VIPsight - 3rd Edition 2018

COMPANIES

RWE AG: Too much energy in the wood

The Higher Administrative Court Münster abolished the immediate enforcement of the forest clearance as permitted by the main operation plan 2018 – 2020 for the lignite opencast mine in Hambach. As a consequence, RWE has to await the final decision on the further forest clearance, which will be issued later in the main proceedings. Depending on the outcome, RWE may be allowed to resume the forest clearance thereafter.

As a result of the court decision, as of 2019 the EBITDA of the segment Lignite & Nuclear will be negatively affected in the range of a low three digit million Euro amount per year.

Linde AG: Getting closer to the final spurt

Linde AG confirmed that Praxair and Linde aligned on October 1^st, 2018 with the staff of the U.S. Federal Trade Commission (FTC) regarding the required sales of business activities in the United States and related commitments and that such remedy package has been submitted to the FTC Commissioners for their decision.

The company added that a successful completion of the business combination is, in addition, subject to the timely receipt of the required buyer approval by the European Commission. According to a prior announcement, the outstanding regulatory approvals need to be granted prior to October 24^th, 2018.

Fresenius SE & Co. KGaA: Court backs Fresenius´ exit from merger agreement with Akorn 

In the lawsuit by Akorn Inc. against Fresenius for the consummation of the April 2017 merger agreement the Court of Chancery in the U.S. state of Delaware ruled in favor of Fresenius. However, the judgement is not yet final.

Fresenius terminated the merger agreement due to Akorn´s failure to fulfill several closing conditions. An independent investigation initiated by Fresenius had revealed, among other things, material breaches of FDA data integrity requirements relating to Akorn´s operations. Akorn responded by suing in the court of Chancery in Delaware for the consummation of the agreement.

The news came as a blow to Akorn shareholders. In an initial market reaction, Akorn shares dropped by more than half despite the announcement of the intention to appeal the court decision.

Aurubis AG: European Commission expressed concerns regarding the approval of a sale of the segment Flat Rolled Products

In the course of merger control proceedings regarding the sale of the segment Flat Rolled Products of Aurubis to Wieland Werke AG, the European Commission informed Aurubis and Wieland that clearance of the transaction can probably not be achieved with the proposed remedies. The critical hurdle may be overcome with further remedies. However, Wieland is not obliged to offer these under the terms of the Sale and Purchase Agreement. Hence, Aurubis expects that the execution of the transaction is not any longer more likely than not.

Aurubis made clear that it does not share the Commission´s current assessment and that the parties agreed to continue the merger control proceedings in order to still achieve clearance of the transaction. Nonetheless, the managing board of Aurubis has identified strategic alternatives to the transaction as part of a contingency planning.

Buhlmann's Corner

Two sides of the same coin

A board of management is held responsible for everything and, in accordance with the principle of first among equals, its chair that much more so. Obviously the incumbent does not attend to the nuts and bolts of everything in person, but the totality of scope in organisational detail comes with totality of responsibility for it as a whole.

And so, as was the case of Rupert Stadler (AUDI) for whom the penny didn’t drop until several months after his arrest for fraud, accountability is as vital to responsibility as is a flame is to a moth, German accountables took to dancing in the street when on July 1 1994, Germany introduced D&O insurance (directors and officers). To offset the onus of responsibility, they can demand astronomically high salaries and highly respectable retirement packages which, to all intents, shifts liability to the insurance and reinsurance companies. A measure akin to this had begun to emerge in late 19th Century Prussia only to be quashed by the Minister of the Interior, vehemently opposed to the introduction of insurance of such low morality.

Today, the only detail of interest contained in legal codes and directives is the volume of minimum exemption thresholds. Management board members must abide by rules that cover “all that stuff” that asset managers must perform in order to forestall liability, consult one of the two major vote recommendation agencies and, just to be on the safe side secure the services of both directly – recommendations tend to  be the same anyway.

The only time that their real business – getting paid for freeing asset managers from liability – becomes complicated is when managers do things that the famous rules have not (yet) got round to dealing with. Why on earth should asset managers have to take on any more decision making than what their daily job of investing and disinvesting requires of them. They are the watchdogs who invigilate over the board of management and the Supervisory Board as to whether they act within the terms of the rules of the state and hence the law of the land. This being the case, problems inevitably arise when the mere  two-thirds of those entitled to vote are present at a company AGM and this is deemed sufficient, or the fact that nobody registers surprise when the number of those registered as attending a company AGM turns out to be twice the number of those actually there.

An example of responsibility is DEKA when it sues Volkswagen. If DEKA wins the case every Volkswagen shareholder pays damages to DEKA from their share portfolio.

They had only to dig deeper beforehand and then vote for and/or appoint the best of a better selection. The case took a grotesquely twisted turn when the main actor, the CFO, was promoted to chair the Supervisory Board, the slant being “best not to know”. As regards organisational performance and managerial skills, the management  board pocketed huge sums of money and lost no sleep over withholding knowledge of wrongdoing. Assuming the rumours are true, the Asset Manager sent the proxies and the liability purchased by ISS & Glass Lewis, without verifying where they ended up (requesting a receipt for votes cast perhaps?). Out of sight, out of mind.

But it was accountability itself that rubbed salt into this wound. In Germany, article 2 of the directive on shareholders’ rights amended § 129 Abs. 6 of the law on shares traded on the stock market that gives all shareholders the right to know how their votes were cast. The answer comes in the form of an observable technical function and too late to be of any use when the votes have gone abroad. Responsibility nil liability nil, Game over.

In Germany the so-called Energiewende, which, if the truth were told was nothing short of unconstitutional confiscation had been continually postponed so that the issuers– today known autility companies –  reorganize. Yes, indeed, reorganize because outside the actual companies, all the asset managers had done was promote a bit of light marketing in populist tones raising a half-hearted protest instead of defending the company as a benchmark of sustainability and reference point for co-determination.

The list of sad examples was not limited to  E.on and RWE, Volkswagen or Daimler, but included Deutsche Bank and its wobbly cultural turnaround, and lately Thyssenkrupp too. Hand in glove wih its scientist chair the board of management still needed more time to turn the company inside out, in or counter to shareholders’ interests even after the heads had stopped rolling. Right of appointment introduced in 2007 was at its most costly. Erich SIXT head of his own family stock market traded auto leasing group abolished it with no replacement.

In the end, the first market for D&O insurances was the USA, introduced contemporarily with the infamous Wall Street crash in New York on October 25 1929, Black Friday. The slump that followed brought bankruptcy to a great many banks and companies.

Verantwortung und Haftung

2 Seiten einer Münze

Jeder Vorstand trägt Gesamtverantwortung, der Vorsitzende am stärksten nach dem Grundsatz pars inter pares. Zwar fräst und dreht er nicht jede Schraube selbst, aber über das Institut der Organisations-Verantwortung ist er dran. Und im Zweifel merkt er dann – wie Rupert Stadler (AUDI) – erst weit nach seiner Verhaftung, dass die Haftung zur Verantwortung gehört, wie die Fliege zum Licht.

