German Law Journal
[Vol. 11 No. 02
“5.1.1 The task of the Supervisory Board is to advise and supervise the Management Board in the management of the enterprise. It must be involved in decisions of fundamental importance to the enterprise.”
This explanation, as well as the subsequently detailed legal changes, shows that the supervisory board and the management board shall intensively interact in the German dual board system. As a result, this kind of involvement of the supervisory board in a company’s decision‐making process improves its efficiency of monitoring, because the supervisory board receives more and better monitoring‐related information and it is able to detect and prevent corporate malfeasance more quickly and more efficiently. As a further result of the supervisory board’s strengthened position of power, its members have become more sensitive and more conscious with regard to their monitoring duties.52
I. Individual Rights of Supervisory Board Members
In order to strengthen the sense of responsibility of each and every member of the supervisory board, all members are now entitled to request additional information from the management board that goes beyond the management board’s regular reporting duties (Section 90(3)). The new provision makes clear that every supervisory board member is responsible for having all information necessary to monitor the management board appropriately.53 In addition, Section 3.4 GCGC emphasizes that providing sufficient information to the supervisory board is the joint responsibility of both the management board and the supervisory board. A single supervisory board member is no longer able to excuse her lack of knowledge by referring to her inability to demand information from the management board on her own.54
Furthermore, under Section 110(2), every member of the supervisory board is now entitled to call for a meeting of the supervisory board. The new provision eliminated the objection that individual members are not able to do something on their own in order to detect and prevent corporate malfeasance.55 This individual right also strengthens the sense of responsibility of supervisory board members.
See generally, LIEDER (note 2), 556.
53 See, Eberhard Vetter, Die Verantwortung und Haftung des überstimmten Aufsichtsratsmitglieds, 57 DB 2623, 2625 (2004); Lutter (note 3), 775.
LIEDER (note 2), 565.
55 See, Begründung des Regierungsentwurfs eines Gesetzes zur weiteren Reform des Aktien‐ und Bilanzrechts, zu Transparenz und Publizität (Official Explanatory Statement), Bundestagsdrucksache 14/8769, 16 (2002); see also, Hans‐Christoph Ihrig & Jens Wagner, Die Reform geht weiter: Das Transparenz‐ und Publizitätsgesetz kommt, 57 BB 789, 794 (2002); Ulrich Seibert, Das “TransPuG“ – Gesetz zur weiteren Reform des Aktien‐ und Bilanzrechts, zu