The German Supervisory Board on Its Way to Professionalism
The paper shows how the efficiency of the German supervisory board has been significantly improved in the last decade. These legal changes made the supervisory board climb to a higher position of power. In particular, the supervisory board is now significantly involved in the decision‐making process on a company’s overall strategic concept and on management decisions of fundamental importance. This emphasizes the future‐oriented monitoring obligation of the supervisory board, which gained much more importance in the last decade. Furthermore, the new provisions increased the flow of information from the management board to the supervisory board, and they facilitated the monitoring efficiency of every single supervisory board member. In addition, several important changes improved the cooperation of supervisory board and auditors. The most recent changes strengthened the supervisory board’s responsibility with regard to internal control and risk management.
The vest majority of those changes in the German supervisory board system are very welcome. However, the current regime of German codetermination as well as the excessive size of the supervisory board has to be changed. Under the important developments on the European level, the time has come to act now in this direction. The advocated concept of codetermination by consensus provides a solid basis for more flexibility in the rigid German corporate governance system. It is also desirable to further limit the size of the supervisory board to no more than twelve members. Finally, the efficiency of the corporate governance system would be improved by allowing enterprises to choose between a one‐tier and a two‐tier board system.
The history of the German supervisory board1 is a history of its reformation.2 There is no doubt, however, that the last decade marks the heyday of reform endeavors with a
Dr. Jan Lieder, LL.M. (Harvard), Attorney‐at‐Law (New York) is Senior Research Assistant to Prof. Dr. Walter Bayer at Friedrich‐Schiller‐University Jena, Germany, jan.lieder@uni‐jena.de.
1 For an early English‐language source as to the German supervisory board and its role compared to the American unitary board system, see, Detlev F. Vagts, Reforming the “Modern“ Corporation: Perspectives from the German,