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VIPsight

Corporate Governance – portrayed in the individual cultural and legal framework, from the standpoint of equity capital.

VIPsight is a dynamic photo archive, sorted by nations and dates, by and for those interested in CG from all over the world.

VIPsight offers, every month:
transparent and independent current information / comments / facts and figures on corporate governance locally and internationally,

  • written by local CG experts,
  • selected and structured by the Club of Florence,
  • financed by its initiator VIP and other sponsors with a background of “Equity and Advisory” interests.
     

VIPsight International


Article Index

 

VIPsight - July 2012


COMPANIES


Post has less aid to repay

The federal government has now formally submitted an aid recovery request for €298 million, including interest, to Deutsche Post for its earlier financing of civil servants’ pensions. That means the Bonn logistics group has to pay back significantly less aid to Berlin than was first thought. With its high net liquidity the DAX Group can certainly cope with that, say analysts. What had been feared was a repayment of between 500 million and one billion euros. The decision of the European Commission, which had opened the aid proceedings in 2007, was based on a consideration of the civil-service pension burdens in the official price authorizations by the Federal Network Agency. This had led to unlawful aid. Deutsche Post and the federal government have now filed suit against the “inexplicable” decision from Brussels at the European Court. Experience has shown that such proceedings can drag on for long.


Treasury wants half a billion euros from Post

The German tax authorities have announced tax bills for Deutsche Post showing a sales-tax payment in excess of 516 million euros. This relates to disputed payments from the bond business, which is partially exempted from VAT. The decision was the result of a comprehensive examination of complex tax ​​issues and covers the period from 1998 to the entry into force of the revised sales-tax law for postal services on 1 July 2010. The mail and logistics company had already partly made ​​provisions for the payment of arrears, on the size of which the DAX Group remains silent, however. The Post has accepted the decision; the negative impact on net profits in 2012 is estimated by the Bonn company at 265 million. The additional payment is to be made ​​in the third quarter of this year. The German post office is nevertheless still holding to its earnings forecast established for this year. The share price was unimpressed by this decision, though.


Disruptions in Rhön-Klinikum takeover

The billion-dollar takeover of Rhön-Klinikum by Fresenius is facing failure. Shortly before the expiry of the deadline for the bid, Asklepios bought into Rhön with a surprise 5.01 percent (6.9 million shares for about 145 million euros) and could thus thwart the plans of Fresenius. The DAX Group countered the competing hospital operator’s stock purchase on the evening of the same day and also built up its share by an additional 3.6 percent. Whether the minimum acceptance threshold of 90 percent plus one share has been crossed will probably be announced still in July. On the stock market, the shares of Rhön-Klinikum collapsed by 15 percent in the short term, more than ever before. On Wednesday afternoon, 27 June, only 44% of the Rhön shares had been tendered to Fresenius as part of the €3.1 billion bid.


Antitrust dispute at Siemens ended

Siemens and Areva have now definitely managed to stop an EU antitrust case by making binding commitments. The Commission accepted an undertaking by the companies. It had assumed that a competition ban on several core technology markets agreed by the Germans and the French from the time of their nuclear partnership could be contrary to European law. Siemens may now compete with the French group in nuclear power plant technology already after three years, and not as first agreed after eleven years. The two companies had founded the joint venture Areva NP in 2001. In 2009 the Bavarians terminated the nuclear partnership. When there were disputes with Areva about the non-competition clause, Siemens had asked the EU authority for help. Brussels held this agreement to be inappropriate, since it prevented Siemens appearing on markets on which the joint venture had acted only as a reseller of Siemens products.


New arrivals on the TecDax

With SolarWorld and SMA Solar, since the recent decision on 18 June on the composition of the indexes only two companies from the once-dominant solar sector are still listed on the TecDAX. As substitute for Centrotherm, Deutsche Börse decided on Cancom. While the price fall of the last few months is the background for the elimination of the machine manufacturer, BB Biotech is eliminated from the technology segment due to its sales focus. Companies having their registered office not in Germany but in another EU or EFTA State must have at least 33 percent of their commercial turnover at the Frankfurt Stock Exchange, including Xetra, explains Deutsche Börse. Sartorius replaces the Swiss since they no longer meet the criteria for remaining in the TecDAX. The composition of the DAX, MDAX and SDAX is reportedly unchanged. The next scheduled date for the review of the German stock-market indexes is 5 September.

