OMV Aktiengesellschaft Statement of OMV Aktiengesellschaft on the Green Paper of the European Commission on the European Corporate Governance Framework Ladies and Gentlemen! OMV Aktiengesellschaft appreciates the initiative of the European Commission around the European Corporate Governance framework and we herewith gladly take the opportunity to comment on selected questions posed in the Green Paper as follows: Initially, we would like to point out that OMV Aktiengesellschaft as a publicly listed joint stock corporation is subject to various relevant legal provisions and the self-regulation imposed by the Austrian Code of Corporate Governance. Thus, the density of rules and regulations on corporate governance matters is already very high. Also, as a preliminary remark, we would like to draw the attention to the fact that Austrian joint stock corporations (and limited liability companies) are governed by a two-tier system which foresees a strict separation of responsibilities of the operational management (Executive Board) and its supervision by the Supervisory Board. Some of the questions in the Green Paper are more tailored to the one-tier system. In our answers, we will aim to point out where the two-tier system requests different answers or already provides appropriate solutions. Question 1: Should EU corporate governance measures take into account the size of listed companies? How? Should a differentiated and proportionate regime for small and medium-sized listed companies be established? If so, are there any appropriate definitions or thresholds? If so, please suggest ways of adapting them for SMEs where appropriate when answering the questions below. Question 2: Should any corporate governance measures be taken at EU level for unlisted companies? Should the EU focus on promoting development and application of voluntary codes for non-listed companies? We are of the opinion that a uniform Corporate Governance framework for all types of companies will serve its purposes best. The Austrian Code of Corporate Governance foresees also applicability for nonlisted and small or medium-sized companies. Here, the Comply-or-Explain -principle grants sufficient flexibility to make the appropriate differentiations (depending on size, listing etc of the company) in this regard. Question 3: Should the EU seek to ensure that the functions and duties of the chairperson of the board of directors and the chief executive officer are clearly divided? Yes, a clear distinction between the functions and duties of the chairperson of the board of directors and the chief executive officer is very important. In the Austrian two-tier system this separation is basic legal principle which is very well-established and proves successful in practice. Question 4: Should recruitment policies be more specific about the profile of directors, including the chairman, to ensure that they have the right skills and that the board is suitably diverse? If so, how could that be best achieved and at what level of governance, i.e. at national, EU or international level?
Question 5: Should listed companies be required to disclose whether they have a diversity policy and, if so, describe its objectives and main content and regularly report on progress? Question 6: Should listed companies be required to ensure a better gender balance on boards? If so,how? In OMV s view, measures which aim to promote the professionalism of the board are of general importance. Since the composition of the board has to suit the company s business, we believe that the company itself should be in a position to set the profiles and requirements for its board functions. These considerations may take into account factors like diversity, professional background, geographical scope of the company and the like. OMV attaches particular importance to the increase of the number of women in its Top - Management. However, we believe that mandatory legal provisions on the composition will not be an appropriate instrument here. Question 7: Do you believe there should be a measure at EU level limiting the number of mandates a nonexecutive director may hold? If so, how should it be formulated? We believe that the devotion of sufficient time is of utmost importance for the proper performance of the board. Thus, limiting the number of mandates is a way to help ensure that non-executive directors devote sufficient time to monitoring and supervising their particular companies. Austrian corporate law and the Austrian Code of Corporate Governance already contain detailed rules which provide for limits of such mandates depending on the whether the company is publicly listed or controlled and the like. An amendment of the Austrian Code of Corporate Governance on the provisions dealing with the mandate limits is currently under discussion. OMV prefers a flexible solution on the basis of the Comply-or-Explain -principle, further legislative measures at EU level are not required. Question 8: Should listed companies be encouraged to conduct an external evaluation regularly (e.g. every three years)? If so, how could this be done? An external evaluation every three years may be an appropriate instrument for some companies. However, it should be in the company s discretion to decide on the best way for its evaluation. Thus, a respective provision in the national corporate governance codes as a Recommendation -rule may be considered. Question 9: Should disclosure of remuneration policy, the annual remuneration report (a report on how the remuneration policy was implemented in the past year) and individual remuneration of executive and non-executive directors be mandatory? For publicly-listed companies the Austrian Code of Corporate Governance already foresees the publication of the individual remuneration of board members. Also, the annual general meeting resolves on the remuneration of the supervisory board members which as a result is then public knowledge. We believe that these provisions are sufficient. Question 10: Should it be mandatory to put the remuneration policy and the remuneration report to a vote by shareholders? Under Austrian corporate law, the remuneration of the supervisory board members is voted on by the annual general meeting anyhow. Remuneration issues for the executive board are dealt with by the