Genau deswegen haben die Haftenden vor Freude gejohlt, als nach dem 1.7.1994 die D&O Versicherung in Deutschland heimisch werden konnte. Für die Last der Verantwortung konnte man nun hohe Gehälter und dicke Pensionen kassieren und die Haftung dabei in das Netzwerk der Erst- und Rückversicherer fallen lassen. Ende des 19. Jahrhunderts war das schon einmal in Preußen erörtert worden, doch das Preußische Innenministerium wies dieses unmoralische Versicherungsprodukt damals ab.

Nun werden in den Leitlinien und Kodizes nur noch die Selbstbehalte als ganz wichtiges Detail diskutiert. An diese Regularien müssen sich Vorstände halten, denn hier ist auch „alles“ geregelt, was die anlegenden Asset Manager zur Verhinderung ihrer Haftung tuen: sie beauftragen eine der beiden globalen Abstimmungsempfehlungs-Agentur und um ganz sicher zu gehen,  kaufen sie die Deckung gleich bei beiden ein – Unterschiede bei den Empfehlungen sind sowieso eher selten. Schwierig ist deren Geschäft – dem Asset Manager die Haftung gegen Geld wegzunehmen - höchstens dann, wenn Vorstände etwas tun, was im Regelwerk (noch) nicht vorgesehen war.

Photo: VIPsight

Wieso tragen Asset Manager überhaupt Verantwortung (hier abgesehen von deren Auswahl der zu des- /investierenden Gattung)? Sie müssen die Vorstände (und Aufsichtsräte) mit den Werkzeugen der staatlichen Regelwerke (Gesetze) kontrollieren. Da bleibt es schon erstaunlich, dass mit Hauptversammlungs-Präsenzen von 2/3 aller Aktienstimmen Zufriedenheit einkehrt – oder gar mit Präsenz-Ergebnissen von über 100% nur ein Achselzucken erzeugt wird.

Verantwortung zeigt zum Beispiel die DEKA durch eine Klage gegen Volkswagen. Sollte DEKA den Streit gewinnen, zahlen alle Aktionäre des Emittenten den Schadensersatz der DEKA aus dem gesamten Aktionärsvermögen. Die hätten ja vorher aufpassen und vielleicht bessere Manager wählen und bestellen können. Da bleibt es ein Rülpser der Geschichte, wenn der Haupttäter Finanzvorstand zum Aufsichtsrat-Vorsitzenden befördert wurde.

Grafic: HV Magazin Sonderausgabe Locations 2018/19 http://gp-mag.de/hvloc1819

Am Schönsten ist dann immer noch „nichts gewusst“ zu haben. Der Vorstand hat wegen seiner Organisationsleistungen und Managementkompetenz zwar heftig kassiert, lässt sich aber von keinem Schuld begründenden Wissen am Nachtschlaf hindern. Der Asset Manager hat (wenn überhaupt) sein Stimmrecht mit der gekauften Verantwortung von ISS & GlassLewis auf die Reise gegeben, ohne nach einer Quittung zur Stimmrechtsausübung zu fragen: was man nicht weiß, macht einen nicht heiß. Und heiß steht hier für verantwortlich. Hoppla, da regelt das (deutsche) Einführungsgesetz der 2. Shareholder Rights Directive einen neuen §129 Abs. 5 AktG, wonach jeder (!) Aktionär ein Quittungsrecht gegen den Emittenten hat – obwohl das spätestens cross border technisch gar nicht funktionieren kann. Verantwortung weg, Haftung weg und Ruhe ist.

Die so genannte (deutsche) Energiewende, die nichts anderes als eine entschädigungslose (also verfassungswidrige) Enteignung der Aktionäre darstellte, konnte über Jahre verschleppt werden, bis dann die Emittenten –die so genannten Versorgungsunternehmen - sich neu sortiert haben. „Neu  sortiert“ ist schon der zutreffende Passus, denn von außerhalb der Emittenten kam es maximal zu einem marketinggetriebenen Einsatz der Asset Managern, die dem Populismus aufs Maul geschaut, zu mäßiger Kritik aufgelaufen sind, anstatt  den nachhaltigen Unternehmenswert als Maßstab und Richtschnur für Ihre Mitbestimmung anzusetzen. Schlimme Beispiele sind nicht nur E.on und RWE oder Volkswagen und Daimler, auch die Deutsche Bank mit ihrem immer noch quietschenden Kulturwandel und jüngst Thyssenkrupp. Nachdem die Köpfe entnervt gefallen und weggerollt wurden hat es ein wenig gedauert, bis ein Vorstand Hand in Hand mit seinem wissenschaftlichen Vorsitzenden mit, den Konzern gegen oder für die Aktionäre von den Füssen auf den Kopf gestellt wurde. Das 2007 erschaffene Entsenderecht zeigt ich von seiner teuersten Seite – da freut es, wie Familien-Unternehmen (und –Unternehmer Erich) SIXT das Entsenderecht 2018 ohne Gegenleistung bei der börsennotierten Leasing-Tochter abgeschafft hat.

Im Ergebnis blieb es den USA vorbehalten, der erste Markt für D&O-Versicherungen zu werden. Die Einführung dieser Versicherung ging mit dem Börsenkrach (Schwarzer Freitag) an der New Yorker Wallstreet am 25.10.1929 einher. Die damit beginnende große Rezession führte dazu, dass Banken und Unternehmen reihenweise in Konkurs gingen. Es herrschte in der Folgezeit große Verunsicherung in Wirtschaftskreisen. 

Due lati della stessa medaglia

Un consiglio di amministrazione è responsabile di tutto, e il suo presidente ancora di più, secondo il principio del pars inter pares. Ovviamente non può fare tutto da se, ma avendo la responsabilità organizzativa è lui che deve rispondere. E ci sta che – come nel caso di Rupert Stadler (AUDI) – che si renda conto solo mesi dopo il suo arresto che l’accountability appartiene alla responsabilità come la farfallina alla luce.

Proprio per questo motivo gli accountable tedeschi hanno fatto i salti di gioia quando il 1.7.1994 in Germania è stata introdotta la l’assicurazione D&O I (Directors and Officers).  Per controbilanciare il peso della responsabilità potevano chiedere remunerazioni stellari e pensioni di tutto rispetto, spostando la garanzia sulle compagnie di assicurazione e di re-assicurazione. Un tentativo del genere s’era già visto nella Prussia della fine dell’Ottocento. Peccato allora il ministero degli interni si oppose all’introduzione di un prodotto assicurato di così bassa leva morale.

Oggi come oggi, nelle direttive e nei codici l’unico dettaglio di interesse è il volume della franchigia. I membri di un consiglio di amministrazione devono attenersi a quelle regole che coprano anche “tutta quella roba” che gli asset manager devono fare per evitare la garanzia:  chiamare una delle due grandi agenzie di “vote recommendation”, e per andare proprio sul sicuro, comprare il servizio direttamente da tutti e due – tanto, le raccomandazioni sono in genere le stessi. Il loro business – ovvero quello di farsi pagare per togliere la responsabilità all’asset manager – si complica solamente quando gli amministratori fanno delle cose (ancora) non previste dalle famose regole.

