Minimum requirements for the expertise of the supervisory board
For financial companies, BaFin has defined minimum requirements for the expertise of the supervisory board in several leaflets. The seminars Supervisory Board Financial Companies train these requirements. The standardisation of the supervision of members of administrative and supervisory bodies is part of the process of European harmonisation of supervisory regulations.
Furthermore, the recommendations of the European Banking Authority “EBA- Guidelines on Internal Governance” (GL 44) of 27 September 2011 and the “EBA- Guidelines on the assessment of the suitability of members of the management body and key function holders” of 22 November 2012 were implemented.
The standards defined with the BaFin fact sheets represent minimum requirements for the proof of expertise of a supervisory board. Expertise within the meaning of the German Banking Act (Kreditwesengesetz) means that a member of an administrative or supervisory body is professionally capable of adequately controlling and monitoring the managers of his or her institution, financial holding company or mixed financial holding company and of actively accompanying the development of the institution, financial holding company or mixed financial holding company.
To do this, the person must understand the transactions carried out by the company and be able to assess their risks. Seminars Supervisory Board Financial Enterprises provide an overview of the essential legal regulations with which you must be familiar. In principle, a member does not have to have specialised knowledge, but he or she must be able to recognise the need for advice if necessary.
In the case of merchants within the meaning of §§ 1 ff. HGB (German Commercial Code) and farmers and foresters who are obliged to keep accounts as well as other entrepreneurs within the meaning of § 141 AO (German Fiscal Code), general economic expertise can be assumed on a regular basis. Depending on the size and the business model of the enterprise, these persons may have the required expertise.
Limitation of liability as a supervisory board member
What limitation periods apply to liability as a supervisory board member? Claims for damages against the supervisory board: What do you need to know? A landmark decision on the statute of limitations for liability as a supervisory board was issued by the Federal Supreme Court on 18 September 2018: Supervisory board members are liable longer than the executive board. The ARAG/Garmenbeck ruling already emphasised the supervisory and protective function of the supervisory board in the event of a breach of duty by the executive board. With the BGH ruling of 18 September 2018, the following was established:
