice to the contrary has been obtained.(1) AktG) and has to exercise the care of a prudent and conscientious manager ( (1) AktG). In relation to the company, it is subject to the restrictions imposed by the articles of association, the
The management board has the duty to convene the ordinary general meeting, to observe the non-competition clause and to inform the supervisory board about the developments of the company. In addition, he is obliged to prepare the annual financial statements and the management report ( AktG, , , HGB ) and submit it to the Supervisory Board for review ( , AktG); the review is carried out by an auditor if necessary ( HGB).
In post reversals in fixed and current assets to "other revenue reserves " in order to subject these unrealized reversals to a voluntary distribution block . This prevents unrealized profits from being distributed to the shareholders and thus the company substance must be attacked because of the profit distribution.(2a) AktG, the board of directors of an AG or KGaA is granted the right to
Management board members are appointed for a maximum of five years, with re-appointment being possible ((1) AktG). The management board is accountable to the supervisory board ( AktG), so that the supervisory board is the legally appointed controlling body of the management board. However, this only applies to the AG and KGaA because, for example, in the case of the GmbH, a supervisory board as a statutory body is only mandatory under certain conditions, namely for reasons of employee participation or because of increased public protection interests.
Delegation in commercial and company law
Commercial and stock corporation law also knows the “top down” delegation of competencies. First of all, by law and / or the articles of association, the executive board alone is authorized to represent a company externally and to carry out all legal acts on behalf of the company within the framework of this representation ( attorney and power of attorney has created. Here one of the functions of representation , the division of labor , is legally expressed. These are graduated delegations of authority, because the board of directors may not delegate some significant legal acts to authorized signatories, and again some legal acts may only be carried out by authorized signatories, but not by authorized representatives. The tasks of the board of directors that cannot be delegated are the preparation and signing of the annual financial statements and management report ( , , , HGB, AktG), the convening and implementation of the general meeting ( (2) AktG), and the appointment of authorized signatories ( HGB), the acquisition of land (reverse conclusion from Paragraph 2 HGB), the registration of the company and power of attorney as well as the signature with the company to be deposited with the court ( , HGB) and the insolvency application ( (3) AktG). Authorized signatories, in turn, are authorized to encumber and sell real estate (with special power of attorney in with (2) of the German Commercial Code), to appoint authorized agents and to make other commercial register applications. The extensive remainder of the day-to-day business remains for the authorized representative, provided it is customary for this trade. For the encumbrance of real estate, entering into bill liabilities, taking out loans and conducting litigation, the authorized representative requires special authorization from the board of directors or authorized signatory ( (2) HGB).AktG). Given the large number of everyday transactions, this is not feasible organization, which is why the legislator delegation possibilities by
Law and case law have developed rules that establish personal liability for culpable misconduct on the part of the Executive Board. The wide room for maneuver granted to the Executive Board by the case law is only abandoned when the limits of the so-called “ Business Judgment Rule ” of (1) sentence 2 AktG are clearly exceeded. According to this, the board of directors may very well take an entrepreneurial risk as long as its actions are oriented towards the company's welfare and its behavior is based on careful determination of the basis for decision-making. Rather, the Board of Management must have deliberately ignored a recognizable risk in order to be held responsible.
In a claim for damages against a member of the board of directors in accordance with AktG, the board member against whom a claim is made must present and, if necessary, prove that he has fulfilled his duty of care or that he is not at fault. In contrast, the company only has to demonstrate and prove a possible breach of duty on the part of the board member, the occurrence and the amount of the damage incurred, as well as the causality between the actions of the board of directors and the damage. In this respect, the wording of (2) sentence 2 AktG does not differentiate between objective non-compliance (illegality) and subjective non-compliance (guilt). These rules of presentation and burden of proof also apply if the board member is accused of failing to take a certain measure in breach of duty. In the absence of their own expertise, a board member does not culpably breach duties if he obtains the advice of an independent, professionally qualified professional to clarify the pending questions, informs him properly about all circumstances relevant to the assessment and follows the advice after his own plausibility check.