Chi glielo fa fare agli asset manager di prendersi una responsabilità (a prescindere da quella di scegliere cosa investire e disinvestire). E’ loro compito di monitorare i consigli di amministratori (e anche i board di sorveglianza) per vedere se agiscono secondo le regole dello stato, e quindi secondo la legge. Ma se è così, è difficile spiegare che ci si accontenta quando in un’assemblea generale solo due terzi dei voti sono presenti – o quando nessuno si stupisce che alla fine di un’assemblea la presenza risulta essere superiore al cento per cento.

Uno che mostra responsabilità è ad esempio la DEKA quando fa causa alla Volkswagen. Se DEKA vince, tutti gli azionisti della Volkswagen pagano il risarcimento alla DEKA dal loro patrimonio azionistico. Bastava che controllare prima e/o votare e nominare dei manager migliori. In quel caso particolare l’ironia della storia è particolarmente grottesca se ricordiamo che l’attore principale (il CFO) è stato promosso a presidente del consiglio di sorveglianza.

Allora meglio “non aver saputo niente”. Per la performance organizzativa e la competenza manageriale CdA si è messo in tasca un monte di soldi, senza svegliarsi di notte per essere a conoscenza di fatti che potrebbero tradire una colpa. L’asset manager ha (se l’ha veramente fatto) spedito i diritti di voto insieme alla garanzia comprata da ISS & Glass Lewis, senza accertarsi dove siano finiti (chiedendo una ricevuta per l’esecuzione dei voti). L’occhio non vede, cuore non duole. E a provocare il dolore in questo caso è proprio l’accountability.  Però attenzione, in Germania legge introduttiva alla 2. Shareholder rights directive ha portato ad una modifica del § 129 Abs. 6 della legge sulle società quotate che dice che ogni (!) azionista ha nei confronti di un emittente il diritto ad una dichiarazione sull’effettiva esecuzione dei suoi voti – anche se al livello tecnico i limiti di questa regola si palesano al più tardi quando i voti sono andati all’estero.

Responsabilità zero, garanzia zero, e basta.

In Germania la cosiddetta Energiewende, che a dire la verità non era altro che un esproprio (anticostituzionale) degli azionisti, è stata per anni rimandata fino a che gli emittenti – oggi chiamati utility companies – si sono riorganizzati. Si, riorganizzati è proprio il termine giusto. Perché fuori dalle aziende stesse c’è stato al massimo qualche iniziativa di marketing promossa dagli asset manager che con un tenore di tipo populistico hanno fievolmente alzato la voce, invece di difendere il valore dell’azienda come unità di misura per la sostenibilità e riferimento per la loro co-determinazione. Tra i tristi esempi non ci sono E.on e RWE, Volkswagen o Daimler, ma anche la Deutsche Bank, il cui cambiamento culturale continua a scricchiolare, e ultimamente anche Thyssenkrupp. Quando alla fine le teste sono cadute, ci è voluto un po’ di tempo prima che un CdA sia riuscito mano nella mano col suo presidente scienziato a capovolgere il gruppo, pro o contro gli interessi degli azionisti. Il right of appointment (Entsenderecht) introdotto nel 2007 si mostra dal suo lato più oneroso – meno male che l’azienda di famiglia diretta da Erich SIXT ha deciso di eliminare senza sostituzione il diritto di appointment nella sua azienda di leasing (quotata).

Alla fine il primo mercato per le D&O insurances è stato quello degli Stati Uniti. L’introduzione  di queste polizze  è avvenuta in contemporanea con il famoso crollo della Borsa di Wall Street New Yorl il 25.10.1929, il Black Friday. La grande recessione che seguì ha fatto fallire molte banche e aziende.

Politics

Deutsche Bank AG: BaFin appoints special representative

In order to prevent money laundering and terrorist financing, BaFin ordered Deutsche Bank AG to take appropriate internal safeguards and comply with general due diligence obligations, based on section 51 (2) sentence 1 of the German Money Laundering Act (Geldwäschegesetz).

BaFin also appointed a special representative in accordance with section 45c (1) in conjunction with section 45c (2) no. 6 of the German Banking Act (Kreditwesengesetz) in order to monitor the implementation of the ordered measures. The notice became final on September 21^st, 2018.

Furthermore, the management board of Deutsche Bank appointed Stephan Wilken as head of Anti-Financial-Crime and Group Anti-Money Laundering Officer, effective October 1^st, 2018. Wilkens replaces an executive who is leaving for Danske Bank to become chief compliance officer and join the board of that bank. Wilken´s appointment is still subject to regulatory approval.

People

AUDI AG: Fall cleaning I

On October 2^nd, 2018, the supervisory boards of Volkswagen AG and AUDI AG finally consented to the conclusion of an agreement with Rupert Stadler on the termination of his offices as a member of the managing board of Volkswagen AG and chairman of the managing board of AUDI AG, as well as his service agreements. According to the press release, Mr. Stadler is leaving the companies with immediate effect and will no loner work for the Volkswagen Group. He is supposedly doing so because, due to his ongoing pretrial detention, he is unable to fulfil his duties as a member of the managing board and wishes to concentrate on his defence. The contractual execution depends on the course and outcome of the criminal proceedings.

Leifheit AG: Supervisory board recalls CEO Thomas Radtke with immediate effect

The homepage still displays a prominent feature of the former CEO, stating “There is still plenty of potential in the Leifheit and Soehnle brands. We want to exploit this potential.” Not with him anymore, though. On October 15^th, 2018, the company issued a profit-warning and informed that the supervisory board recalled the former CEO Thomas Radtke as member of the board, releasing him from his duties with immediate effect. The original appointment of Mr. Radtke ran until the end of 2019.

According to the release, the term of Mr. Radtke is linked to the strategy “Leifheit 2020”. Despite a successful start in the initial phase of the implementation, more recently the success “failed to appear”. Hence, the supervisory board had “to accept loss of confidence of investors and business partners.”

Apart from the announcement of changes on the management board, the release also contains a detailed explanation of the amendments to the strategy and the consequences of the measures taken, including a profit-warning, which in part is due to expenses incurred in the context of the recall of Mr. Radtke.

An unfortunate development, but a fair and detailed information of shareholders.

Grammer AG: Ningbo Jifeng lost Grammer´s board members

Following the successful acquisition of an 84-percent stake by its Chinese majority shareholder Ningbo Jifeng, the members of the executive board of Grammer AG announced that they plan to utilize their contractual change-of-control rights and resign as members of the board. As an explanation for this move, the announcement stated that the unexpectedly high acceptance rate of the takeover offer of Ningbo Jifeng resulted in a more clearly than expected shift in the shareholder structure of Grammer AG. 

In particular the CEO Hartmut Müller has been central in the managements strategy to implement the group´s growth strategy, including the establishment of the strategic partnership with Ningbo Jifeng at a time when the company was the target of an unwelcome approach by another strategic shareholder. The change-of-control-clause exercised now by the members of the executive board was introduced in this phase.

The news release clarified that the terms of the business combination agreement with Ningbo Jifeng are still in force. The agreement contains extensive commitments for the preservation of the Group´s national and international sites. In addition, the news release stated that the majority shareholder supports the continuation of the company´s growth and innovation strategy as well as its financing and dividend policies. Furthermore, it indicated that the supervisory board expects to fill the board positions swiftly. 

