German Law Journal
[Vol. 11 No. 02
Germany (ver.di), gained notoriety157. In 2002, Bsirske called a strike at Lufthansa AG, although he served as vice chairman of the supervisory board of Lufthansa AG. This shows that only having codetermination in place is not an appropriate protection against expensive strikes.158 Furthermore, it should be clear that employee representatives cannot be seen as independent board members, because they tend to protect the interests of their fellow workers rather than to serve in the interest of the company. 159
Another example for the employee representatives’ opinion that they only represent the personnel’s interest was the voting behavior of the employee representatives in the infamous Mannesmann case.160 When Mannesmann’s supervisory board, including the chief executive of Deutsche Bank AG, Josef Ackermann, awarded rich bonuses to top executives at Mannesmann amid the takeover battle with Vodafone in 2000, the employee representatives abstained from voting, because in their opinion a different behavior could not have been explained to their fellow workers and they believed that this very decision did not touch the personnel’s interests in the first place. As a result, codetermination per se cannot be seen as a safeguard against exorbitant bonuses and compensation. Therefore, making all supervisory board members responsible for executive remunerationas the Act on Adequacy of Executive Compensation as of 2009 diddoes not necessarily lead to an overall lower compensation level. To the contrary, there is still the risk that employee representatives bargain in order to receive benefits in exchange for their approval to excessive remuneration of the management. 161
4. Professionalism, Expertise and Codetermination
The recent development and changes in the laws concerning the German supervisory board have increased the responsibility of any supervisory board member as well as their risk of liability since the new legislation established increasingly demanding standards of care and expertise. Today, the supervisory board of capital market oriented companies must include a financial expert (Section 105(5)). Besides that, every supervisory board
157 See, Otto Ernst Kempen, Fernwirkungen von Arbeitskämpfen auf die Unternehmensmitbestimmung? (Der Fall Bsirske), in GEDÄCHTNISSCHRIFT FÜR MEINHARD HEINZE, 437‐438 (Alfred Söllner et al. eds., 2005); Klaus J. Hopt, Modernisierung der Unternehmensleitung und –kontrolle, in FESTSCHRIFT FÜR HARM PETER WESTERMANN, 1039, 1046 (Lutz Aderhold et al. eds., 2008); Andy Ruzik, Zum Streit über den Streik – Aufsichtsratsmandat und Gewerkschaftsführung im Arbeitskampf, 7 NZG 455‐459 (2004); for a different view, see, Thomas M.J. Möllers, Gesellschaftsrechtliche Treuepflicht contra arbeitnehmerrechtliche Mitbestimmung, 6 NZG 697‐701 (2003).
Hopt & Leyens (note 1),165.
For an earlier example from the 1950s, see, Vagts (note 1), 74‐75.
See, Peltzer (note 151), 1248‐1250; Jahn (note 151), 745; Henssler (note 147), 152.
See also, Hopt & Leyens (note 1), 165.