The board of directors of an AG is liable for false ad-hoc announcements to investors if there is a temporal proximity between the share purchase and the false announcement. According to this judgment, affected investors even have a personal right to compensation (intentional immoral damage) against members of the board of directors of a listed company under certain circumstances against board members in the event of willful deception.
If, according to the statutes of a non-profit association, its board members exercise their board activities on a voluntary basis and the statutes do not expressly provide for the possibility of remuneration for the working time and manpower, the payments made to a board member as compensation for spent time and manpower are nevertheless contrary to the statutes. The relevant board member has therefore culpably violated his duties as board member by accepting the payments contrary to the statutes. According to negligence and willful misconduct ( BGB).BGB, the association is liable for damage caused by a member of the board or the entire board. A board of directors working free of charge is only liable for gross
Discharge of the board of directors means the approval of the management of the board of directors by the shareholders for the past financial year . This approves his administrative work and expresses confidence for the future. It is a declaration of intent by the organs, which does not require acceptance by the board.
Board members of other legal forms
Political parties in Germany are mostly organized as unregistered associations , so that association law applies here. The party board consists of at least a chairman, a treasurer responsible for financesand one other member. Depending on the statutes, there may be other board members, such as the general secretary or assessor .
"The articles of association must contain information about the: ... organs of the party and their power of representation, in which case a management organ, a general meeting and a supervisory organ must be provided, ..."
The management body here corresponds to a board of directors.
See Cooperative Society Act .
In Act on the establishment and operation of foundations (StiftBTG) it is determined that the management at the club foundations law.par. 3
Institutions and corporations under public law
In most of the statutes of the institutions and corporations, board members are also provided as management bodies. Their appointment, tasks, control and dismissal are regulated in the respective statutes.
Social security agencies
Social insurance agencies are organized as corporations under public law. Appointment, tasks, control and dismissal of the board of directors is regulated in the respective statutes or in special laws.
Chambers of Crafts
Chambers of crafts are also organized as corporations under public law. Here the board of directors is the honorary executive body elected by the general assembly . It consists of two thirds employers (master side) and one third of employees (journeymen side). The board of directors is the collective superior of the general manager .
Other forms of organization
- Local , company and guild health insurance funds : SGB IV
- Federal Employment Agency : SGB III
- Deutsche Bundesbank : BBankG
- Film Funding Agency: Film Funding Act (FFG) the
- the former German Federal Railroad according to the Federal Railways Act
Remuneration of board members in Germany
The income of a board member is subject to income tax. According to German income tax law, the board of directors of a stock corporation earns income from non-self-employed work ( EStG ; even if a board member is neither an employee in terms of labor or social law). It is therefore neither subject to trade nor sales tax; Social security contributions do not have to be paid.
The central regulation for the assessment of the remuneration of the executive board at AGs and KGaAs isAbs. 1 AktG. Accordingly, when determining the total remuneration of the individual members of the Board of Management (salary, profit sharing, expense allowances, insurance fees, commissions, incentive-based remuneration commitments such as stock options and fringe benefits of all kinds), the Supervisory Board must ensure that these are proportionate to the tasks and services of the Board member and the situation of the company and do not exceed the usual remuneration without special reasons. Sustainable corporate development must be taken into account, with variable remuneration components being based on a multi-year assessment. These regulations apply mutatis mutandis to retirement pensions, survivors' benefits and similar benefits.
The remuneration of board members of stock corporations and members of the management of large GmbHs has increased significantly in recent years. In an international comparison, the remuneration of board members in German companies continues to be average. A third of the board members earn more than € 350,000, a third receive between € 200,000 and € 350,000 and a further third earn less than € 200,000. Variable forms of remuneration ( bonuses or stock options ), which are only paid after certain company targets ( benchmarks ) have been achieved, are increasingly coming to the fore . Due to the performance-based component, the remuneration of the Executive Board varies from year to year. According to a study by DSW , the total remuneration of the CEOs of DAX companies in 2010 was between € 617,000 and € 9.3 million.