remuneration committee of the supervisory board or the supervisory board respectively. The annual general meeting resolves on the discharge of both executive and non-executive board members which may also cover the say-on-pay -issue indirectly. Question 11: Do you agree that the board should approve and take responsibility for the company s risk appetite and report it meaningfully to shareholders? Should these disclosure arrangements also include relevant key societal risks? Question 12: Do you agree that the board should ensure that the company s risk management arrangements are effective and commensurate with the company s risk profile?? Pursuant to Sec 92 of the Austrian Stock Corporation Act, the Audit Committee of the Supervisory Board has to monitor the effectiveness of the risk management system. Pursuant to Sec 243 of the Austrian Company Law the company has to describe the major financial and non-financial risks and uncertainties to which the company is exposed as well as the major criterias of the internal control and risk management system in the group annual report. Pursuant to the Austrian Code of Corporate Governance, the company shall describe the main risk management instruments used with respect to non-financial risks. In addition, the auditor shall make an assessment of the effectiveness of the company s risk management and shall report the findings to the management board. This report is also presented to the supervisory board. These provisions result in a very helpful resource of information for investors and stakeholders. Thus, no further legislative action is required fro our point of view. Question 13: Please point to any existing EU legal rules which, in your view, may contribute to inappropriate short-termism among investors and suggest how these rules could be changed to prevent such behaviour. Question 14: Are there measures to be taken, and if so, which ones, as regards the incentive structures for and performance evaluation of asset managers managing long-term institutional investors portfolios? Question 15: Should EU law promote more effective monitoring of asset managers by institutional investors with regard to strategies, costs, trading and the extent to which asset managers engage with the investee companies? If so, how? Question 16: Should EU rules require a certain independence of the asset managers governing body, for example from its parent company, or are other (legislative) measures needed to enhance disclosure and management of conflicts of interest? We did not encounter any such EU legal rules. We do not see the need for any legislative initiative here. Question 17: What would be the best way for the EU to facilitate shareholder cooperation? Up to now, OMV has not yet been approached by shareholders requesting OMV to facilitate cooperation amongst shareholders. Thus, we do not see a need for an initiative here. We do, however, offer extensive support to facilitate shareholder voting (proxy voting, publication of resolution proposals etc) Question 18: Should EU law require proxy advisors to be more transparent, e.g. about their analytical methods, conflicts of interest and their policy for managing them and/or whether they apply a code of conduct? If so, how can this best be achieved? Greater transparency in the above-mentioned aspects would be highly appreciated and would also help issuers to better react to the information needs of the shareholders. A respective directive should be considered to ensure a uniform applicability of these rules.
Question 19: Do you believe that other (legislative) measures are necessary, e.g. restrictions on the ability of proxy advisors to provide consulting services to investee companies? A clear separation between these service areas would be helpful. Question 20: Do you see a need for a technical and/or legal European mechanism to help issuers identify their shareholders in order to facilitate dialogue on corporate governance issues? If so, do you believe this would also benefit cooperation between investors? Please provide details (e.g. objective(s) pursued, preferred instrument, frequency, level of detail and cost allocation). The dialogue on corporate governance issues with our shareholders is being conducted via our homepage or at the annual general meeting. We consider these means of communication currently in addition to those used for investor relations work as being adequate. Question 21: Do you think that minority shareholders need additional rights to represent their interests effectively in companies with controlling or dominant shareholders? We are of the opinion that minority shareholders are adequately protected by the extensive catalogue of minority shareholder rights under the Austrian Stock Corporation Act. Question 22: Do you think that minority shareholders need more protection against related partytransactions? If so, what measures could be taken? We believe that adequate protection is guaranteed by the Austrian legal system. Question 23: Are there measures to be taken, and is so, which ones, to promote at EU level employee share ownership? From a corporate law perspective, the legal framework is appropriate. To promote employee share ownership program in international companies a harmonization initiative in tax legislation may be considered. Question 24: Do you agree that companies departing from the recommendations of corporate governance codes should be required to provide detailed explanations for such departures and describe the alternative solutions adopted? Detailed explanations of departures from the recommendations of corporate governance codes are important. The description of alternative solutions may not always be feasible. The rules of the Austrian Code of Corporate Governance are adequate in this regard. Question 25: Do you agree that monitoring bodies should be authorised to check the informative quality of the explanations in the corporate governance statements and require companies to complete the explanations where necessary? If yes, what exactly should be their role? The Austrian Code of Corporate Governance foresees that the company shall have its compliance with the code evaluated periodically, but at least every three years, by
an external institution and have this report published. OMV conducts this exercise on a yearly basis. This is an effective way of evaluation in the system of self-regulation. Thus, we do not see the necessity to authorise the monitoring bodies in this regard.