 

 

 


 

 

Buhlmann's Corner


The German Corporate Governance Code gets wrinkles.

On the German Code Commission sit personalities – although no one knows how they come to be there or who chooses them and according to what criteria, but they are personalities and characters, which indeed need not be inherently bad. In these days, they in any case grind off their edges and corners, and the German Code thereby loses its profile.

First a consultation process was invented – without it becoming clear how the opinions incorporated were “evaluated/considered”. If an ageing Code approximates to an “lcd – lowest common denominator” that is not necessarily bad; at any rate it’s human. But the fact is that thereby the laboriously litigated and sweated-over “relevance to actions for rescission” is defined away, or at any rate that someone wants to define it away. Consider the following.

It was clarified that the recommendation to disclose is limited to circumstances that in the opinion of the supervisory board – rather like the Catholic ex-cathedra – would to a shareholder judging objectively be regarded as decisive for his voting decisions. What the shareholder has to think and to regard as decisive is now to be decided by the supervisory board. Thus the risk that voting decisions may be voidable because of an incorrect declaration of compliance is contained.

This is like the proverbial shooting oneself in the foot – there is a Code, a Commission made ​​of flesh and blood, perhaps even with brains and dedication, but corporate governance is defined in the following terms: legal relevance is not wanted, and codes are limited to their effect on paper – along with often outrageous and stultifying statements.

Examples:

Contrary to the Code, we conclude five-year contracts even with new board members, because we want to bind the board for five years. Those who see something rotten here have only themselves to blame!

So one need not wonder when a European Court of Justice finds, after years of litigation, that even a not-yet-fact is already subject to ad-hoc disclosure. That was after Schrempp became such a burden at Daimler that even a common cold was ad-hoc notifiable (as with Ferdinand Piëch at Volkswagen, Porsche, Scania & Co.). The Court rightly castigates on the one hand shareholders who although they ranted at the time did not act on their democratic right to vote, and on the other hand the managements, which simply produce minutes of resolutions only once the story “is over”. The broth must as usual be spooned up by the honest, the reputable managements that now have steroidal legal legs and arms from their ad-hoc duties, so doped are they by advisory lawyers they can barely walk, let alone decide. Compliance and legal affairs, for all their necessity and justification, should once again be what they are: auxiliary sciences, not an ethical Inquisition. Only with dignity and honour can​​ an adaptive enterprise be conducted – as soon as something goes awry, the shareholders should get up and act, instead of waiting for someone else to make the first move and find that global screening would be better.

Now the European Court of Justice has spoken – Bravo! No one knows how this can be implemented in daily business, and everyone is waiting for the ensuing BGH solution – a great help, after seven years and still no result: children may starve and businesses thirst – all that is sustainable there is the uncertainty, whereas what is needed is precisely the opposite!

Think of Chancellor Angela Merkel on the terrace of the German Chancellery, making ​​a hair-raising as well as purposeful statement on bank deposits in October 2008 – had she failed, she would have been overthrown. Or of French President François Hollande, who up to the elections (presidential and parliamentary) distributed expansive promises, only immediately after, supported by “expert opinion”, to do exactly the opposite – even if he is right now, he has still sustainably destroyed the image of “the politician” for a whole generation of voters.

 

 

 


 

 

ACTIONS CORNER


Bayerische Motoren Werke will defend itself vigorously against a fine in the millions from the Swiss Competition Commission (WEKO). The German car builder was faced by the Competition Commission with a penalty in the amount of 156 million CHF because of a massive violation of the antitrust laws. BMW had allegedly impeded direct and parallel imports. It was also stated that BMW had ripped off customers in Switzerland with overpriced prices and banned foreign dealers from exporting cars to Swiss customers. A spokeswoman said that BMW would lodge an appeal before the Federal Court.