The compensation reports of listed stock corporations have been published in the compensation register on the Internet since 2006 .
Management board remuneration according to the law on the appropriateness of management board remuneration
After the remuneration of managers came under public criticism, the Bundestag passed the Act on the Appropriateness of Executive Board Remuneration (VorstAG) on June 18, 2009 . The aim is to provide the supervisory board with rules with the aim of increasing transparency and control, and of aligning the remuneration no longer with short-term success parameters, but with sustainable corporate success. The following regulations are made therein:
- The remuneration system should be geared towards sustainable corporate success. Stock options should be redeemed after four years at the earliest.
- The entire supervisory board must decide on the remuneration of the executive board. The supervisory boards are liable for inappropriate salaries. Reductions in the event of a deterioration in the economic situation are possible.
- Former members of the board of directors can only switch to the supervisory board after two years, unless the election is made on the proposal of shareholders with more than 25% of the vote.
- Compensation and pension benefits need to be set out in more detail.
Management board remuneration according to the Corporate Governance Code
According to the Corporate Governance Code for good corporate governance , remuneration should be performance-related and contain fixed and variable components. The severance payment should not amount to more than two years of remuneration, including fringe benefits, if a member of the Management Board ends his or her position without good cause (severance payment cap). If a company is bought up and the board activity ends for this reason (change of control), the severance payment should not be more than 150% of the severance payment cap (i.e. three annual salaries). The remuneration of the Board of Management should be disclosed in an annual remuneration report with the name given.
The code is not compulsory for companies, it is a recommendation. However, stock corporations are obliged to publish an annual declaration of conformity in which they indicate where they deviate from the code. Since the recommendation on executive board remuneration was rarely followed, the legislature passed the Executive Board Remuneration Disclosure Act (VorStOG) shortly before the early 2005 Bundestag election, which came into force on August 11, 2005. The law makes disclosure the rule, but also allows the exception: if the shareholders decide on confidentiality with a 3/4 majority at the general meeting, the remuneration of the management board does not have to be disclosed.
Regulation at credit institutions
Credit institutions are the only industry in the world whose board members and board members are subject to a statutory upper salary limit. Since October 2008, it has been regulated in Germany at least in the form of the target provision of No. 4 FMStFG for credit institutions - which make use of stabilization measures in the form of state capital aid ( FMStFG) - that the remuneration of their board members and managers is reasonable is to be limited. In No. 4a FMStFV, the irrefutable presumption is assumed that "a monetary remuneration that exceeds 500,000 euros per year is generally considered inappropriate" for board members and managers. In doing so, work must be carried out to ensure that the remuneration of the executive bodies is reduced within the framework of civil law options, taking into account (2) AktG. The reference to this provision under stock corporation law makes it more difficult to enforce the income limit. According to this, there must have been such a significant deterioration in the company's circumstances that the continued granting of executive board remuneration would be “injustice for the company”. In this context, it still needs to be examined to what extent such upper remuneration limits can intervene in the current employment contracts of the bank's board members.
Determination of executive board remuneration in the supervisory board
In the case of corporations, the supervisory board determines the remuneration and other working conditions (stock options, pension commitments, fringe benefits, non-compete obligations after leaving the company, severance payments) of the members of the management board (AG, KGaA) and members of the management (GmbH). A special committee of the supervisory board, often called the personnel committee, was usually formed for this purpose. This committee was established by resolution of the Supervisory Board or was provided for in the Supervisory Board's rules of procedure. The personnel committee was not infrequently a decision-making committee, the results of which were only reported to the supervisory board. In 2009, the Act on the Appropriateness of Executive Board Remuneration stipulated that Executive Board salaries must in future be determined by the entire Supervisory Board and not just by a sub-committee.
Share of women on executive boards
The proportion of women on executive boards in the 30 largest DAX companies was 7.8% in June 2013. In previous years the proportion was lower.
