The Corporate Governance Review: Germany
Overview of governance regime
Germany has one of the most solid corporate governance systems in the world owing to its well-balanced control mechanisms, capital preservation and market transparency rules as well as equal opportunities for women and men.
Just as it has affected almost all other areas of life and business activity in 2020, the covid-19 pandemic has also left its mark on the German corporate governance framework. As in many other countries, Germany has enacted laws to mitigate the consequences of the pandemic. Measures taken include, among others, the ability of companies to hold virtual general meetings. Many companies listed on the DAX and TecDAX stock indexes successfully made use of this new feature of German corporate law.
The German stock corporation is the common legal form among listed companies. Its corporate governance regime is determined by the following statutory provisions and non-binding best practice rules:
- the Stock Corporation Act, which sets out the (largely mandatory) framework for the organisation of a stock corporation as well as the rights and duties of the corporate bodies, the management board, the supervisory board and shareholders' meeting, as well as the shareholders;
- the EU Market Abuse Regulation (MAR), which governs market abuse and market manipulation, disclosure of non-public information and directors' dealings;
- the Securities Trading Act, containing provisions on the enforcement of violations of the MAR under German law;
- the Securities Acquisition and Takeover Act, which provides for rules on mandatory and voluntary takeover offers and defensive measures;
- the Co-Determination Act and the One-Third Participation Act, granting employees co-determination rights at the supervisory board level;
- the Commercial Code, which stipulates the general accounting rules for German companies; and
- non-binding guidelines on non-financial reporting, which were published by the European Commission in 2017 and last updated on 18 June 2019.
The German Corporate Governance Code is a collection of best practice rules and non-binding recommendations for the corporate governance of stock corporations, which has a growing influence on how corporate governance is practised in Germany.
Although the rules and recommendations set out in the Corporate Governance Code are not legally binding, a company must explain the extent and the reasons for non-compliance (the comply or explain principle). On 20 March 2020, the new Corporate Governance Code came into effect. In addition to a few changes in content, the Code has been revised with the aim of making it clearer and more easy to understand.
i Board structure and practices
Mandatory two-tier structure
The two-tiered board structure of German stock corporations requires a management board and a supervisory board.
Composition of the management board
The management board must consist of natural persons who are appointed by the supervisory board. The Corporate Governance Code requires that, when appointing management board members, the supervisory board must pay attention to diversity and shall, in particular, aim for an appropriate representation of women on the management board.
Members of the management board may not be appointed for a period exceeding five years. For first-time appointments, the Corporate Governance Code recommends that members of the management board should not be appointed for more than three years. The appointment may be renewed or the term of office may be extended, provided that the term of each renewal or extension does not exceed five years.
The supervisory board may dismiss members of the management board only for good cause. Good cause is, in particular, deemed to exist in the event of material breaches of duty; for example, if a management board member is not able to properly fulfil his or her duties (e.g., owing to long-term illness or a lack of required skills or knowledge) or when the general meeting has adopted a vote of no confidence and provided that the vote has not been adopted for apparently inappropriate reasons.
Composition of the supervisory board
The supervisory board must consist of at least three members, who are generally elected by the shareholders' meeting. The maximum number of supervisory board members permitted by law increases depending on the amount of the stock corporation's registered share capital. In any event, the total number of supervisory board members must be divisible by three.
When a stock corporation generally has more than 500 employees, one-third of the supervisory board members must be employee representatives. In companies with more than 2,000 employees, half of the supervisory board members must be employee representatives. At least 30 per cent of the supervisory board members of listed companies with more than 2,000 employees must be women. In addition, companies with more than 500 employees must adopt certain target ratios regarding the representation of female members on their supervisory and management boards, and in their senior management.
According to the Corporate Governance Code, the supervisory board should be composed in such a way that its members jointly have the knowledge, ability and experience to properly carry out its tasks and shall include an adequate number of independent members.
