Hit by an Earthquake: How Scandals Have Led to a Crisis in German Corporate Governance: Knowledge@Wharton (http://knowledge.wharton.upenn.edu/article.cfm?

articleid=1695)

Hit by an Earthquake: How Scandals Have Led to a Crisis in German Corporate Governance
Published : March 28, 2007 in Knowledge@Wharton

German corporations have long prided themselves on being above-board, but scandals at some of the country's multinational icons have seriously tarnished that reputation. The scandals allegedly involve hundreds of millions of dollars in bribes, the procurement of prostitutes and misbehavior by some of the country's most senior executives. One corporate figure already convicted was a confidant of former Chancellor Gerhard Schrder and worked with him in a much-publicized attempt to reform the country's rigid labor system. The scandals, implicating officials at Siemens, Volkswagen, Deutsche Bank and other firms, have been so grave that they may prompt German executives to adopt Anglo-American style corporate-governance principles, according to governance and This is a single/personal use copy of Knowledge@Wharton. For business ethics experts at Wharton and in Germany. These multiple copies, custom reprints, e-prints, posters or plaques, please contact PARS International: reprints@parsintl.com P. principles would make the firms more transparent, give investors (212) 221-9595 x407. more say in how the companies are run, and diminish the role of banks, which have long been major players in the operation of German companies by having bank executives sit on corporate supervisory boards (the equivalent of boards of directors in the U.S.). Thomas Donaldson, professor of legal studies and business ethics at Wharton, says the German cases differ somewhat in kind from the corporate debacles that plagued the United States a few years ago, but they have, in their own way, eroded public confidence in corporate executives. "I think they're at a similar level of magnitude for Germany as the Enron-era scandals were for the U.S. And I predict that this will force yet more soul-searching in Germany about corporate governance and especially the issue of corruption." According to Christian Schneider, a German native and managing director of the Multinational Research Advisory Group at Wharton's Center for Human Resources, the rash of unlawful activity is calling attention to the need for Germany to revamp its much-heralded system of "codetermination," which involves what some describe as a cozy relationship between management and labor representatives in making important corporate decisions. Bruce Kogut, professor of strategy at INSEAD, near Paris, says the scandals underscore the fact that German companies have not embraced the trend toward making companies more open and accountable. "German business doesn't really understand what the new rules of the game are," says Kogut. "It's caught between a system they did understand -- a close relationship between banks and corporations, labor unions and government -- and something more Anglo-Saxon, more American. Germany is still far away from that culture." $72 Million in Bonuses All of the scandals have taken their toll on the image of Corporate Germany. In one case, DaimlerChrysler is under investigation by U.S. authorities for maintaining secret bank accounts around the world to bribe officials of foreign governments. The company has acknowledged that it made "improper payments" in Africa, Asia and Eastern Europe and has dismissed or suspended several employees, according to The Wall Street Journal.
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employees, according to The Wall Street Journal. In another case, Josef Ackermann, chief executive of Deutsche Bank, agreed in November 2006 to pay some $4.2 million as part of a settlement with prosecutors on charges he improperly enriched the managers of Mannesmann, an engineering firm that had been acquired by Vodafone, a British telecommunications company. Ackermann was on Vodafone's supervisory board at the time an estimated $72 million in bonuses were paid to the Mannesmann executives. Klaus Esser, Mannesmann's former chief executive, received most of the bonuses after he agreed to a $183-billion takeover by Vodafone. In a settlement with prosecutors, Esser agreed to pay about $1.9 million. A court in Dsseldorf acquitted Ackermann and other defendants in 2004 after a long trial, but a federal court ruled in 2005 that Ackermann and the others had to face a new trial. Despite his settlement with prosecutors, Ackermann remains chairman of the bank's management board. But it has been the Siemens and VW affairs that have garnered the most attention in recent months. At Siemens, authorities are investigating whether company executives created slush funds that could be used to bribe potential overseas customers. The investigation became public in November 2006 when about 200 police officers searched offices and homes of Siemens employees and seized thousands of documents. Prosecutors also have alleged that employees operated a system to embezzle money from Siemens, a mammoth conglomerate that had sales of $115 billion for the fiscal year ended September 30, 2006. Siemens has said it is cooperating with the investigation. Since the police raids took place, the company acknowledged it has uncovered $544 million in suspicious transactions over a period of several years, according to the Journal. Siemens has also said that any wrongdoing was the result of "individual acts." According to the newspaper, however, arrest warrants and witness statements that it