- General Assembly
- Glass ceiling
- Supervisory board
- Labor Director
- Board of Directors
- Board of Directors
- European society
- Chief officer
- List of studies and scientific articles on the topic of women in management positions on the website of the German Association of Women Lawyers
- Matthias M. Pitkowitz : Practical Guide to Management and Supervisory Board Liability , Munich 2014, ISBN 978-3-406-66149-5 .
- Günter Schaub : Arbeitsrechts-Handbuch , 15th edition, Munich 2013, ISBN 978-3-406-64572-3 (on position as an organ and conditions of employment of board members)
- Johannes Semler / Martin Peltzer / Dietmar Kubis : Work manual for board members , 2nd edition, Munich 2014, ISBN 978-3-8006-4526-8 .
- Andreas Hoger : Continuation and termination of the legal status of directors as part of the corporate body when the legal form is changed under the UmwG , ZGR 2008, pp. 868–890.
- Martin Winarzki : State Interventions in Private Sector Remuneration Policy Against the Background of Current Capital Market Legislation , 1st edition, Hamburg 2011, ISBN 978-3-8300-5501-3 (deals with, among other things, the regulations for assessment in the German Stock Corporation Act and the German Corporate Governance Code the management board remuneration)
- Management boards of controlled companies are an exception , where the independent management of the management board in accordance with AktG is replaced by externally determined management of the controlling company ( (1) AktG)
- Kurt H. Johannsen / Wilhelm Kregel / Gerda Krüger-Nieland / Henning Piper: The Civil Code with special consideration of the jurisprudence of the Reichsgericht and the Federal Supreme Court / §§ 1–240 , Commentary: Vol. 1, 1988, p. 42 ff.
- BGHZ 20, 119, 125.
- BGHZ 135, 244, 253
- BGH, judgment of December 3, 2001, Az. II ZR 308/99, full text .
- BGH ZIP 1981, 367.
- BAG , decision of August 31, 1998, Az. 5 AZB 21/98.
- BGH NJW 1997, 1926
- BGH, judgment of May 14, 2007, Az. II ZR 48/06, full text .
- Wolfgang B. Schünemann: Private Economic Law: Basic Legal Knowledge for Economists , 2002, p. 95 f.
- Holger Fleischer, in: Gerald Spindler / Eberhard Stilz, AktG, § 93 margin no. 209
- BGHZ 152, 280, 284
- Holger Fleischer, in: Gerald Spindler / Eberhard Stilz, AktG, § 93 margin no. 214.
- BGHZ 152, 280, 284 f.
- BGH ZIP 2007, 1265, 1266 f.
- BGH NJW 2004, 2664
- BGH, judgment of December 3, 2007, Az .: II ZR 22/07.
- Consolidated federal law: Entire legal provision for the Political Parties Act 2012, version of 14.07.2017 Federal Act on the Financing of Political Parties (Political Parties Act 2012 - PartG)
- Marlies Zerban: Tax treatment of board members of a stock corporation ( Memento from December 26, 2010 in the Internet Archive )
- Andreas Berger: Management Board Compensation: The Compensation Problem as a Logical Consequence of the Current Company Law and the Consequences for the Design of the Regulations , 2013.
- The figures are based on a ddp report dated May 5, 2006, which referred to a study by the management consultancy Kienbaum Consultants International .
- DSW - Study on the remuneration of board members in the DAX and MDAX companies in the 2010 financial year. (PDF; 401 kB) p. 5 , archived from the original on May 24, 2012 ; Retrieved March 9, 2012 .
- Federal Law Gazette I p. 2509 ) of July 31, 2009 (
- Appropriate executive board salaries Federal Ministry of Finance, July 17, 2009, accessed on May 23, 2013.
- Management Board Compensation Disclosure Act ( Memento from June 11, 2007 in the Internet Archive )
- Women with board positions are still rare , Frankfurter Rundschau, January 16, 2013, accessed on June 13, 2013.