Método para determinar pendiente

Since the Cadbury Report in 1992, several member states of the European Union have provided national codes on corporate governance of best practice and the European Commission has declared its intention to see these coordinated and converge (Lau-Hansen, 2006). Recently the Commission has relied on non- binding instruments such as recommendations on the European level and self- regulatory measures such as codes of corporate governance or best practice at the national level. It has made recommendations about directors’ remuneration and independence and plans to require a corporate governance statement which should include a reference to the national code and explain any departure from the said code (Lau-Hansen, 2006).

Germany has traditionally adopted a stakeholder model which does not limit its focus to the protection of shareholders. It emphasizes the cooperative relationship among banks, shareholders, boards, managers and employees. German companies have a two-tiered board structure: there is a management board and a supervisory board. The former is in charge of the activities of the corporation while the latter controls the management board, its compliance with the law and articles and business strategies. Members of one board cannot be on the other board. A striking difference to the boards in Anglo-American jurisdictions is that the supervisory board must consist of at least 50% employees. Also in Germany banks can own shares in a firm as well as be the main bank of the same company. Often such banks have representatives on the supervisory board. This system has been in place since the mid-nineties (Barnett & Maniam, 2008).

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Historically corporate governance in Germany has been governed by law as in the US but in the late nineties reforms were provoked by the collapse of many

companies in the steel and iron industry. Difficulties were attributed to failure and neglect of management and those overseeing their activity, particularly

supervisory boards (Du-Plessis, 2003).

The Corporate Governance Code (introduced in 2002 and updated annually) is the centrepiece of Germany’s corporate governance reforms for listed companies. It is intended as a code of best practice where corporations are obliged to disclose whether or not they are in compliance with the Code. It is the hope of the drafters that the financial markets will reward the companies that comply. With the introduction of this code Germany is following a more typically Anglo-American model of the firm (Hutter, Devlin, & Burkard, 2002).

In this respect the German corporate governance system is now similar to the United Kingdom’s. Far-reaching reforms have complemented the traditional stakeholder system with important elements of the shareholder system (Odenius, 2008). At the heart of this reform was the improvement of the overseeing and controlling functions of the supervisory board, stressing the need for transparency (Barnett & Maniam, 2008). The Transparency and Publicity Act 2002 lends the Code additional force. This Act requires each listed company to disclose publicly whether it has complied with the Code during the previous year and whether it intends to do so in the current year. The Act does not force companies to provide reasons for non-compliance (Hutter et al., 2002).

The Netherlands has a similar system to Germany. Germany and the Netherlands are the only two member states of the European Union to have provided a legal basis for the compliance of their national codes; legislation requires listed companies to comply with the national code, and even though the codes themselves allow the companies to deviate, the companies must follow the individual codes’ procedure for doing so (Lau-Hansen, 2006).

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In other European countries the codes have become part of the listing rules of the national stock exchange, which offers a contractual basis to ensure compliance. Where the exchange is the only national exchange, which is the case in several European countries, inclusion in the listing rules does stretch the idea of voluntary adhesion (Lau-Hansen, 2006). Nordic countries have very similar corporate governance regimes. All have a two-tiered company model but it is quite different from Germany’s. The Nordic corporate governance system embraces most of the elements of a stakeholder perspective (Ayuso, Ariño, Garcia Castro, & Rodriguez, 2007). All five Nordic (Sweden, Finland, Iceland, Norway and Denmark) Codes are adopted by the national stock exchange as part of the listing rules and all rely on the “comply or explain” principle. None of the five codes are supported by legislation (Lau-Hansen, 2006).

These Codes require the majority of directors to be independent of management and the company; of this majority two directors must be independent of major shareholders. The only exception is the Danish Code which requires a majority of the directors to be independent of all three (management, company and major shareholders). Independence is defined more narrowly in the legislation (Lau- Hansen, 2006).

After a detailed analysis of European corporate governance codes Wieland (2005) concludes that the codes are distinguishable based on the model of the firm assumed:

Corporate governance codes that focus exclusively on the agency problem and pursue the maximization model offer no entry points whatsoever for a dimension of business ethics that goes beyond the honouring of contracts on the part of the managers. Corporate governance codes, on the other hand, which pursue the economizing or cooperation model, directly and immediately lead to the integration of questions of moral and social responsibility of firms and their engagement in terms of corporate citizenship. Most of the European states follow one of the latter two models (p. 87).

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Wieland’s empirical study of 22 European corporate governance codes found that the majority of European codes orientate themselves to stakeholders and the company. The UK and Switzerland codes are distinguished by their focus on the agency problem and profit maximisation as they emphasise management control and defensive aspects of monitoring. This could explain the observation of Bonn and Fisher (2005) (see below) that codes based on the Anglo-American model need to make an explicit link of ethics to the task of corporate governance while in other regimes this is unnecessary as the underlying ethical orientation

permeates the code.