Capital News

AUDI AG: Fall cleaning II

The Munich II public prosecutor issued an administrative order against AUDI AG in its capacity as affected party (Betroffene) pursuant to sections 30 para. 1, 130 para. 1 of the German Act on Regulatory Offences (Ordnungswidrigkeitengesetz - OWiG) in the context of deviations from regulatory requirements in certain V6 and V8 diesel aggregates and diesel vehicles manufactured or distributed by AUDI AG. The administrative order provides for a fine of EUR 800 million in total, consisting of the maximum penalty as legally provided for of EUR 5 million for negligent regulatory offences and the disgorgement of economic benefits (Abschöpfung wirtschaftlicher Vorteile) in the amount of EUR 795 million. As a result of the administrative order imposing the fine, the active regulatory offence proceedings conducted by the Munich II public prosecutor against AUDI AG will be finally terminated.

AUDI AG accepted the fine and it will not lodge an appeal against it. By doing so, Audi AG admits its responsibility for the deviations from regulatory requirements.

Thyssenkrupp AG: Split into two companies planned

The supervisory board of thyssenkrupp AG unanimously agreed to the managing director´s plan to divide the group into two separate companies via a spin-off.

According to the plan, the industrial goods (“thyssenkrupp Industrials”) and the materials (“thyssenkrupp Materials”) businesses shall be managed as independent, listed companies with direct access to the capital markets each. thyssenkrupp Industrials operates as a pure capital goods business and will consist of three units (elevator business, automotive supplier business and core plant construction). The remaining activities of the group will be concentrated at thyssenkrupp Materials, comprising the steel and stainless steel production including the 50 percent holding in the future steel joint venture, materials trading and steel-related processing.

The two new entities will be of comparable size. Based on pro forma data for fiscal 2016/17, thyssenkrupp Industrials would generate sales of around 16 bn Euro, while thyssenkrupp Materials would have sales of approximately 18 bn Euro.

The split has to be decided at an AGM, which could take place approximately 12 – 18 months from now.

BMW AG: Substantial investments planned in China

BMW announced the intention to raise its holding in the joint venture with its Chinese partner Brilliance China Automotive Holdings, BMW Brilliance Automotive from 50 percent to 75 percent. Both partners signed a corresponding agreement, which still is subject to the approval of the relevant authorities and the consent of Brilliance China Automotive Holdings.

At the same time, the joint venture announced an investment of more than three billion Euro in new and existing plant structures over the coming years, thus increasing the production capacity to 650.000 units from the early 2020s.

The importance of China is indicated by sales of around 560.000 BMW-cars in 2017. Two thirds of all BMW vehicles sold in China last year were produced at the joint venture.

In light of the American-Chinese trade war, it is interesting to note that this is the first ever such move by a global car maker as China begins to relax ownership rules for its market. The relevance of this step for the shareholders of Brilliance China Automotive Holdings was underpinned by an approximately 30 percent share price decline following the announcement of the initiative.

STADA Arzneimittel AG: Time to say goodbye

Nidda Healthcare, a company controlled by Bain Capital and Cinven Partners, published an offer document for the public delisting tender offer for all shares of STADA Arzneimittel AG. The four-week acceptance period will end on November 8^th, 2018.

Nidda Healthcare offers a cash consideration of 81.73 Euro per STADA share. This price equals the weighted average domestic stock exchange price of STADA shares during the last six months prior to the announcement of the decision to make a public delisting tender offer. The cash consideration represents a premium of approximately 23.5 percent on the offer price of 66.25 Euro per STADA share during the takeover offer in 2017, and a premium of 10 percent on the cash compensation of 74.40 Euro offered to minority shareholders in the context of the domination and profit and loss transfer agreement.

CECONOMY AG: Profit warning alarms shareholders

In a capital market news release dated October 8^th, 2018 CECONOMY warned that based on preliminary figures the 2017/18 EBITDA is expected in the region of 630m Euro, well below last years´ 714m Euro (before special items), while the EBIT would amount to approximately 400m Euro (prior year: 494m Euro before special items). These numbers are well below the data published just three weeks earlier in another prior profit warning published on September 18^th, 2018.

CECONOMY did not provide concrete background information about the reasons for the substantial deviation from the first profit warning except for a hint that it is attributable to MediaMarktSaturn Retail Group. But this does not explain why such an amount could evaporate from the earnings expectations within such a short period of time. The lack of appropriate information resulted in speculations that the company may have miscalculated rebates it expected from suppliers, resulting in a sharp decline of the share price.

In an extraordinary meeting held on October 13^th, 2018, the supervisory board and the CEP Peter Haas decided to part ways “by mutual consent” with immediate effect. Based on an understanding with the supervisory board, the CFO Mark Freese shall remain in office until the appointment of his successor and an “amicable revocation” of his employment contract has been found. The chairman of the supervisory board, Jürgen Fitschen, added in a statement, that “we are firmly convinced that this is the only way for CECONOMY to restore the trust that has been lost on the capital market.”

Unfortunately, even with the third statement in a row CECONOMY missed the chance to inform shareholders about what really happened and why the CEO left the company with immediate effect, although no replacement seems to be in sight. Full financial disclosure for the past fiscal year 2017/18 shall be published on December 19^th, 2018.

VIPsight - 2nd Edition 2018

COMPANIES

Deutsche Bank AG: Strategic adjustments in its corporate & investment bank (CIB)

After several years of standstill, Deutsche Bank decided to shift more decisively towards more stable revenue sources and to strengthen those core business lines which are most important for its European and multi-national clients. The bank will focus its corporate finance business on industries and segments which either align with its core European client base or link to financing and underwriting products in which it enjoys a leadership position, scale back activities in US rates sales and trading, and undertake a review of its global equities business with the expectation of reducing its platform.

Part of the initiatives are a significant reduction in workforce (in particular as a consequence of the right-sizing of the corporate & investment bank), delayering of management structures across the organization, a rationalization of external spend and real estate footprint worldwide, and increasing efficiency of control systems.

As regards the investment banking, the new CEO Christian Sewing stated in this context: “We are on a good track both in the DWS asset management business and in our private & commercial bank, although we need to substantially improve profitability in both. Our corporate & investment bank is also doing well in some areas and held or gained market share in certain areas. However, we are not strong enough in other areas of this business. Therefore we have to act decisively and to adjust our strategy. There is not time to lose as the current returns for our shareholders are not acceptable.”

Deutsche Bank´s AGM will be held on May 24^th, 2018.

Porsche Automobil Holding SE: Won´t get far this way….

In January Porsche moaned about a decision of the Regional Court of Stuttgart. The press release complained that the court deemed the executive board and supervisory board of Porsche to not have sufficiently fulfilled its obligations under Sec. 91 (2) AktG to set up a functioning monitoring system in fiscal 2015 “after the so called diesel issue came to light on 18 September 2015.” And of course the company added that it considers this allegation to be without merit.

In April the prosecutors searched offices of Porsche. The investigation targeted current and former managers over the diesel emission scandal, including suspicions of fraud and misleading advertising. According to the press, the investigation concerns a Porsche board member, another member of the upper management and a third person.

By the way, this time the company did not bother to make a press release, not to mention an ad hoc news…..