reviewed "depict a company where payment of bribes was common and highly organized." The Journal also reported that Siemens' longtime auditor, the German affiliate of accounting firm KPMG, is under investigation for allegedly ignoring these payments on the company's books. KPMG has denied any wrongdoing and is cooperating with authorities, the report states. Among the specific allegations against Siemens' officials: two former managers of the company's power division allegedly paid $78 million in bribes to obtain orders for turbines from Enel, an Italian power company. It also is alleged that Thomas Kutschenreuter, a senior Siemens executive, arranged in 2004 to pay $50 million to Beit Al Etisallat, a Saudi Arabian consulting firm that was once a business partner of Siemens, according to the Journal. Kutschenreuter, whom the newspaper said is cooperating with prosecutors, told authorities he arranged the payment with the support of Siemens' management board and with the knowledge of Klaus Kleinfeld, now the CEO of Siemens, and Heinrich von Pierer, the CEO at the time of the alleged payment. Kutschenreuter reportedly made the arrangement to pay the money after receiving a telephone call from a Saudi businessmen representing Beit Al Etisallat. The caller demanded $910 million in commission payments as part of its former business partnership with Siemens. If Siemens did not pay, the caller threatened to forward documents to the U.S. Securities and Exchange Commission detailing bribes paid on Siemens' behalf to win telecommunications contracts in Saudi Arabia, the Journal reported. Of the $50 million, $17 million was allegedly for past obligations and the remainder was hush money to make the problem disappear. In a separate case, two former managers of Siemens' power division allegedly paid $7.8 million in bribes to obtain orders for turbines from Enel, an Italian power company. The pair, Andreas Kley and Horst Vigener, went on trial in mid-March of this year in Darmstadt, Germany. The men testified that they took part in paying bribes but did not violate Germany's law against bribing public officials in foreign countries because the power company had been privatized. Prosecutors, however, say the Italian government owned a controlling interest in Enel at the time of the bribes. Siemens received more bad news on March 27 in yet another investigation into the company. Johannes Feldmayer, a member of the firm's management board, was arrested by prosecutors in Nuremburg on
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Hit by an Earthquake: How Scandals Have Led to a Crisis in German Corporate Governance: Knowledge@Wharton (http://knowledge.wharton.upenn.edu/article.cfm?articleid=1695)

charges related to payments made to Wilhelm Schelsky, an official of a labor union, known by its German initials as AUB, that was friendly toward Siemens. Prosecutors believe money was paid to AUB through Schelsky to offset the influence of IG Metall, the most powerful industrial union in Germany, according to The Wall Street Journal. Feldmayer denied any wrongdoing. Schelsky was arrested in February on charges of tax evasion. The alleged wrongdoing at Volkswagen involves both company executives and labor-union officials. Dubbed the "perks-and-prostitutes" scandal by the press, VW managers allegedly used company funds to buy the support of labor representatives, known as works councilors, with sex parties, holiday visits with prostitutes and cash bonuses. The VW case has shed light on the sometimes close relationship that exists between management and labor under Germany's consensus-style codetermination management system, which gives organized labor a voice in key corporate decisions. The most recent development in the case occurred on March 5, 2007, when Klaus Volkert, former head of the company's powerful employee works council, was charged with 48 counts of incitement to embezzlement. In January, Peter Hartz, VW's former head of personnel, was found guilty of endorsing the perks-and-prostitutes arrangement. He was given a two-year suspended sentence and fined about $736,000. He confessed that he tried to influence employee decisions by buying the support of Volkert for a plan to restructure and cut costs at the giant automaker. German law requires that works council leaders be consulted on major decisions taken by large corporations. Volkert allegedly demanded and received about $2.5 million in bonuses between 1995 and 2004, along with $786,000 for luxury holidays, clothing, jewelry and phony consulting fees for himself and his girlfriend. Hartz, 65, who resigned from VW in 2005, was a respected national figure. He helped Schrder put together a series of labor reforms in 2002 -- through his chairmanship of the so-called Hartz Commission -- designed to reduce unemployment and stimulate the economy. Comparison with U.S. Scandals Wharton's Donaldson notes that the German scandals differ in some respects from the corporate and accounting-firm wrongdoings that brought shame to Enron, WorldCom, Tyco and other companies, and brought about Sarbanes-Oxley reform legislation, named for two members of the U.S. Congress. "One notable difference is that Enron and some of the other companies essentially fell almost to ground zero," says Donaldson. "While WorldCom has recovered, what happened there was disastrous. In the case of Siemens and VW, we don't have that level of overall destruction to the companies involved." Another difference is that the pattern of alleged corruption in Germany is not as large as it was in America. "The Enron-era scandals