Supervisory board members are considered to be independent from the company and its management board if they have no personal or business relationship with the company or its management board that may cause a substantial – and not merely temporary – conflict of interest. More than half of the shareholder representatives shall be independent from the company and the management board. The Corporate Governance Code defines a supervisory board member as independent from the controlling shareholder, if he, she or a close family member is neither a controlling shareholder nor a member of the executive governing body of the controlling shareholder and does not have a personal or business relationship with the controlling shareholder that may cause a substantial conflict of interest.
In practice, the supervisory board members are appointed for a period of five years; renewed appointments are permissible.
ii Legal responsibilities and representation
The management board is responsible for managing the business of the stock corporation and legally represents the corporation in relation to third parties. Under the statutory concept, all members of the management board manage and represent the corporation jointly. However, in practice, the rule is that the corporation is represented by each member of the management board acting individually or by two members of the management board acting jointly.
In managing the business of the corporation, the members of the management board must apply the care of a prudent and diligent businessperson. According to the duty of loyalty, each management board member is obliged to give the stock corporation's interest priority over their personal interests. Failure by a management board member to meet these duties may lead to personal civil law liability for damages of the company.
A member of the management board cannot be held personally liable if, in making an entrepreneurial decision, he or she had adequate information and believed they were acting in the best interests of the stock corporation. This business judgement rule applies in the context of decisions that are not predetermined by the law, the articles of association or resolutions of the shareholders' meeting. The management board is considered to have had adequate information for making its decision if it has consulted all sources of factual and legal information reasonably available to it in the specific situation and, on that basis, has weighed the advantages and disadvantages of its decision against each other. However, it is not required that all conceivable information is obtained and every conceivable effect is quantified before making the decision.
The management board is subject to a duty of legality. This means that the management board may not itself commit, and may not order third parties to commit on behalf of the company, any violations of the law. In an unclear legal situation, the board members may also rely on the advice of a third-party expert. The members of the management board may rely on the third party expert's advice if (1) they have provided the expert with the necessary documents and a comprehensive description of the facts to be examined, (2) the expert is independent and professionally qualified to advise on the issue, and (3) they carry out a careful plausibility check of the advice provided by the expert.
The management board must ensure that all employees of the company, when acting within the scope of their operational activities, act in compliance with the law. This presumes that the management board must establish an appropriate system of organisation and control to prevent violations of law from within the company.
The management board is obliged to manage the stock corporation independently. It is not subject to instructions by the supervisory board or the general meeting. However, the shareholders' prior consent is required for transactions of outstanding importance, such as selling the most valuable parts of the company, or if by-laws of the management board provide for the shareholders' consent.
Apart from the foregoing, material transactions with related parties are subject to prior approval of the supervisory board or, if the supervisory board refuses to grant its approval, by the general meeting. Whether a transaction is deemed to be material is determined by a number of aspects, such as the influence that the information about the transaction may have on the economic decisions of shareholders or the risks associated with the transaction. A transaction constitutes a material related-party transaction if its economic value is at least 1.5 per cent of the total of the company's fixed and current assets. No approval is required for transactions that are concluded in the ordinary course of business and on customary market terms, or for transactions with directly or indirectly wholly owned subsidiaries. Companies must announce related-party transactions publicly at the latest when the transaction is concluded, which is when the transaction documents are signed.
The supervisory board is responsible for supervising and controlling the management board. To this end, the supervisory board is entitled to inspect the corporation's books and records and may, at any time, request the management board to report on the corporation's affairs.
Like members of the management board, members of the supervisory board must act in the best interests of the stock corporation and must demonstrate the care of a prudent and diligent businessperson. They are obliged to keep confidential any non-public information that they receive in their capacity as supervisory board members. One of the notable responsibilities of the supervisory board is enforcing damage claims by the stock corporation against members of the management board. In particular in the wake of the global financial and economic crisis of 2008, this has led to a significant increase in the number of lawsuits brought by corporations against former members of management boards.