 


The Commerzbank is to appeal in London’s bonus controversy. As the bank announced on 20 June in Frankfurt, it has turned directly to the British Court of Appeal.  It considers the first-instance judgment of the UK High Court was wrong and is still convinced that there was no contractually binding commitment present and that the reported bonus amounts were provisional. After a months-long hearing the London court decided the bonus-payment case against the institution at the beginning of May.  It had to pay the 104 former Dresdner Kleinwort employees a total of 52 million euros, despite the €6.5 billion losses by the former Dresdner Bank investment-banking division in 2008.


The European Court of Justice (ECJ) on 28 June announced its decision on ad hoc disclosure. Listed companies must, under certain circumstances, inform shareholders of important and price-relevant events long before the formal decision, especially when it is likely that the event will occur. Even intermediate steps constitute inside information, of which shareholders need to be informed. With this ruling after years of litigation over the departure of Daimler CEO Jürgen Schrempp in 2005 the ECJ not only strengthened the rights of investors; it should have far-reaching implications for information policy. The plaintiffs had accused the company of having announced too late in 2005 that the then chief executive was giving up his post.


E.ON is demanding damages of at least eight billion euros from the federal government for the nuclear phaseout. Germany’s largest energy company had already filed a constitutional complaint with the Karlsruhe Constitutional Court in November 2011 because it saw the decision for a phase-out by 2022 as a disproportionate interference with its fundamental rights. Before the civil courts award damages to the operators, the Karlsruhe judges would first have to establish a violation of the Basic Law. As part of its energy transition, E.ON had to shut down its Isar I and Unterweser nuclear reactors. RWE had filed a constitutional complaint in early March, but to date has still not stated a specific amount of los

 

 

 

 


 

 

Politics


11th Corporate Governance Code Conference in Berlin

Women’s advancement, executive pay and transparency were the dominant themes at the 11th Corporate Governance Code Conference in Berlin. Thus, Kristina Schröder (CDU) promoted her alternative to a rigid quota for women. The Federal Family Minister believes what is needed is a ‘smart quota’ to increase the proportion of women in leadership positions. With the flexi-quota, which each company should set for itself, this could be measured, say on a website. A self-imposed quota would not lead only to single digits, said the politician, referring to the flexi-quotas which the personnel directors of the 30 DAX companies set for themselves in autumn 2011 and were consistently in the mid double-digit range. Despite flexibility, however, a measure of commitment was also needed, which is why Schröder continues to advocate legislation. Otherwise, the EU would impose rigid quotas. Klaus-Peter Müller, Chairman of the Code Commission, continues to oppose legal regulation.


Norbert Lammert, however, took aim at the conference at the hot topic of executive compensation. Although there were limitations on executive pay, these were not being kept to, leading to loss of confidence in the structures of the economic system.  Lammert was concerned with basics: the performance differences in society were not as big as the income differences, and some executive remuneration was no longer comprehensible. Especially the €17 million salary of VW CEO Martin Winterkorn had reignited the debate.  The Federal President went so far as to say that Ferdinand Piëch (75) was acting like an alien, and accused the VW patriarch of violating the rules of good corporate governance. Examples were the age limit for Supervisory Board members and the appointment of Piëch’s wife Ursula to the Volkswagen Supervisory Board. Piëch would exceed the age limit during his tenure, and Ursula Piëch could hardly be regarded as an independent member of the supervisory body. Müller recalled that the subject of executive compensation would be debated again in the future.

 

 

 


 

 

People


Fraport is taking advantage of the age-related retirement of Herbert Mai (54) at the end of September to renew and expand the Board. On the board of the Frankfurt airport operator, on 1 October the post of Personnel and Labour Relations Director will be filled by Michael Müller. He takes responsibility for the Human Resources Department, the Airport Security Division and Central Purchasing. As an insider, Müller knows the company from scratch, says Supervisory Board chair Karlheinz Weimar. The business areas Retail and Real Estate as well as Ground Handling Services will in future be headed by Anke Giesen, newly appointed to the Board. The Supervisory Board appointed both at its meeting on 19 June, the company announced. The new appointments will expand the Board by one person, to five.