involved about 13 companies," Donaldson says. "Following them closely were the investment-banking scandal, the mutual-fund-company scandal and the New York Stock Exchange scandal. We've had a pattern over the last five years of various serious financial and accounting scandals. It remains to be seen whether Germany is going to continue that way." Yet another difference is in the type of scandals in the two countries. In the United States, the Enron-era scandals often involved elaborate ploys to increase a company's stock value, Donaldson notes. Executives benefited from stock options that involved accounting shenanigans. In Germany, by contrast, a lot of the trouble has to do with bribery. "One thing that makes these scandals so profound and shocking -- why they have created the earthquake in Germany that they have -- is that Germans are typically tight on corporate controls," Donaldson explains. "You have some dramatic failures to control in each of these cases. Hundreds of millions of dollars were flowing out the door without being accounted for." Germany's legal system long viewed bribes paid by companies to foreign officials as a cost of doing business. Indeed, German law once permitted companies to write off such payoffs. But that changed when Germany adopted anti-corruption guidelines promulgated in 1999 by the Organization for Economic Cooperation and Development, which were adapted from provisions in the U.S. Foreign Corrupt Practices Act, according to Donaldson.
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Hit by an Earthquake: How Scandals Have Led to a Crisis in German Corporate Governance: Knowledge@Wharton (http://knowledge.wharton.upenn.edu/article.cfm?articleid=1695)

The attitude among German business people that bribery is sometimes necessary still exists, according to Donaldson. "You find it today when you talk with German executives. They say, 'Germans have high standards, but when we're out there in the world, which is rougher and dirtier, it's nave to say we can play by the rules of soccer.' I think that sentiment is much more widely shared in Germany than in Sweden or even the U.S. But when you're paying money to the head of VW's works council over a period of years and when you're providing prostitutes, that strikes at the heart of German integrity." Labor-Management Relations Schneider, the specialist in international labor relations at Wharton, says there is a key governance similarity that contributed, to some degree, to the embarrassing problems at Siemens and VW -- the unusual way that corporate boards are set up in Germany and the influential role played on those boards by organized labor. German company boards have a two-tier structure: a small management board, which reports to and is appointed by a supervisory board. There are three different types of employee representation on company boards. A 1952 law, the Works Constitution Act, provides for one-third employee representation on the supervisory boards of all companies with over 500 employees. The Codetermination Act of 1976 provides notional parity -- that is, 50% shareholders' representatives and 50% employee representatives -- in companies with over 2,000 employees. However, the shareholders' representatives retain a majority in the event of disagreement through a tie-breaking second vote of the supervisory board's chairperson who always hails from the shareholders' side. Up to three members from the labor side on the supervisory board may be trade union officials from outside the company. These controversial "external" representatives are not necessarily connected to the firm and do not directly represent the employees at the company. A third type of employee representation, albeit limited to the coal and steel industry, provides genuine parity on the supervisory board and gives employee representatives a veto over the appointment of the labor director who acts as a de facto representative of the employees on the management board. Today, this special codetermination law only plays a minor role because of the decline of the coal and steel industries. However, since it provides the most extensive form of codetermination ever established in Germany, it is of huge symbolic significance to the trade unions. "Germany is the only country in the European Union with such a far-reaching system," Schneider says. "No other country wants such a system. What you have is trade unionists and employee representatives having a say in crucial decisions, including the appointment and dismissal of members on the management board" says Schneider. "As a result, many German managers defend codetermination to the outside world because they themselves are subject to hiring and firing through the supervisory board. This dual-board system is really blurring the lines and has been criticized by many for creating conflicts of interest. Codetermination was created to provide employee interest representation on a body at the top level of a company. Employee representation is one thing; managerial decision-making in a large corporation is another." Labor-management coziness "is what led to the problem at Volkswagen," Schneider adds. "In order to receive support from the employee representatives on the supervisory board for Volkswagen's request for longer work hours and corporate restructuring, the company's management began to offer money, vacations and bribes to union people to get votes. If Volkswagen didn't have such a system of management, it wouldn't have been forced into playing this kind of game." Chancellor Angela Merkel has appointed a commission to look into the system of codetermination and recommend whether it should be modified. One possible option, supported by the Federal Association of German Employers Confederations, would be to limit employee representation on supervisory boards to one-third. This is the arrangement that was in effect at all large German firms until the 1976 law required 50-50 codetermination for companies with more than 2,000 employees. The employers face strong opposition from union leaders, who actually are demanding an expansion of the country's codetermination system. Meanwhile, and not surprisingly, the commission's report sees no need for substantive changes in the system. Differences in the Scandals

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Joerg Himmelreich, senior transatlantic fellow at the German Marshall Fund in Berlin, says it is important to note what makes scandals at VW and Siemens different. At VW, the alleged wrongdoing represents an abuse of the system of codetermination, which helped propel Germany to its economic miracle of the 1950s and 1960s when its economy rose from the ashes of World War II. Despite the scandal at VW, Himmelreich says a "majority of the German people are not ready to give up this system." The Siemens scandal, on the other hand, grew out of competitive pressure to seek foreign business. In such cases, managers often feel they have no alternative but to pay bribes "to make governments happy," Himmelreich says. Such payments are often needed because infrastructure and utilities projects typically require the permission of government officials. If the system of labor-management codetermination can lead to trouble, Himmelreich adds that dual roles held by top executives can also lead to conflicts of interest and create a climate for wrongdoing. At Siemens, the former CEO, von Pierer, was also the head of the supervisory board. "He had limited interest in clearing up things," Himmelreich says. "This is a main issue at stake: Should the present CEO become the chairman of the supervisory board?" Himmelreich points out that Ackermann ran into legal trouble in his dual role as chief executive of Deutsche Bank and as a member of Vodafone's supervisory board -- an example of the longstanding practice in Germany of bank officials playing key roles in large companies to whom they provide financing. Indeed, the close ties between banks and companies can be as problematic as the relationship between unions and management, according to Wharton's Donaldson. He says Germany has an "insider-controlled, stockholder-oriented" system of governance. German companies have a different set of relations around financing than do U.S. firms. "Banks play a huge role in Germany," Donaldson says. "In light of the movement toward mergers and acquisitions that has been going on for a long time in the U.S. and is now slowly reaching Europe, people are realizing this inside-dominant approach has problems. A hostile takeover in Germany would probably be financed by banks that sit on the boards of German corporations. It's not only an ethical problem; it's just not an efficient system because you have no guarantee that it will be an arm's-length transaction." Impact on the German Psyche INSEAD's Kogut says it would be hard to overstate the impact on the German psyche caused by the difficulties that have befallen icons like Siemens. "The Siemens case is shocking because Siemens is such a major player in Germany and has been for more than a century," says Kogut. "You think of the great German companies, and Siemens is one of them. To find out that they knew about secret accounts that were used for paying bribes is stunning. This is a critical event." Yet Kogut adds that one positive development to emerge from the various scandals is that they are being openly aired in public, which could mark the first step toward meaningful reforms. "To be honest, how clean have German companies -- or any European companies -- been over the past 30 or 40 years in selling products to governments? There have been, historically, a lot of things that people knew were going on, but what we didn't know were the details. Maybe the good news is that the bad details are now coming to light." Donaldson says the scandals have been so embarrassing and detrimental to Germany's self-image that substantial corporate reforms are needed. "Some people feel that so much trust has been squandered among the relevant parties -- investors, corporate management, banks, etc. -- that the old system can't be put back together in a way that would create good governance." Any reforms that are undertaken by the government and corporate sectors would probably not attempt to replicate the Anglo-American model, he adds. "But it's almost inevitable that Germany will adopt some Anglo-American elements, especially in giving more voice to stockholders and to outside investors -investors other than banks." The recent scandals also cry out for beefing up the role of audit committees and for changes in financial-reporting requirements, according to Donaldson. "In 2007, we still have a Germany with an
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insider-controlled, shareholder-oriented system. The system tends to do pretty well for large shareholders and the people who run corporations; it does not do well for the average investor. Stockholders have much less say in the German system than in the Anglo-American system. I still think the general perception is that there's a crisis at this point in corporate governance in Germany."
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