Aufsichtsratspraxis und Reform des Aufsichtsratsrechts

Supervisory boards are called upon today more than ever before. However, the law governing supervisory boards has become outdated and no longer does justice to the institution. There is widespread agreement on this inadequacy. A large number of reform proposals, varying significantly in nature, have been put forward. These need to be assessed for their conceptual consistency and in the light of today’s supervisory board practice and international experience. The starting point is that the supervisory board is tasked not only with providing retrospective oversight, but also proactive monitoring and advice. This is established in the case law of the Bundesgerichtshof, but it should also be made clear in the Stock Corporation Act. In the context of such legislative reform, many disputed questions arise, relating to topics such as the appropriate size and composition of the supervisory board; ancillary powers and auxiliary transactions; the resources of the supervisory board and possibly a supervisory board office; the role of the supervisory board chairman; information rights of the supervisory board within the company and externally (investor dialogue); requirements for the supervisory board and its members (especially with regard two expertise and independence); the role of financial experts, auditing committees, and other committees; the duties and liability of supervisory board members (also with regard to conflicts of interest); and the role of the supervisory board in the general meeting. In all of these regards, the question arises as to just where reforms should be adopted – only in the Stock Corporation Act or also in the German Corporate Governance Code (DCGK)? The guiding principles of any reform should be transparency and flexibility. Over-regulation must be avoided.