German Law Journal
[Vol. 11 No. 02
to appoint former board members by a motion presented by a 25 % share capital minority. If this may not be accomplished, the only opportunity to use the knowledge, skills and experiences of former board members is to close adviser contracts with them.107
More convincing, however, is the Code’s 2009 amendment, as Section 5.3.2 GCGC recommends the chairperson of the audit committee to be independent and not to be a former member of the management board of the listed company whose appointment ended less than two years ago. Generally, the Corporate Governance Code is able to deal more flexibly with issues of management board members becoming members of the supervisory board rather than any legal provision. Therefore, the Code is the appropriate place for the relevant regulation.
E. Committees of the Supervisory Board
The most recent amendments of the German stock corporation law and the Code’s recommendations improved the efficiency of the supervisory board through enhanced requirements on supervisory board committees. Establishing committees improves the monitoring skills of the supervisory board, because committees can overcome the structural problems of large, codetermined supervisory boards. Unlike large boards, committees can principally reach decisions more rapidly, they can meet more often, and they can facilitate an unconcealed exchange of ideas.108 Since several legislative attempts to limit the board size failed in the past few yearsbecause employees’ interest groups, such as workers unions, fought successfully for maintaining the status quo of German codeterminationcommittees may serve as a substitute for a smaller supervisory board. 109
Aufsichtsratsverflechtungen und ihr Einfluss auf die Vorstandsbezüge von DAX‐Unternehmen, 79 ZEITSCHRIFT FÜR BETRIEBSWIRTSCHAFT (ZFB) 1113, 1131‐1133 (2009).
107 Oliver Rode, Der Wechsel eines Vorstandsmitglieds in den Aufsichtsrat, 61 BB 341, 343 (2006); Dieling (note 96), 125‐126; Möllers & Christ (note 106), 2281.
See, e.g., LIEDER (note 2), 752‐753.
See, LIEDER (note 2), 489‐92, 510‐512.