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120

German Law Journal

[Vol. 11 No. 02

regard to corporate planning. The new obligation emphasizes the responsibility of the supervisory board to monitor issues of corporate planning more carefully. The particular value of Section 90(1) is that the supervisory board participates increasingly in the company’s decision‐making process, especially with regard to the overall strategic concept of the firm. In this regard, the new provision emphasizes the future‐oriented monitoring obligation of the supervisory board which gained a lot more importance in the last decade.27 In particular, knowledge on corporate planning data provides the supervisory board with an insight into the prospective business policy of the company, and it improves its competence to promptly detect and prevent corporate malfeasance. Finally, the increased supply of information strengthens the advisory function of the supervisory board, because a better‐informed supervisory board is significantly more capable to advise the management board on fundamental issues of a corporation’s strategy.28

III. Organizational Improvements

With regard to its organization, the new law obligated the supervisory board to meet more often. In addition, the supervisory board is required to inform the shareholders’ meeting of publicly held companies with regard to the issues, which committees of the supervisory board have been established and how often the supervisory board and its committees have actually met.

The newly established Section 110(3) as of 1998which required the supervisory board of publicly held companies to meet twice in a semi‐annual period, the one of privately held companies only oncehad primarily symbolic value. The provision emphasized the importance of meetings in order to improve the efficiency of the supervisory board. However, as long as the monitoring capability of the supervisory board lacked refinement, it was hardly meaningful to force the supervisory board to meet more often.29 To increase the meeting frequency does not automatically lead to a supervisory board working more efficiently because a violation of Section 110(3) does not have any legal consequences.30

27 See, Official Explanatory Statement, (note 17), 15; Lutter (note 3), 775; Ulrich Seibert, Kontrolle und Transparenz im Unternehmensbereich (KonTraG) – Der Referenten‐Entwurf zur Aktienrechtsnovelle, 51 WERTPAPIERMITTEILUNGEN (WM) 1, 2 (1997).

28

LIEDER (note 2), 514.

29

Theodor Baums, Der Aufsichtsrat – Aufgaben und Reformfragen, 16 ZEITSCHRIFT FÜR WIRTSCHAFTSRECHT (ZIP) 11, 17 (1995); Marcus Lutter, Professionalisierung der Aufsichtsräte, 48 NJW 1133 (1995).

30

LIEDER (note 2), 508.

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