The supervisory board's responsibility to supervise the management imposes a duty to avert actions by the management that may be detrimental to the corporation and that do not fall within the ambit of the business judgement rule. A supervisory board member may even be subject to criminal liability if, by consenting to certain transactions, the supervisory board member allows behaviour of the management that is not covered by the business judgement rule.
iii Delegation of board responsibilities
All members of the management board manage the stock corporation collectively and are jointly responsible for their actions.
In practice, responsibility for the management of certain business divisions or certain functions (e.g., finances, accounting, controlling, human resources, tax, legal, compliance) is delegated to individual members of the management board. Each management board member is primarily responsible for her or his delegated tasks but the other board members still monitor and control the performance of other members within their divisions. As a general rule, it is deemed to be sufficient to carefully, continuously and appropriately observe developments in the delegated divisions or functions and the performance of other management board members' duties.
iv Roles of chair of management board and chair of supervisory board
If the management board consists of more than one person, the supervisory board may appoint one of them as chair. The chair is responsible for administrative tasks relating to the work of the management board, such as preparing and chairing meetings and keeping minutes, and for coordinating and supervising the work of the management board. He or she typically is in charge of liaising with the supervisory board and represents the management board in public, and thus has a prominent position among the other members of the management board. The manner in which many chairs of management boards discharge these responsibilities in practice has given rise to the perception that the position is comparable to that of the chief executive officer of a US corporation. However, from a legal perspective, this is not the case. In particular, the chair has no right to give instructions to other management board members and is not entitled to decide matters against a majority of the other members of the management board.
The members of the supervisory board must elect a chair and a deputy chair. The chair of the supervisory board is a largely administrative role that is not endowed with any particular powers. The chair calls, prepares and leads meetings of the supervisory board. Typically, the articles of incorporation provide that the chair of the supervisory board also chairs the general meeting.
v Compensation of members of the management board and the supervisory board
In accordance with the law implementing the EU Shareholder Rights Directive (SRD II)2 and the new German Corporate Governance Code, the compensation of each member of the management board (e.g., fixed salary, variable salary components and pensions) must be clear, comprehensible and reasonable in light of the responsibilities and individual performance of that management board member as well as the situation of the company. The supervisory board must determine the target total remuneration in the event that all agreed goals are achieved and the maximum amount that each management board member's remuneration shall not exceed. In addition, the share of long-term variable remuneration of members of the management board shall exceed the share of short-term variable remuneration also by taking into account the sustainable corporate development as well as social and ecological aspects.
The compensation of members of the management board is determined by the supervisory board, usually following a recommendation by a committee established for that purpose. Pursuant to the German law implementing SRD II, the general meeting must vote on the company's remuneration policy in the event of a material change but at least every four years. Since the two-tiered board structure in Germany still requires that the supervisory board determines the management board compensation, the vote of the general meeting has an advisory function and is non-binding only. The general meeting cannot change the management board's remuneration policy but it has the right to vote against the maximum remuneration of the management board (cap) as set by the supervisory board.
The compensation of the supervisory board is determined in the articles of incorporation or by the general meeting. Pursuant to the German law implementing SRD II, the general meeting is obliged to resolve on the supervisory board's compensation once every four years. As with the management board members' compensation, it must take into account the duties of the supervisory board member and the condition of the company. The Corporate Governance Code suggests that the remuneration of supervisory board members should be fixed. However, it may also comprise variable components based on the corporation's long-term performance.
Listed stock corporations must disclose the aggregate and individual remuneration granted to members of the management board and the supervisory board, respectively, in their financial statements. In addition, the German law implementing SRD II and the Corporate Governance Code require that the management board as well as the supervisory board prepare an annual remuneration report. The information in the remuneration report is extensive and includes a five-year comparison of a member's compensation, the company's earnings performance and employee compensation. The remuneration report must be formally reviewed by the auditor and made available to the public on the company's website.
The supervisory board is not required to but may form committees, in particular for the purpose of preparing its deliberations and supervising the implementation of its resolutions.
If the supervisory board is composed of both shareholders and employee representatives, the supervisory board must form a reconciliation committee composed of the chair of the supervisory board, his or her deputy and one member of the supervisory board elected by the shareholder and the employees, respectively.
The supervisory board may establish an audit committee to deal with matters relating to the preparation of the corporation's financial statements, the effectiveness of the internal audit and risk management systems. The audit committee is also responsible for monitoring the accounting process and the efficacy of the internal control system. The Corporate Governance Code recommends that the chairman of the audit committee should have specialist knowledge and expertise in the application of accounting principles and internal control processes.
The Corporate Governance Code further recommends forming a nomination committee that is composed exclusively of shareholder representatives and that is tasked with proposing suitable candidates that the supervisory board may recommend to the general meeting for election to the supervisory board.
vii Board and company practice in takeovers
In the event that a company becomes the target of a takeover offer, the management board and the supervisory board must publish a reasoned statement regarding the offer on the internet. The statement is intended to enable the shareholders to make an informed decision on the offer and must, in particular, contain the management board's and the supervisory board's assessment of the consideration offered by the bidder, the expected consequences of a successful takeover offer for the company, its employees, the employee representatives (i.e., the works council), the terms and conditions of employment and the company's production and other sites, the goals pursued by the bidder, and information about whether the members of the management board and the supervisory board intend to accept the offer.
i Regular reporting and disclosure requirements
Stock corporations must disclose their annual financial statements (consisting of the corporation's balance sheet and profit and loss statement as well as the notes thereto) by publishing them electronically in the German Federal Gazette. As well as the annual financial statements, the management reports of listed stock corporations and other companies must contain a corporate governance statement including:
- statements regarding compliance with the Corporate Governance Code;
- information regarding any practices and standards applied by the corporation in addition to statutory requirements, such as codes of conduct;
- information regarding the composition of boards and committees as well as the manner in which they conduct their affairs; and
- information about the concept of diversity addressing specific aspects such as age, gender, and educational or professional background.
As part of the management report, large capital market-oriented corporations and certain credit institutions and insurance companies are also obliged to submit a non-financial declaration. This includes information about the approach adopted by the company to improve environmental, employee and social issues, respect for human rights and the fight against corruption, and the results of the measures taken to date. If no particular approach is pursued for one of these matters, this is to be justified in line with the comply or explain principle.
Within the first three months of each financial year, the management board of a stock corporation on which another enterprise can exercise a dominating influence must prepare a report on the corporation's relations with affiliated companies.
Disclosure of inside information
As a general rule, any issuer of securities that are admitted or requested for admission to trading on an organised market or multilateral trading facility in Germany must disclose, without undue delay, any information directly relating to the issuer that is not publicly known, if the information could have a material effect on the market price of the relevant securities.
Disclosure of this information must be made in German in at least one mandatory stock exchange newspaper that is circulated nationwide or through a system for the electronic dissemination of information, as well as on the issuer's website. Prior to disclosure to the public, the issuer must inform (1) the management of each stock exchange on which the securities or derivatives thereof are traded and (2) the Federal Financial Supervisory Authority about the information.
An issuer may hold itself responsible for a decision to delay the disclosure of inside information if (1) disclosure is likely to prejudice the issuer's legitimate interests, for example during current contract negotiations concerning material assets of the company or in restructuring situations, (2) the delay is not likely to mislead the public, and (3) the issuer ensures the confidentiality of the inside information. Upon disclosure, the issuer must inform the Federal Financial Supervisory Authority about this and why disclosure was delayed.
ii Directors' dealings
Members of the management board and the supervisory board of an issuer, and all other senior executives with regular access to inside information, are obliged to notify both the issuer and the Federal Financial Supervisory Authority, within three business days, about transactions conducted on their own account relating to (1) shares or debt instruments of the issuer that are traded on the financial markets, or (2) financial instruments linked thereto (e.g., derivatives). The disclosure obligation also relates to transactions for the account of legal entities, trusts or persons closely associated with the issuer's board members or senior executives, such as spouses, registered partners or dependent children. Relevant transactions include purchase and sale, and the pledging and lending of the relevant financial instruments.
The disclosure obligation does not apply if the total value of all transactions conducted by a single person within a calendar year does not exceed €5,000.
The issuer is responsible for ensuring that information regarding the relevant transactions is published without delay, at the latest three days after the transaction, in media suitable for dissemination throughout the European Union. In addition, the issuer is required to submit the published information to the German company register.
iii Disclosure of shareholdings in listed companies
Any person whose shares in a company with its corporate seat in Germany reach, exceed or fall below the thresholds of 3, 5, 10, 15, 20, 25, 30, 50 or 75 per cent of the voting rights in the company is obliged to disclose this circumstance to the Federal Financial Supervisory Authority. This applies for shareholders who are admitted to trading on the organised market on a stock exchange of a Member State of the European Union. Furthermore, they have to disclose the issue to the company without undue delay, but in no event later than four trading days thereafter. The company must then pass on the information without undue delay, namely within three trading days, to 'a combination of media for Europe-wide dissemination' as well as to the German company register.
For the purpose of calculating the relevant threshold amounts, voting rights arising from shares held by a third party may be attributed to the person obliged to disclose the shareholding. Voting rights will be attributed, for example, if the third party is a subsidiary of the person obliged to disclose the shareholding, or if the person obliged to disclose the shareholding by other means has a controlling influence on the exercising of the voting rights arising from the shares. The same holds true for shares held by third parties who act in concert with the person obliged to disclose the shareholding.
All publicly listed companies and other German companies have adopted modern compliance programmes and created a compliance organisation that is headed by a chief compliance office or a member of the management board to whom responsibility for compliance has been delegated.
Nearly all compliance programmes emphasise the importance of the 'tone from the top' for a corporation's compliance culture, and measures are taken to ensure compliance manuals are distributed and employees are trained with respect to compliance-related issues. Many companies have established whistle-blowing hotlines, which employees can use to report misconduct anonymously (see Section VI for further details).
In addition, companies must disclose non-financial information that is deemed to be vital for a change towards a sustainable global economy by combining long-term profitability with social justice and environmental protection.
i Shareholder rights and powers
As a general rule, all shares in a German stock corporation provide for equal rights, including equal voting rights, rights to receive dividends and information rights.
Voting rights are usually exercised per share or in proportion to the par value of the shares. The Stock Corporation Act prohibits the creation of shares with multiple voting rights. With the approval of the general meeting, a stock corporation may issue non-voting preferred shares in a nominal amount of up to half of its registered share capital.
The shareholders of a stock corporation, unlike shareholders of German limited companies, have no direct influence on the management board. Their influence is limited to electing the members of the supervisory board, who in turn appoint and remove the members of the management board.
Since a shareholder representing a majority of the voting rights or the share capital of a corporation may de facto have a controlling influence on the stock corporation's management because of its ability to elect and dismiss the shareholder representatives on the corporation's supervisory board, a controlling shareholder must compensate any disadvantage suffered by the corporation as a result of any exercises by the controlling shareholder of its influence.
The controlling shareholder may legalise its influence on the stock corporation by concluding a domination agreement with the stock corporation. Once a domination agreement has been concluded, the Stock Corporation Act recognises the shareholder's right to give instructions to the management board. To become effective, the domination agreement must be approved by the corporation's general meeting with a supermajority of at least 75 per cent of the share capital represented at the meeting. The controlling shareholder is obliged to compensate any loss incurred by the controlled company during the term of the domination agreement and to acquire, at a minority shareholder's request, that shareholder's shares against adequate compensation.
Certain decisions are reserved for the shareholders' meeting by statutory law: This includes the appointment of members of the supervisory board, the appropriation of distributable profits, the appointment of the auditor, any amendment to the articles of association, measures to increase or reduce the share capital or obligations to transfer significant assets of the company.
In addition, the shareholders' meeting must approve management decisions that could fundamentally affect the shareholders' rights and economic position, such as the sale or the hive-down of a business division into a subsidiary if the division contributes a significant portion of the corporation's revenue. Apart from these exceptional cases, the management board can make business decisions autonomously without the shareholders' consent. For example, the management board can decide to delist the company from the stock exchange without the consent of the general meeting (see Section II.v. for further information about general meetings' votes on board compensation).
