German Corporate Governance in International and European Context

Transcription

1 German Corporate Governance in International and European Context von Jean J. du Plessis, Bernhard Großfeld, Claus Luttermann, Ingo Saenger, Otto Sandrock 1. Auflage 2007 German Corporate Governance in International and European Context Plessis / Großfeld / Luttermann / et al. schnell und portofrei erhältlich bei beck-shop.de DIE FACHBUCHHANDLUNG Springer 2007 Verlag C.H. Beck im Internet: ISBN

2 Table of Contents Chapter 1 An Overview of German Business or Enterprise Law Jean du Plessis and Bernhard Großfeld 1.1 Introduction General Characteristics Various Types of Business Organisations Delineation...6 Chapter 2 An Overview of the Corporate Governance Debate in Germany Jean du Plessis and Ingo Saenger 2.1 Introduction History and Significance of the German Corporate Governance Debate Focus on the Supervisory Board Important Role and Recommendations for Improvement Initial Reaction The German Corporate Governance Code Overview Parts and Layout Some Noteworthy Provisions of the Code The Legal Nature of the Code Need for a European Corporate Governance Code Concluding Remarks...35

3 VIII Table of Contents Chapter 3 The General Meeting and the Management Board as Company Organs Jean du Plessis and Ingo Saenger 3.1 Introduction The General Meeting Function as a Corporate Organ Some Functions The Management Board Function as a Corporate Organ Appointment, Qualifications, Removal and Remuneration of Members Rights, Powers and Responsibilities Duties and Forms of Liability Concluding Remarks Chapter 4 The Supervisory Board as Company Organ Jean du Plessis and Ingo Saenger 4.1 Introduction Qualifications and Appointment of Supervisory Board Members Conditions for Qualifications Appointment Prerequisites Removal of Supervisory Board Members Remuneration of Supervisory Board Members Rights and Responsibilities of Supervisory Board Members Appointment and Termination of Management Board Members Determination of the Remuneration of Management Board Members Supervision Reporting to the General Meeting Instituting Action Against Members of the Management Board for a Breach of Their Duties General Duties and Forms of Liability

4 Table of Contents IX 4.7 The Supervisory Board as Integral Part of the German Two-Tier Board System Contrasting the One-Tier and Two-Tier Board Systems Concluding Remarks Chapter 5 The German System of Supervisory Codetermination by Employees Jean du Plessis and Otto Sandrock 5.1 Introduction Historical Development of Codetermination (Mitbestimmung) Overview Social Codetermination Supervisory Codetermination The Two-Tier Board System and Supervisory Codetermination Contrasted Perceptions Regarding Codetermination in Germany from a Historic Perspective Current Practical Perspectives on Codetermination General Concerns The Dependancy of the Management Board on the Employee Delegates on the Supervisory Board Some Recent Scandals Associated with Employee Representatives Serving on Supervisory Boards Remuneration of the Employee Representatives Serving on Supervisory Boards Recent Attempts to Modify the System of Codetermination Issues Related to Supervisory Codetermination Codetermination in the Management Board the Personnel Director Classification of Employees The Role of Trade Unions Concluding Remarks...143

5 X Table of Contents Chapter 6 The Impact of European Developments on German Codetermination Otto Sandrock and Jean du Plessis 6.1 Introduction Recent Decisions by the European Court of Justice (ECJ) and Their Impact on German Codetermination The Enforcement Under the Common Market Treaty of the Freedom of Settlement The Impact of These Decisions on the National Laws of the European Community Member States The Creation of the European Company (SE) and the Regulation of Its Codetermination Stormy History European Companies and Codetermination Specific Arrangements Cross-Border Mergers of Limited Companies The Sevic Decision by the European Court of Justice The Directive on Coross-Border Mergers of Limited Companies The European Commission Action Plan of May The Action Plan: Consequences Harmonisation versus Practical Realities Concluding Remarks Chapter 7 Accounting as the Documentary Proof of Good Corporate Governance Claus Luttermann 7.1 Handling the Invisible Accounting Law Accountability European Law and IAS/IFRS German and European Law (IAS/IFRS) Regulatory Interactions Corporate Governance Statement (Directive 2006/46/EC)

6 Table of Contents XI 7.3 Financial Statements: A True and Fair View International Focus and Comparative Law European Court of Justice IAS/IFRS, Company Law and Tax Law Rules of Accounting Expectation Gaps and Procedural Law Valuation Financing and the 'Numbers Game' The Legal Focus of Accounting Practice Consolidated Financial Statements Liability, International Taxation and Cash Pooling Auditing, Control and Sanctions About Watchdogs and Materiality Disclosure and Enforcement Liability and Sanctions Judicial Relief and International Court of Accounting Strategic Governance and Audit Committee Concluding Remarks Chapter 8 The Dominant Role of the German Banks and New Players in the German Financial Sector Jean du Plessis and Claus Luttermann 8.1 Introduction The Traditional Position Control Through the General Meeting Control Through the Supervisory Board Control over the Management Board International Influences The Wind of Change Controlling German Banks Concluding Remarks...212

7 XII Table of Contents Chapter 9 Corporate Governance in the EU, the OECD Principles of Corporate Governance and Corporate Governance in Selected Other Jurisdictions Jean du Plessis and Claus Luttermann 9.1 Introduction European Union (EU) Enhancing Corporate Governance Projects (IAS/IFRS Etc.) Future Priorities Regulatory Basics and Outlook OECD Principles of Corporate Governance Background to the OECD Principles of Corporate Governance Broad Aims and Application Parts and Layout Ensuring the Basis for an Effective Corporate Governance Framework Disclosure and Transparency United States Background to the Corporate Governance Debate in the United States The American Law Institute s Involvement in the Corporate Governance Debate United Kingdom Background to the Corporate Governance Debate in the United Kingdom The Cadbury Report and the Unfolding of the Concept of Corporate Governance in the United Kingdom The Greenbury Report (1995), the Hampel Report (1998), the Smith Report (2003) and the Higgs Report (2003) The UK Combined Code Australia Background to the Corporate Governance Debate in Australia The Bosch Reports The Hilmer Report

8 Table of Contents XIII The Virtues of Good Corporate Governance in Australia Between 1991 and The IFSA Blue Book The Australian Stock Exchange Ltd (ASX) Concluding Remarks Appendix English Translations of Some European Provisions for Purposes of Chapter About the Authors...275