GERMANY Law and Practice Contributed by: Eva Nase and Kay-Uwe Neumann, POELLATH
form committees for specific tasks, although this is not that common in practice. The same decision-making process applies (more or less) to managing directors of a single- tier system SE and a GmbH. Supervisory Board The supervisory board of an AG, a two-tier sys - tem SE and a KGaA decide by way of resolution, generally with a simple majority. However, the articles of association or the rules of procedure for the supervisory board may foresee qualifying majority requirements. Supervisory board meet - ings shall be held as physical meetings from the statutory starting point. Virtual meetings as well as hybrid forms are per - missible. Supervisory board members not pre - sent in a meeting may not be represented by third persons or other supervisory board mem - bers, but can only give a written voting declara - tion ( Stimmbotschaft ). The meeting has a quo - rum if the majority of members are present – at least three. The supervisory board is entitled to form com - mittees from within itself – eg, an audit com - mittee and a nomination committee. The DCGK expressly requires the formation of these two committees for listed companies. Committees are generally responsible for preparing super - visory board topics and consummating resolu - tions passed by the supervisory board. Some - times, committees are also entitled to resolve instead of the supervisory board. However, this is not allowed in statutorily foreseen topics – eg, decisions concerningthe remuneration and ser - vice contracts of members of the management board. Rules applying to the supervisory board in a two-tier system also have to be adhered to
by the administrative board in a single-tier sys - tem SE.
4. Directors and Officers 4.1 Board Structure Management Board
There is no legally predefined structure for the management board of an AG or two-tier system SE, nor for the managing directors of a single- tier system SE or GmbH. The management board can consist of one or more natural per - sons, unless the articles of association require a minimum number of members; the same applies to the number of the managing directors. Supervisory Board The supervisory board of an AG, KGaA and a two-tier system SE, and the administrative board of a single-tier system SE, has to consist of at least three members, or a higher number up to nine, 15 or 21 members, depending on the reg - istered share capital of the corporation, to be set in the articles of association. If an AG, KGaA or GmbH exceeds the threshold of, generally, 500 German employees, one third of the supervisory board members of the com - pany must be employee representatives – ie, the one-third participation ( Drittelbeteiligungsgesetz or DrittelbG). In this case, the number of supervi - sory board members must be divisible by three. If an AG, KGaA or GmbH and its controlled companies exceed, generally, 2,000 German employees in total, the supervisory board must consist of 50% employee representatives – ie, the parity codetermination ( Mitbestimmungsge- setz or MitbestG). In this case, the supervisory board must consist of at least 12 members, with the exact number increasing depending on the total number of German employees.
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