METRO AG: Transfer of Real-business in new entity planned

As a consequence of unsuccessful collective bargaining negotiations with the trade union Verdi about a collective bargaining solution, METRO decided to prepare alternative collective bargaining solutions.

Following two years of negotiations with Verdi without any result, METRO created the framework conditions for a new approach to collective agreements, according to the CEO Olaf Koch. The company has therefore started to prepare the prerequisites for a collective agreement outside of the current HDE structure (Association of German Retailers) and intends to utilize its membership in the employers association AHD for that purpose.

Basically, this means a realignment within the METRO Group, including the transfer of the operating business of Real (retail sales) into the Metro Services GmbH. Verdi criticized the move since the remuneration of employees is supposed to be lower in the new entity, and the move would make the business look more attractive in case of a sale at the expense of employees.

Thyssenkrupp AG: Status of the negotiations with Tata

In September 2017 thyssenkrupp informed about the plan to form a joint venture of its European steel activities with Tata Steel Europe. At the time, the partners expected to finalize the negotiations regarding the details of the transaction and the due diligence at the beginning of 2018, when a signing was supposed to complete this process.

In the meantime, the reality of complicated business transactions took its toll. In April, the company made an announcement regarding the progress achieved so far. According to the release, the due diligence of both businesses is almost complete and viable solutions for key issues have been reached. However, Tata Steel is still working to finalize certain arrangements, which is why thysssenkrupp expects that the boards can decide on the joint venture within the first half of the year, rather than at the beginning.

Buhlmann's Corner

AGMs today – what best standards ought they to have

One thing is for sure, shareholder AGMs continue to vary from country to country, legal form to legal form and culture to culture.

Broadridge has failed to grasp this mechanism but makes up for it globally by placing everything cross-border on Lake Success irrespective of point of origin  or quantity, and then compensating from there. In Germany this is managed though a bank by a team of elderly gentlemen, in Italy the person responsible is a lawyer – Dario Trevisan Esquire – and in Spain the job is handled by a number of correspondents.

AGMs

But let’s take  a closer look at the bank. The Deutsche Bank shareholder AGM imploded into an April shower in a schnapps glass. Former CEO John Cryan, fired for lack of success and luck, won best discharge rating of 94.78% beating his fellow  management board members. Criticism of the Supervisory Board is also manifest,  but only to the right of the decimal point. President Paul Achleitner won 84.40% of votes cast. Best overall score, however, went to Stefan Rudschäfski at 84.74 %. After a mere 15 months he faded out just as quietly as he had faded in, proving that silence must be golden after all.

The absurdity of the arithmetic reached its high point, however in what to do with Paul Achleitner. 0.63% voted for his deselection as president of the AGM, while 9.05 % voted in favour of his reselection as Chair of the Supervisory Board.

GE – General Electric, icon of U.S. industry and emblem of ideals of liberty and “go west young man”, is expected to withdraw from the Dow Jones industrial index. A founding member of the index at its inception in 1896, G.E., will probably be the last of the “old timers” to leave the grand old man of all indexes. Today, a perverse protocol creates ETFs (Exchange Traded Funds) and a valve for private equity. Thus , while shared responsibility and determination invested in ETFs diminish through costs, there is an increase in the power wielded by the so-called activists in a way not unlike what happened with the bank. Even the initial assessment of one-time heavy engineering manufacturer of locomotives based in the Pittsburg PA suburb of Imperial was superficial and didn’t dig too deep. Goodwill as of today stands at 84 billion, and is identical to  private equity of  84 billion.

Back in 2012 when the share value of the data monopolies like Apple, Amazon, Google/Alphabet, Microsoft (itself now one of the “seniors” of this group) and Facebook had far outstripped those of the Big Oil companies, it was put down to the Deepwater Horizon affair (owned and managed by Transocean, Switzerland). Today, instead, we know that

- Results and equity don’t count in assessments;

- Acts detrimental to reputation ­- see the recent presumed damage with Facebook – disappear in a matter of weeks.

The oil industry has existed for 160 years and (German) AGMs a few decades less. The farsightedness of the 1965 stock market legislation is still applied today and has served as an example for a number of other European countries. As  recently as the 1980s, voting by proxy in France was limited to co-shareholders and spouses.

So now what?

Capgemini (one of the first “fat-cat” world-wide consultancy companies) grants its shareholders 90minutes of AGM time for 8 speeches/non-innovative presentations but then 20 minutes into the last Q&A begins to chivvy the speaker to cut short “très rapide, il nous reste une minute”. 22 motions are voted  on in 21 minutes. Here, too, the feeling is very much “the more the issues are perceived as individual, the less consideration they get”. And while we’re on the subject, Goodwill here weighs in at 9.9 billion against 6.9 private equity, both accumulated in 50 years of doing business.

Shareholders attending the AGM of France’s biggest bank which by unbelievable coincidence was held on the same day as the German bank’s were handed, on arriving, a pamphlet illustrating the day’s agenda (see hereafter). Note: presentations were  allowed more time resulting in less time needed for Q&A.

ASSEMBLEE GÉNÉRALE MIXTE

24 MAI 2018

CARROUSEL DU LOUVRE

10h00 - Ouverture de I'Assemblée Générale par Jean Lemierre, Président

- Composition du Bureau et constatation de Ia régularité de l'Assemblée

- Ramassage des questions écrites

Film :  Présentation de BNP Paribas

10h10- Activités et Résultats, Plan de développement, Engagement d'entreprise et RSE, Gouvemance

- Philippe Bordenave : résultats de l'exercice 2017

- Jean-Laurent Bonnafé : déploiement  du Plan 2020

- Antoine Sire et Laurence Pessez : engagement d'entreprise et RSE

- Jean Lemierre : gouvernance, rémunération des dirigeants  mandataires sociaux

11h20 - Questions et échanges avec les actionnaires

11h48 - Lecture des rapporls des Commissaires aux Comptes

12h40- Clôture de Ia réunion

12h50 - Vote des projets de résolutions

"AGM's timetable as hand-out, dropped on every seat"

When, instead, balance sheet or year-end accounts take up more than 500 pages;

When, like in Switzerland, registering to vote and taking part are subordinate to the obligation to vote (premise for the procedure);

When ne’er eyebrow is raised at attendance figures – see Spain – higher than 100%;

When a Societé Générale (with issues as immediate as they are thorny) summons its AGM for 4 pm in the afternoon;

When time spent attending AGMs is used to collect consultancy billing hours (twenty years ago the mere mention of remuneration spelled death in every political economy while  today it is recognised as the life blood in the field of consultancy);

When more time is allocated to taking photographs of NGOs than solving issues of management and strategy;

"prompt during the management report "governance" some NGO activists where abseiling in the 2018 AGM, while others loved drumming or blowed their whistle"

When the hot-dog stands in Germany, the coffee shops in the Netherlands, the jus de fruits in France or even the mineral water dispensers in Spain become more interesting that the performance of staff …

Perhaps we should take a leaf out of England’s book where AGMs have been abolished and legislation has empowered two world-wide consultancy firms to resolve everything and take the minutes to some notary for registration or, perhaps directly, to the toilet of an airport somewhere.