In response to the challenges posed by the covid-19 pandemic, Germany has enacted laws that provide for virtual general meetings and the ability to adopt shareholder resolutions without requiring the physical presence of the shareholders or their proxies at a meeting. The most significant deviation from the traditional in-person general meeting is that the obligation of the management board and the supervisory board to provide conscientious and diligent information about the affairs of the company in response to the shareholders' questions has been limited. In a virtual general meeting, the management board has discretion to decide which questions it wants to answer and may require questions to be submitted in advance of the general meeting.
Throughout the 2020 general meeting season, virtual general meetings have proven to have significant advantages for both companies and shareholders. Shareholder participation is possible from anywhere in the world. Virtual general meetings are also considered less costly to organise and participation requires shareholders to devote less time and effort. The widely shared expectation among corporate governance advisers is that hybrid meetings, which give shareholders the choice of physical or virtual participation, could become a model for the future.
ii Shareholder duties and responsibilities
All shareholders are subject to the duty of loyalty in relation to the company and other shareholders. In particular, shareholders are prohibited from causing harm to the company.
In principle, the duty of loyalty is defined by the articles of association and the company's purpose. However, in exceptional circumstances, a shareholder may even be obliged to exercise his or her voting rights in favour of a specific measure that is deemed to be necessary for the avoidance of the collapse of the company.
iii Shareholder activism
Germany has experienced several waves of shareholder activism. Owing to changes of the law and restrictive court decisions, the practice of 'greenmailing' companies through lawsuits by individual minority shareholders seeking to set aside shareholder resolutions or to delay corporate transactions is largely a thing of the past. Nowadays, activist shareholders are often hedge funds that seek to influence the strategy and the share price of a company even though they hold only a minority stake in the company. This is typically done through the exercise of minority rights. Often, these attempts are accompanied by aggressive publicity and media campaigns designed to put pressure on the company's management to adopt the measures proposed by the activist shareholder. Another means for activist minority shareholders to exercise a disproportionate influence on a company is through proxy fights. Foreign and institutional investors, in particular, increasingly follow the voting recommendations of proxy advisers. If an activist shareholder succeeds in persuading a proxy adviser to favour the measures proposed by the activist shareholder, this will result in a significant increase in the activist shareholder's factual voting power.
iv Takeover defences
Once a bidder has published its decision to make a takeover offer, the management board may no longer take any actions that could prevent the success of the offer. However, there are some statutory exceptions to this 'prohibition of frustrating action'. The management board remains entitled to solicit competing offers from third parties (white knights) and to take actions approved by the supervisory board. Moreover, the management board continues to be entitled to take all measures that are in the ordinary course of the company's business and not a subject of the takeover offer or that are intended to implement a business strategy on which the company has embarked before the publication of the takeover offer.
The management board may also take defensive measures that are authorised by the general meeting before the takeover offer was announced and approved by the supervisory board, including:
- purchasing shares equalling up to 10 per cent of the registered share capital;
- establishing increased majority requirements for shareholder votes;
- electing shareholder representatives to the supervisory board at different points in time to create a staggered board and at the same time increasing the majority requirements for their dismissal;
- selling important assets of the corporation; and
- acquiring a direct competitor of the bidder.
v Contact with shareholders
Each shareholder may request the management board to provide information regarding the affairs of the company. The shareholders' information right may only be exercised, however, during a shareholders' meeting and is limited to information which is reasonably required by the shareholders to appropriately assess the topics on the agenda of the shareholders' meeting. The management board may refuse to provide the requested information only for a limited number of reasons enumerated in the Stock Corporation Act, in particular if providing the information would, in the assessment of a reasonable businessman, be harmful to the company. To the extent the management board proactively communicates with shareholders, it must observe the principle of equal treatment of shareholders, and the rules regarding disclosure of inside information.