MAN is to get a new head of purchasing. Ulf Berkenhagen will take the newly created board spot at the Volkswagen truck subsidiary. Jochen Schumm, previously General Representative for Human Resources at Volkswagen Commercial Vehicles, becomes MAN’s Labour Director. Personnel Director Jörg Schwitalla falls victim, and must step down to make way for the 64-year-old. Schwitalla will in future play an advisory role in the Volkswagen Group. As of 1 September Georg Pachta-Reyhofen will pass on his board position at MAN Truck & Bus to a Scania manager and move to the subsidiary’s Supervisory Board – so that he is Group CEO without an operational department. As a member of the Volkswagen Group Management, he will run the Group’s industrial business with engines or coordinate it.


Irmgard Stippler left the Board of Rhön-Klinikum at the end of May. She was responsible for the University Hospital Giessen-Marburg (UKGM), Materials Management and IT divisions. In future Martin Menger will be in charge of UKGM on the Board. Stippler had already given up its management in early April. The area of Materials Management and IT will in future be in the hands of Volker Feldkamp.


Michael Kieckbusch was appointed by the Supervisory Board at Salzgitter as board member for Personnel and Services with effect from 1 April 2013. The 50-year-old succeeds Peter-Jürgen Schneider, retiring on 31 March 2013 after ten years on the Board. The economics graduate has been working at Salzgitter since 1989 and had been among other things a Board member of Salzgitter Stahl GmbH.


Peter Engelen is leaving TUI at his own request, the travel group announced on 30 May. The longtime personnel director has asked the Supervisory Board to terminate his contract, still in force until August 2013, early, on 31 August this year. He is responsible for the Human Resources, Sustainable Development, Legal Affairs and Compliance sectors. TUI is aiming for a speedy succession.

 

 

 

 


 

 

Campus


Unclear wording for Code adjustments criticized

Advisors to companies complained at a seminar of the German Stock Institute (DAI) that following the most recent changes to the German Corporate Governance Code some formulations were unclear. The Government Commission on 15 May decided some changes and tracked various legislative changes to the Code. It has now confined itself mainly to clarifications, after the recommendations on good corporate governance remained entirely unchanged last year. The Commission also emphasized in its presentation comments by the public from the consultation process first adopted and successfully carried out in 2011. Those interested could express themselves beforehand in a written procedure on concrete proposed formulations. The code changes presented partly differ significantly from the proposals published in January. While at first an objectively reasonable number of independent supervisory board members was to be set out in the regulations, the Supervisory Board must now itself evaluate what it regards as an adequate number of independent members. The Commission has also dropped its original recommendation to introduce variable in addition to fixed remuneration on the Supervisory Board. The DAI seminar went on to debate whether the Supervisory Board could in future consider zero as an appropriate number of independent directors. Also unclear is whether it is consistent with the Code for the Supervisory Board to set a goal of independence, but depart from it in the actual situation.


More changes in executive suites

Every sixth CEO left his post in 2011, Booz & Company has announced.  The fluctuation was present particularly strongly in the German-speaking countries. Thus, the turnover in the biggest companies in Germany, Austria and Switzerland had amounted to 16.7 percent. That was almost twice as many as last year (8.7 percent). On an international comparison, this represents the largest increase, writes the management consultancy. Worldwide, the rate had risen from 11.6 percent to 14.2 percent.  While in good times companies were readier for change, in times of crisis supervisory boards seek continuity at the helm. Because of the good economic situation in Germany, the turnover was almost four percentage points higher than in the rest of Western Europe or the United States. In this country, the health sector at 33 percent and industry at 26 percent were most affected. In the context of the CEO succession study, the 2,500 largest public companies were examined.


Best online annual report comes from Deutsche Bank

Deutsche Bank, BASF and DEUTZ have the best online business reports. The report by Deutsche Bank particularly impressed with its “concept”. BASF was awarded the best possible rating in the category “service”. DEUTZ‘s report was particularly impressive in the field of “technology”. At the bottom of the ranking came the annual reports of HOCHTIEF and GILDEMEISTER (joint 33rd), Brenntag (No. 35) and Douglas (No. 36). This year, 19 of the 30 DAX companies offer a fully-fledged HTML annual report; last year there were 20. In contrast, among the MDAX companies there is a positive trend for HTML annual reports. A total of 17 of the MDAX companies now provide their Annual Report as a full HTML version. Last year there were only 16. A total of 26 companies now tie their own website more strongly into communication on the date of publication of the report; last year there were just 14. This year’s study by Kirchhoff Consult of the 2011 online annual reports of the DAX and MDAX companies also shows that not all the possibilities of an online annual report are yet being used. Thus, for example, links to tables were not available in all reports, say to the explanatory notes, which would make it easier for users to navigate. In this way, information belonging together could be brought together more quickly, says Kirchhoff. 16 of the 78 companies present only a PDF available for download.

 

 

 


 

 

Capital News


Deutsche Börse is launching a share buyback programme. The stock-exchange operator plans to buy back about 100 million euros worth of its own shares on the market by the end of July. As was announced on 29 May, the programme is part of the 200 million euro repurchase approved at the Annual General Meeting on 16 May. Deutsche Börse has been carrying out repurchases for years. The current programme is, however, also connected with the failed merger with NYSE EuroNext. As part of that transaction the Frankfurt stock-exchange operator had envisaged a special dividend of two euros per share, which had evaporated with the failure of the merger.


Deutsche Wohnen has collected €461.1 million through a capital increase,. The subscription price for the up to 43.8 million new shares was 10.50 euros per share, the real-estate company announced on 26 June. The subscription rate was 99 percent, while the remaining shares were sold to institutional investors at €12.30. Three quarters of the sum is to be used to finance the takeover of the Baubecon portfolio of 23,500 dwellings, agreed with Barclays at the end of May, at a price of 1.24 billion euros. Shareholders can purchase three new shares for every seven existing ones.

 

 

 


 

 

Director's Dealings

 

Company Person Function Buy / Sell Total value in Euro Number of shares Datum
BASF SE Margret Suckale MB B 200.395 3.555 12.06.2012
Brenntag William D. Fidler MB B 2.309.672 28.168 26.06.2012
Brenntag Steven Edward Holland MB-Head B 2.541.885 31.000 26.06.2012
Brenntag Jürgen Buchsteiner MB B 5.132.640 62.596 26.06.2012
Brenntag Meifang Buchsteiner
B 5.132.640 62.596 26.06.2012
CANCOM Evelyn Hotter
S 254.679 18.200 25.-26.06.2012
Deutsche Lufthansa Dr. Christoph Franz MB-Head B 188.122 21.480 26.06.2012
Deutsche Lufthansa Carsten Spohr
B 42.250 5.000 24.05.2012
Deutsche Telekom Claudia Nemat MB B 55.722 7.050 01.06.2012
Deutsche Telekom Timotheus Höttges MB B 160.327 20.380 01.06.2012
Deutsche Wohnen Jutta Flach
B 23.625 2.250 25.06.2012
Deutsche Wohnen Uwe E. Flach SB B 73.511 7.001 25.06.2012
Deutsche Wohnen Silvia Kretschmer
B 14.837 1.413 25.06.2012
Deutsche Wohnen Dr. Florian Stetter SB S 48.790 4.009 08.06.2012
Deutsche Wohnen Helmut Ullrich MB S 67.154 10.000 20.-27.06.2012
Dialog Semiconductor Jalal Bagherli MB Exercising an Option 14.957 135.972 01.-11.06.2012
Dialog Semiconductor Jalal Bagherli MB S 2.116.068 135.972 01.-11.06.2012
Dialog Semiconductor Gary Duncan MB Exercising an Option 28.181 22.121 01.-11.06.2012
Dialog Semiconductor Gary Duncan MB S 344.834 22.121 01.-11.06.2012
Dialog Semiconductor Udo Kratz MB Exercising an Option 10.323 93.845 01.-11.06.2012
Dialog Semiconductor Udo Kratz MB S 1.463.375 93.875 01.-11.06.2012
Dialog Semiconductor Martin Powell MB Exercising an Option 3.690 30.750 01.-11.06.2012
Dialog Semiconductor Martin Powell MB S 479.348 30.750 01.-11.06.2012
Dialog Semiconductor Jean-Michel Richard MB B 4.587 9.362 01.06.2012
Dialog Semiconductor Jean-Michel Richard MB Exercising an Option 2.068 18.799 11.06.2012
Dialog Semiconductor Jean-Michel Richard MB S 291.469 18.799 01.-11.06.2012
Dialog Semiconductor Mark Tyndall MB Exercising an Option 18.625 22.531 01.-11.06.2012
Dialog Semiconductor Mark Tyndall MB S 200.170 7.491 01.-11.06.2012
ElringKlinger Dr. Stefan Wolf MB-Head B 19.010 1.000 11.06.2012
Fraport Dr. Stefan Schulte MB-Head S 200.050 5.000 14.06.2012
Fresenius Medical Care Roberto Fuste MB Exercising an Option 570.795 10.469 26.06.2012
Fresenius Medical Care Michael Brosnan MB Exercising an Option 61.229 1.140 05.06.2012
Fresenius Dr. Gerd Krick SB-Head Exercising an Option 983.811 15.000 14.06.2012
GERRY WEBER INTERNATIONAL Udo Hardieck MB B 300.500 10.000 11.06.2012
GERRY WEBER INTERNATIONAL N & A Hardieck GmbH & Co. KG
B 2.542.403 85.639 08.-15.06.2012
GERRY WEBER INTERNATIONAL R + U Weber GmbH & Co. KG
B 239.760 8.000 20.06.2012
GSW Immobilien Dr. Jochen Scharpe SB S 63.204 2.300 02.07.2012
GSW Immobilien Thomas Zinnöcker MB-Head B 162.048 6.000 04.06.2012
GSW Immobilien Andreas Segal MB B 96.600 3.500 01.06.2012
GSW Immobilien Jörg Schwagenscheidt MB B 114.805 4.168 01.06.2012
Klöckner & Co SE Dr. Hans-Georg Vater SB B 18.390 2.213 20.06.2012
KRONES Schawei GmbH
B 748.420 20.000 14.06.2012
Linde Dr. Aldo Belloni MB S 6.693.328 54.689 25.-28.05.2012
Linde Prof.Dr. Wolfgang Reitzle MB-Head S 5.381.658 44.065 25.05.2012
Linde Georg Denoke MB S 1.793.968 14.689 25.05.2012
MorphoSys Jens Hostein MB B 25.550 1.500 07.-08.06.2012
MTU Aero Engines Holding Thomas Dautl SB B 18.111 300 06.06.2012
Münchener Rück Dr. Ludger Arnoldussen MB B 53.085 521 01.-15.06.2012
Münchener Rück Dr. Thomas Blunck MB B 67.554 663 01.-15.06.2012
Münchener Rück Georg Daschner MB B 78.558 771 01.-15.06.2012
Münchener Rück Dr. Torsten Jeworrek MB B 101.993 1.001 01.-15.06.2012
Münchener Rück Dr. Peter Röder MB B 63.785 626 01.-15.06.2012
Münchener Rück Dr. Jörg Schneider MB B 48.808 479 01.-15.06.2012
Münchener Rück Dr. Wolfgang Strassl MB B 44.834 440 01.-15.06.2012
Münchener Rück Dr. Nikolaus von Bomhard MB-Head B 119.110 369 01.-15.06.2012
Münchener Rück Dr. Joachim Wenning MB B 69.185 679 01.-15.06.2012
PSI Dr. Harald Schrimpf MB S 68.666 4.250 30.05.- 01.06.2012
RWE Dr. Rolf Pohlig MB B 57.179 1.988 15.06.2012
RWE Dr. Leonhard Birnbaum MB B 82.259 2.860 15.06.2012
RWE Peter Terium MB-Head B 212.899 7.239 01.06.2012
Salzgitter Rainer Thieme SB-Head B 10.044 280 29.05.2012
SGL CARBON SE Armin Horst Bruch MB S 320.157 10.000 25.05.2012
Süss MicroTec Michael Knopp MB S 104.796 11.400 21.06.2012
Süss MicroTec Michael Knopp MB Exercising an Option 14.820 11.400 21.06.2012
United Internet Norbert Lang MB S 1.104.000 200.000 14.06.2012
United Internet Norbert Lang MB B 1.103.987 81.355 14.06.2012
Wincor Nixdorf Eckard Heidloff MB-Head S 166.015 6.000 14.06.2012
Wincor Nixdorf Eckard Heidloff MB-Head B 168.620 6.000 18.06.2012
XING Dr. Stefan Groß-Selbeck MB-Head Exercising an Option 1.124.000 24.500 30.05.- 12.06.2012

 

 


 

 

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