Hey guys, any plans for next year? I’m going back to Partners Group, that at least is a fun place to be.

ACTIONS CORNER

Linde AG: Squeeze out planned

In order to facilitate the planned business combination, Linde AG and Praxair, Inc. agreed to implement a merger of Linde AG into Linde Intermediate Holding AG as the surviving entity in the event of a successful completion of the business combination. This move would help to simplify the group structure. Its implementation includes a squeeze out of the remaining minority shareholders of Linde AG against cash compensation and would only become effective in the event of a successful completion of the business combination.

Linde Intermediate Holding AG is a wholly-owned indirect subsidiary of Linde plc. In the event of a successful completion of the business combination, Linde Intermediate Holding AG is expected to hold approximately 92% of the shares in Linde AG. To that end, Linde intermediate Holding AG will enter into negotiations with Linde AG regarding a merger agreement. An extraordinary shareholders´ meeting which would resolve the transfer of the shares of the remaining shareholders of Linde AG to Linde Intermediate Holding AG against adequate cash compensation would take place following the completion of the business combination.

Steinhoff International Holdings NV: Sale of Holding in Poco is on the way

According to an article in the German newspaper Handelsblatt, Steinhoff and the owner of the XXL Lutz furniture chain, Andreas Seifert, found a solution for the quarrel over the furniture retailer Poco at a meeting at the Regional Court of Dortmund. The settlement includes a sale of the shares in Poco previously held by Steinhoff to Seifert. In return for the 50% holding, Steinhoff will receive EUR 266.25 million. The transaction is still pending, subject to approval by the family trust of the founder of Poco, Peter Pohlmann.

According to the article, Steinhoff previously valued 100% of Poco at EUR 650 million, i.e. 50% equals EUR 325 million. The article does not say, however, whether this amount would be the book value of the Poco shares sold.

Fresenius SE & Co. KGaA: Merger agreement with Akorn terminated

On April 22^nd Fresenius announced that it has decided to terminate the company´s merger decision with Akorn due to Akorn´s failure to fulfill several closing conditions. The announcement mentioned material breaches of FDA data integrity requirements relating to Akorn´s operations found during Fresenius´ independent investigation. According to the release, Fresenius offered to delay its decision in order to allow Akorn additional opportunity to complete its own investigation and present any information it wished Fresenius to consider, but Akorn has declined that offer. 

Akorn reacted with a lawsuit against Fresenius at the Court of Chancery in Delaware, for the consummation of the merger agreement. Here, it argues that Fresenius was obliged to close the transaction because all closing conditions of the merger agreement, except for the FTC clearance, were met. However, Fresenius confirmed that it believes that Akorn failed to fulfill several conditions, and that it will take all necessary and appropriate measures to vigorously contest the claims.

Following a first indication of problems with the planned USd 4.3 bn transaction in February this year, investors had become increasingly concerned. Akorn´s shares droppd by more than 35 percent on the announcement.

People

GEA Group AG: CFO takes early retirement

GEA Group announced that its supervisory board and the CFO Dr. Helmut Schmale have mutually agreed that Dr. Schmale will step down from the executive board prior to the termination of his appointment, which is due to expire by the end of March 2021. Pending a decision on his succession, Dr. Schmale will continue to perform his present tasks and responsibilities.

A few weeks earlier, the company already announced that the CEO Jürg Oleas does not intend to extend the term of his office beyond December 31^st, 2019, and suggested to leave the executive board at the AGM in April 2019 in order to allow for a swift change in leadership.

Recent earnings announcements and the share price movement since the beginning of this year did not meet investor´s expectations. The upcoming changes on the executive board level may pave the way for a more positive trend.

Capital News

Innogy SE: Due diligence regarding certain business activities granted

Just a few weeks after it E.ON Verwaltungs SE announced its intention to make an offer for the shares of Innogy in mid-March, the company received a request by an interested acquirer to grant a due diligence regarding its business activities in the Czech Republic and to provide selected information on the respective business activities. Also, the company received expressions of interest for certain business activities in the divisions Renewables, Retail and Grid& Infrastructure.

E.On plans to offer a cash consideration of EUR 36.76 per Innogy share via a voluntary public takeover offer. In addition shareholders would receive dividends paid for the financial years 2017 and 2018, which are estimated to amount to EUR 3.24 per share.

At this stage, it is still open whether and on what terms offers for individual business activities will be submitted and if they could have an impact on the voluntary offer by E.ON.

DWS Group GmbH & Co. KGaA: Stabilization efforts reduce net IPO proceeds for Deutsche Bank

According to the homepage of DWS, the shareholding of Deutsche Bank AG amounts to 77.75%. This information is based on the information contained in a voting rights notification published at the time of the IPO.

Already four weeks later this information is no longer current. During this period, Credit Suisse acquired shares via stabilization measures, thus ending up with approximately 3.5 million shares, which are supposed to return to Deutsche Bank, raising its holding in DWS to approximately 79.5 percent, and reducing the already disappointing net proceeds from the IPO from 1.4 bn to EUR 1.33 bn. Still, the share price remained well below the issue price.

Privacy Policy

We are very delighted that you have shown interest in our enterprise. Data protection is of a particularly high priority for the management of the KIS kapital-investition-service GmbH. The use of the Internet pages of the KIS kapital-investition-service GmbH is possible without any indication of personal data; however, if a data subject wants to use special enterprise services via our website, processing of personal data could become necessary. If the processing of personal data is necessary and there is no statutory basis for such processing, we generally obtain consent from the data subject.

The processing of personal data, such as the name, address, e-mail address, or telephone number of a data subject shall always be in line with the General Data Protection Regulation (GDPR), and in accordance with the country-specific data protection regulations applicable to the KIS kapital-investition-service GmbH. By means of this data protection declaration, our enterprise would like to inform the general public of the nature, scope, and purpose of the personal data we collect, use and process. Furthermore, data subjects are informed, by means of this data protection declaration, of the rights to which they are entitled.

As the controller, the KIS kapital-investition-service GmbH has implemented numerous technical and organizational measures to ensure the most complete protection of personal data processed through this website. However, Internet-based data transmissions may in principle have security gaps, so absolute protection may not be guaranteed. For this reason, every data subject is free to transfer personal data to us via alternative means, e.g. by telephone.

1. Definitions

The data protection declaration of the KIS kapital-investition-service GmbH is based on the terms used by the European legislator for the adoption of the General Data Protection Regulation (GDPR). Our data protection declaration should be legible and understandable for the general public, as well as our customers and business partners. To ensure this, we would like to first explain the terminology used.

In this data protection declaration, we use, inter alia, the following terms:

• a) Personal data

  Personal data means any information relating to an identified or identifiable natural person (“data subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

• b) Data subject

  Data subject is any identified or identifiable natural person, whose personal data is processed by the controller responsible for the processing.

• c) Processing

  Processing is any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

• d) Restriction of processing

  Restriction of processing is the marking of stored personal data with the aim of limiting their processing in the future.

• e) Profiling

  Profiling means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.

• f) Pseudonymisation

  Pseudonymisation is the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.

• g) Controller or controller responsible for the processing

  Controller or controller responsible for the processing is the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.

• h) Processor

  Processor is a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.

• i) Recipient

  Recipient is a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing.

• j) Third party

  Third party is a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data.

• k) Consent

  Consent of the data subject is any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.

2. Name and Address of the controller

Controller for the purposes of the General Data Protection Regulation (GDPR), other data protection laws applicable in Member states of the European Union and other provisions related to data protection is:

KIS kapital-investition-service GmbH

4, ave de Wissembourg

F 67500 Hagenau

France

Phone: 00 33 3 888 348 69

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Website: www.vipsight.eu

3. Name and Address of the Data Protection Officer

The Data Protection Officer of the controller is:

Lutz Lehmann

KIS kapital-investition-service GmbH

4, ave de Wissembourg

F 67500 Hagenau

France

Phone: 00 33 3 888 348 69

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Website: www.vipsight.eu

Any data subject may, at any time, contact our Data Protection Officer directly with all questions and suggestions concerning data protection.

CNIL - Commission Nationale de l'Informatique et des Libertés
https://www.cnil.fr/en/home
3 Place de Fontenoy
TSA 80715
75334 PARIS CEDEX 07

4. Collection of general data and information

The website of the KIS kapital-investition-service GmbH collects a series of general data and information when a data subject or automated system calls up the website. This general data and information are stored in the server log files. Collected may be (1) the browser types and versions used, (2) the operating system used by the accessing system, (3) the website from which an accessing system reaches our website (so-called referrers), (4) the sub-websites, (5) the date and time of access to the Internet site, (6) an Internet protocol address (IP address), (7) the Internet service provider of the accessing system, and (8) any other similar data and information that may be used in the event of attacks on our information technology systems.

When using these general data and information, the KIS kapital-investition-service GmbH does not draw any conclusions about the data subject. Rather, this information is needed to (1) deliver the content of our website correctly, (2) optimize the content of our website as well as its advertisement, (3) ensure the long-term viability of our information technology systems and website technology, and (4) provide law enforcement authorities with the information necessary for criminal prosecution in case of a cyber-attack. Therefore, the KIS kapital-investition-service GmbH analyzes anonymously collected data and information statistically, with the aim of increasing the data protection and data security of our enterprise, and to ensure an optimal level of protection for the personal data we process. The anonymous data of the server log files are stored separately from all personal data provided by a data subject.

5. Subscription to our newsletters

On the website of the KIS kapital-investition-service GmbH, users are given the opportunity to subscribe to our enterprise's newsletter. The input mask used for this purpose determines what personal data are transmitted, as well as when the newsletter is ordered from the controller.

The KIS kapital-investition-service GmbH informs its customers and business partners regularly by means of a newsletter about enterprise offers. The enterprise's newsletter may only be received by the data subject if (1) the data subject has a valid e-mail address and (2) the data subject registers for the newsletter shipping. A confirmation e-mail will be sent to the e-mail address registered by a data subject for the first time for newsletter shipping, for legal reasons, in the double opt-in procedure. This confirmation e-mail is used to prove whether the owner of the e-mail address as the data subject is authorized to receive the newsletter.

During the registration for the newsletter, we also store the IP address of the computer system assigned by the Internet service provider (ISP) and used by the data subject at the time of the registration, as well as the date and time of the registration. The collection of this data is necessary in order to understand the (possible) misuse of the e-mail address of a data subject at a later date, and it therefore serves the aim of the legal protection of the controller.

The personal data collected as part of a registration for the newsletter will only be used to send our newsletter. In addition, subscribers to the newsletter may be informed by e-mail, as long as this is necessary for the operation of the newsletter service or a registration in question, as this could be the case in the event of modifications to the newsletter offer, or in the event of a change in technical circumstances. There will be no transfer of personal data collected by the newsletter service to third parties. The subscription to our newsletter may be terminated by the data subject at any time. The consent to the storage of personal data, which the data subject has given for shipping the newsletter, may be revoked at any time. For the purpose of revocation of consent, a corresponding link is found in each newsletter. It is also possible to unsubscribe from the newsletter at any time directly on the website of the controller, or to communicate this to the controller in a different way.

6. Newsletter-Tracking

The newsletter of the KIS kapital-investition-service GmbH may contains a link to the newsletter administration. The personal data will not be passed on to third parties. Data subjects are at any time entitled to revoke the respective separate declaration of consent issued by means of the double-opt-in procedure. After a revocation, these personal data will be deleted by the controller. The KIS kapital-investition-service GmbH automatically regards a withdrawal from the receipt of the newsletter as a revocation.

7. Routine erasure and blocking of personal data

The data controller shall process and store the personal data of the data subject only for the period necessary to achieve the purpose of storage, or as far as this is granted by the European legislator or other legislators in laws or regulations to which the controller is subject to.

If the storage purpose is not applicable, or if a storage period prescribed by the European legislator or another competent legislator expires, the personal data are routinely blocked or erased in accordance with legal requirements.

8. Rights of the data subject

• a) Right of confirmation

  Each data subject shall have the right granted by the European legislator to obtain from the controller the confirmation as to whether or not personal data concerning him or her are being processed. If a data subject wishes to avail himself of this right of confirmation, he or she may, at any time, contact any employee of the controller.

• b) Right of access

  Each data subject shall have the right granted by the European legislator to obtain from the controller free information about his or her personal data stored at any time and a copy of this information. Furthermore, the European directives and regulations grant the data subject access to the following information:

  • the purposes of the processing;
  • the categories of personal data concerned;
  • the recipients or categories of recipients to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;
  • where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;
  • the existence of the right to request from the controller rectification or erasure of personal data, or restriction of processing of personal data concerning the data subject, or to object to such processing;
  • the existence of the right to lodge a complaint with a supervisory authority;
  • where the personal data are not collected from the data subject, any available information as to their source;
  • the existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) of the GDPR and, at least in those cases, meaningful information about the logic involved, as well as the significance and envisaged consequences of such processing for the data subject.

  Furthermore, the data subject shall have a right to obtain information as to whether personal data are transferred to a third country or to an international organisation. Where this is the case, the data subject shall have the right to be informed of the appropriate safeguards relating to the transfer.

  If a data subject wishes to avail himself of this right of access, he or she may, at any time, contact any employee of the controller.

• c) Right to rectification

  Each data subject shall have the right granted by the European legislator to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.

  If a data subject wishes to exercise this right to rectification, he or she may, at any time, contact any employee of the controller.

• d) Right to erasure (Right to be forgotten)

  Each data subject shall have the right granted by the European legislator to obtain from the controller the erasure of personal data concerning him or her without undue delay, and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies, as long as the processing is not necessary:

  • The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.
  • The data subject withdraws consent to which the processing is based according to point (a) of Article 6(1) of the GDPR, or point (a) of Article 9(2) of the GDPR, and where there is no other legal ground for the processing.
  • The data subject objects to the processing pursuant to Article 21(1) of the GDPR and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Article 21(2) of the GDPR.
  • The personal data have been unlawfully processed.
  • The personal data must be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject.
  • The personal data have been collected in relation to the offer of information society services referred to in Article 8(1) of the GDPR.

  If one of the aforementioned reasons applies, and a data subject wishes to request the erasure of personal data stored by the KIS kapital-investition-service GmbH, he or she may, at any time, contact any employee of the controller. An employee of KIS kapital-investition-service GmbH shall promptly ensure that the erasure request is complied with immediately.

  Where the controller has made personal data public and is obliged pursuant to Article 17(1) to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform other controllers processing the personal data that the data subject has requested erasure by such controllers of any links to, or copy or replication of, those personal data, as far as processing is not required. An employees of the KIS kapital-investition-service GmbH will arrange the necessary measures in individual cases.

• e) Right of restriction of processing

  Each data subject shall have the right granted by the European legislator to obtain from the controller restriction of processing where one of the following applies:

  • The accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data.
  • The processing is unlawful and the data subject opposes the erasure of the personal data and requests instead the restriction of their use instead.
  • The controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims.
  • The data subject has objected to processing pursuant to Article 21(1) of the GDPR pending the verification whether the legitimate grounds of the controller override those of the data subject.

  If one of the aforementioned conditions is met, and a data subject wishes to request the restriction of the processing of personal data stored by the KIS kapital-investition-service GmbH, he or she may at any time contact any employee of the controller. The employee of the KIS kapital-investition-service GmbH will arrange the restriction of the processing.

• f) Right to data portability

  Each data subject shall have the right granted by the European legislator, to receive the personal data concerning him or her, which was provided to a controller, in a structured, commonly used and machine-readable format. He or she shall have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, as long as the processing is based on consent pursuant to point (a) of Article 6(1) of the GDPR or point (a) of Article 9(2) of the GDPR, or on a contract pursuant to point (b) of Article 6(1) of the GDPR, and the processing is carried out by automated means, as long as the processing is not necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

  Furthermore, in exercising his or her right to data portability pursuant to Article 20(1) of the GDPR, the data subject shall have the right to have personal data transmitted directly from one controller to another, where technically feasible and when doing so does not adversely affect the rights and freedoms of others.

  In order to assert the right to data portability, the data subject may at any time contact any employee of the KIS kapital-investition-service GmbH.

• g) Right to object

  Each data subject shall have the right granted by the European legislator to object, on grounds relating to his or her particular situation, at any time, to processing of personal data concerning him or her, which is based on point (e) or (f) of Article 6(1) of the GDPR. This also applies to profiling based on these provisions.

  The KIS kapital-investition-service GmbH shall no longer process the personal data in the event of the objection, unless we can demonstrate compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject, or for the establishment, exercise or defence of legal claims.

  If the KIS kapital-investition-service GmbH processes personal data for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing. This applies to profiling to the extent that it is related to such direct marketing. If the data subject objects to the KIS kapital-investition-service GmbH to the processing for direct marketing purposes, the KIS kapital-investition-service GmbH will no longer process the personal data for these purposes.

  In addition, the data subject has the right, on grounds relating to his or her particular situation, to object to processing of personal data concerning him or her by the KIS kapital-investition-service GmbH for scientific or historical research purposes, or for statistical purposes pursuant to Article 89(1) of the GDPR, unless the processing is necessary for the performance of a task carried out for reasons of public interest.

  In order to exercise the right to object, the data subject may contact any employee of the KIS kapital-investition-service GmbH. In addition, the data subject is free in the context of the use of information society services, and notwithstanding Directive 2002/58/EC, to use his or her right to object by automated means using technical specifications.

• h) Automated individual decision-making, including profiling

  Each data subject shall have the right granted by the European legislator not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her, or similarly significantly affects him or her, as long as the decision (1) is not is necessary for entering into, or the performance of, a contract between the data subject and a data controller, or (2) is not authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights and freedoms and legitimate interests, or (3) is not based on the data subject's explicit consent.

  If the decision (1) is necessary for entering into, or the performance of, a contract between the data subject and a data controller, or (2) it is based on the data subject's explicit consent, the KIS kapital-investition-service GmbH shall implement suitable measures to safeguard the data subject's rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and contest the decision.

  If the data subject wishes to exercise the rights concerning automated individual decision-making, he or she may, at any time, contact any employee of the KIS kapital-investition-service GmbH.

• i) Right to withdraw data protection consent

  Each data subject shall have the right granted by the European legislator to withdraw his or her consent to processing of his or her personal data at any time.

  If the data subject wishes to exercise the right to withdraw the consent, he or she may, at any time, contact any employee of the KIS kapital-investition-service GmbH.

9. Legal basis for the processing

Art. 6(1) lit. a GDPR serves as the legal basis for processing operations for which we obtain consent for a specific processing purpose. If the processing of personal data is necessary for the performance of a contract to which the data subject is party, as is the case, for example, when processing operations are necessary for the supply of goods or to provide any other service, the processing is based on Article 6(1) lit. b GDPR. The same applies to such processing operations which are necessary for carrying out pre-contractual measures, for example in the case of inquiries concerning our products or services. Is our company subject to a legal obligation by which processing of personal data is required, such as for the fulfillment of tax obligations, the processing is based on Art. 6(1) lit. c GDPR. In rare cases, the processing of personal data may be necessary to protect the vital interests of the data subject or of another natural person. This would be the case, for example, if a visitor were injured in our company and his name, age, health insurance data or other vital information would have to be passed on to a doctor, hospital or other third party. Then the processing would be based on Art. 6(1) lit. d GDPR. Finally, processing operations could be based on Article 6(1) lit. f GDPR. This legal basis is used for processing operations which are not covered by any of the abovementioned legal grounds, if processing is necessary for the purposes of the legitimate interests pursued by our company or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. Such processing operations are particularly permissible because they have been specifically mentioned by the European legislator. He considered that a legitimate interest could be assumed if the data subject is a client of the controller (Recital 47 Sentence 2 GDPR).

10. The legitimate interests pursued by the controller or by a third party

Where the processing of personal data is based on Article 6(1) lit. f GDPR our legitimate interest is to carry out our business in favor of the well-being of all our employees and the shareholders.

11. Period for which the personal data will be stored

The criteria used to determine the period of storage of personal data is the respective statutory retention period. After expiration of that period, the corresponding data is routinely deleted, as long as it is no longer necessary for the fulfillment of the contract or the initiation of a contract.

12. Provision of personal data as statutory or contractual requirement; Requirement necessary to enter into a contract; Obligation of the data subject to provide the personal data; possible consequences of failure to provide such data

We clarify that the provision of personal data is partly required by law (e.g. tax regulations) or can also result from contractual provisions (e.g. information on the contractual partner). Sometimes it may be necessary to conclude a contract that the data subject provides us with personal data, which must subsequently be processed by us. The data subject is, for example, obliged to provide us with personal data when our company signs a contract with him or her. The non-provision of the personal data would have the consequence that the contract with the data subject could not be concluded. Before personal data is provided by the data subject, the data subject must contact any employee. The employee clarifies to the data subject whether the provision of the personal data is required by law or contract or is necessary for the conclusion of the contract, whether there is an obligation to provide the personal data and the consequences of non-provision of the personal data.

13. Existence of automated decision-making

As a responsible company, we do not use automatic decision-making or profiling.

This Privacy Policy has been generated by the Privacy Policy Generator of the External Data Protection Officers.