Corporations must identify their shareholders (know your shareholder). In particular, financial intermediaries must provide, at the request of the company, the information that is necessary to identify the shareholders, including names and contact details.
Although fostering investor relations and communication with (potential) investors and other stakeholders of the company generally falls within the remit of the management board, the supervisory board and, particularly, its chairman may, within certain boundaries, also communicate with the company's stakeholders. The Corporate Governance Code suggests that the chair of the supervisory board should be available – within reasonable limits – to discuss supervisory board-related issues with investors. The chair of the supervisory board, in particular, may also exchange views with political representatives and the press.
However, investor communication by the (chair of the) supervisory board is limited to issues that fall within the remit of the supervisory board. In particular, these do not include issues of corporate strategy and the management of the company, which are the sole responsibility of the management board.
i Digitalisation and other developments in company law
As in many other areas of life in general and business activity in particular, the covid-19 pandemic has driven developments in the use of technology that seemed impossible not even two years ago. Many of the changes to corporate law that were enacted to account for the effects of the pandemic will probably remain in force after the current crisis has ended. The positive experiences of the use of digital technologies, in particular for virtual general meetings, will almost certainly lead to permanent amendments of the Stock Corporation Act that will firmly establish digitalisation as an element of corporate law and corporate governance.
Further amendments to the corporate governance framework, including in the areas of accounting and auditing as well as supervision and enforcement by government authorities, will probably be enacted as a consequence of the scandal involving the payment services provider Wirecard.
At the EU level, the High Level Forum on Capital Markets Union has recommended a new revision of the SRD (this would be SRD III). The idea is to further facilitate the use of digital technologies, in particular to facilitate the exercise of voting rights and to make general meetings more efficient.
The EU company law package pursues similar goals. The two Directives amending Directive (EU) 2017/1132 that were adopted at the end of 2019 must be transposed into national law within two years. The EU company law package relates to digital tools and processes in company law and has the aim of improving the transnational mobility of companies. In 2020, further preparations for the implementation of the EU company law package were undertaken, for example a first draft Bill on topics such as the online formation of a company was introduced in the Federal Council (Bundesrat). The legislative process will proceed in 2021.
iii Protection for whistle-blowers
The Directive of the European Parliament and of the Council on the protection of persons reporting on breaches of Union law (2019/1937) became effective on 16 December 2019 and has to be implemented by EU Member States within two years. The main purposes of the Directive are to better protect whistle-blowers, and to improve law enforcement and the protection of the freedom of speech and freedom of information.
The Directive has a wide scope as it protects EU citizens and third country nationals as well as company employees and other persons related to a company, such as suppliers, interns and job applicants. It provides for rules that deal with whistle-blower reports of serious concerns regarding unlawful actions or abuses of law. The discussion about the implementation of the Whistle-blower Protection Directive has gained some momentum in Germany. For example, some German non-governmental organisations (NGOs) have written an open letter advocating for a more far-reaching implementation that goes beyond the EU requirements to achieve comprehensive protection for whistle-blowers.
iv German Corporate Sanctions Act
After controversial discussions in the press and by NGOs and scholars during the past year, the government has introduced the draft law of a Corporate Sanctions Act in Parliament (Bundestag).
The aim of the proposed law is to enhance enforcement against corporations for business-related crimes and higher penalties for companies, and to facilitate the conduct of internal investigations and setting incentives for establishing internal compliance programmes. In light of the global political trend of enhancing enforcement powers, the draft Corporate Sanctions Act is a piece of legislation that will have to be considered by listed and unlisted companies. At the time of writing, the law is expected to come into force in the first half of 2021.
1 Carsten van de Sande and Sven H Schneider are partners at Hengeler Mueller Partnerschaft von Rechtsanwälten mbB. The authors thank Conrad Ruppel, senior associate at Hengeler Mueller Partnerschaft von Rechtsanwälten mbB, for his contribution to this chapter.
2 Directive (EU) 2017/828 of the European Parliament and of the Council of 17 May 2017 amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement.