Wirecard Scandal Puts German Boards on the Spot

(Bloomberg Opinion) -- One more item for Germany's to-do list following the Wirecard scandal: Reassess the country's two-tier board system.

German companies are run by executives on a management board. Above them sits a supervisory board of non-executives, whose explicit duties are appointing, supervising and advising the managers. A longstanding question is whether these supervisory boards properly protect investors' interests.

Wirecard, now accused by auditor Ernst & Young of “an elaborate and sophisticated fraud,” should rekindle the debate.

For starters, the composition of Wirecard AG's supervisory board didn't keep up with the increasing complexity of the company. It had only three members until June 2016, when it grew to five. Being so small, the board chose not to create dedicated committees for audit or risk and compliance until early 2019. When they were created, it was amid mounting pressure on the company following the Financial Times's dogged investigation into its suspect accounting.

Now consider how the supervisory board described its duties. The language of the board's most recent yearly summary (for 2018) was more about observing than taking action. The directors kept themselves “intensively informed” about the “development, position and perspectives” of the group. Their function was to “monitor.” The board performed the “tasks incumbent on it pursuant to the law,” implying a box-ticking mindset.

It took yet more pressure from the FT before Wirecard engaged KPMG for an independent audit last October.

Of course, KPMG's review wasn't completed due to obstruction by Wirecard and partner companies. For hedge fund TCI Fund Management Ltd, that failure also raised questions about the supervisory board's ability to be more than a passive observer. TCI wrote publicly to supervisory board chairman Thomas Eichelmann, asking why he hadn't intervened when it was clear KPMG couldn't finish its job.

As TCI pointed out, the German Stock Corporation Act says supervisory board members have a duty of care to the company, and are liable for damages if they breach that duty. But there is a question here about whether the "supervisory" nature of the role is too weakly defined in the Act and the German corporate code. Wirecard is sadly not the only corporate disgrace in Germany in recent history. It follows the Dieselgate emissions-rigging debacle and the Siemens AG bribery scandal from almost 15 years ago.

For example, the German corporate governance code says supervisory board members can serve for 12 years before their length of service prevents them being deemed independent. Wulf Matthias was in the role at Wirecard for more than 11 years before stepping down in January. True, some chairmen of DAX index constituents have served longer, for example at Deutsche Telekom AG and some family-controlled companies. But it is generally accepted that boards benefit from fresh leadership at least every decade. The equivalent limit in the U.K. corporate governance code is nine years.

To be sure, there's no reason why a two-tier board system can't be effective. But it requires supervisory boards to have a clear remit, to be properly accountable and to attract the best talent with an interventionist mindset. Germany needs to ask whether its current regime really fosters that.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Chris Hughes is a Bloomberg Opinion columnist covering deals. He previously worked for Reuters Breakingviews, as well as the Financial Times and the Independent newspaper.

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