Overview of TRATON’s Governance in comparison with the Swedish Corporate Governance Code
Swedish companies with shares admitted to trading on a regulated market in Sweden are subject to the Swedish Corporate Governance Code (Svensk kod för bolagsstyrning, the “Swedish Code”). A non-Swedish company listed in Sweden can elect to either apply the Swedish Code, or corresponding local rules and codes where the company’s shares are also listed or where the company has its registered office. Given that TRATON SE (“TRATON”) has its registered office in Germany and its primary listing on the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse), TRATON has elected to apply the German Corporate Governance Code (Deutscher Corporate Governance Kodex, the “German Code”) and not the Swedish Code.
In light of the above, this section aims to provide a high-level summary of TRATON’s governance structure and to report and explain the important aspects in which this governance structure deviates from the Swedish Code.
TRATON is a European Company (Societas Europaea (SE)) incorporated under German law. In contrast to Swedish limited liability companies which have three (3) decision-making bodies in a hierarchical relationship to one another: the shareholders’ meeting, the board of directors and the chief executive officer, TRATON has a two-tier board system comprising the Executive Board (Vorstand) and the Supervisory Board (Aufsichtsrat) in addition to the Shareholders’ Meeting (Hauptversammlung). The Shareholders’ Meeting as the ultimate decision-making body for fundamental governance questions elects shareholder representatives to the Supervisory Board (employee representatives are appointed by the employees), while the Supervisory Board appoints and supervises the members of the Executive Board.
TRATON’s shareholders exercise their direct influence in TRATON through the Shareholders’ Meeting, which is TRATON’s ultimate decision-making body for fundamental governance questions. According to TRATON’s Articles of Association the Shareholders’ Meeting is generally chaired by the chairperson of the Supervisory Board or by another member of the Supervisory Board determined by its chairperson. While the meeting documentation, including the invitation and the minutes, is generally available both in the German and the English language, the Shareholders’ Meeting is held in the German language only. The invitation convening the Shareholders’ Meeting will be published in the German Federal Gazette (Bundesanzeiger), on TRATON’s website and by means of dissemination in the entire European Union (each in the German and the English language). In addition, TRATON will mandate a service provider for the distribution of invitations convening Shareholders’ Meetings and receipt of notices of attendances from shareholders who hold their shares via Euroclear Sweden.
Resolutions of the Shareholders’ Meeting are passed with a simple majority of the votes cast of the shares represented at the Shareholders’ Meeting, unless a higher majority is required by mandatory law or by the Articles of Association. Pursuant to the Company’s Articles of Association, amendments of the Articles of Association require a two thirds majority of the votes cast or, if at least 50% of the share capital is represented, a simple majority of the votes cast. Many resolutions of fundamental importance (grundlegende Bedeutung) require a majority of at least 75% of the votes cast. Such resolutions of fundamental importance include, among others, (i) amendments of the Company’s business purpose (Unternehmensgegenstand), (ii) capital increases and reductions, (iii) issuance of, or authorization to issue, convertible and profit-sharing certificates and other profit-sharing rights, (iv) exclusion of subscription rights as part of an authorization on the use of treasury stock, (v) liquidation of the Company, (vi) any measures to transform the Company under the German Transformation Act (Umwandlungsgesetz) and (vii) approval to conclude, amend or terminate affiliation agreements (Unternehmensverträge).
The Supervisory Board supervises the Executive Board’s administration of TRATON and represents TRATON vis-à-vis the Executive Board members. While the Supervisory Board has no right to assume any management responsibilities or to provide instructions to the Executive Board, certain types of transactions by the Executive Board require approval by the Supervisory Board prior to implementation.
According to TRATON’s Articles of Association, the Supervisory Board comprises twenty (20) members, of which ten (10) members are elected by TRATON’s Shareholders’ Meeting and represent the shareholders (owner side) and ten (10) members are appointed by the employees (employee side). If a vote in the Supervisory Board results in a tie, the chairperson, who must be a shareholder representative, has the deciding vote. According to the German Code, the Supervisory Board shall include what it considers to be an appropriate number of independent members. Supervisory Board members are considered non-independent, in particular, if they have a personal or business relationship with TRATON, the Executive or Supervisory Board, VOLKSWAGEN as TRATON’s controlling shareholder or a company affiliated with VOLKSWAGEN that may cause a substantial and not merely temporary conflict of interest.
The Supervisory Board of TRATON has formed three (3) sub-committees, the Executive Committee (Präsidialausschuss), the Nomination Committee (Nominierungsausschuss) and the Audit Committee (Prüfungsausschuss), all of which comprise members of the Supervisory Board only. The sub-committees have limited decision-making powers, which largely remain with the Supervisory Board, such as issuing proposals to the Shareholders’ Meeting in respect of the election of the statutory auditor or members of the Supervisory Board. The remuneration of the Supervisory Board members largely consists of fixed components paid for membership and chairpersonship in the Supervisory Board and its sub-committees. The Shareholders’ Meeting is to resolve upon the remuneration of the Supervisory Board members at least every four years.
The Executive Board is responsible for managing the affairs of TRATON in accordance with applicable law and has comprehensive power of representation. The Supervisory Board determines the exact number of the members of the Executive Board, which needs to consist of at least two (2) members, and appoints them for a maximum term of five (5) years. The remuneration of the Executive Board members, which is to be oriented towards the promotion of a sustainable and long-term development of the enterprise, is resolved upon by the Supervisory Board, while the Shareholders’ Meeting can only pass non-binding resolutions on the remuneration system of the Executive Board members.
Information on TRATON’s Corporate Governance
TRATON’s Executive Board and Supervisory Board shall declare annually that the recommendations of the German Code have been and are being complied with, or which of the German Code’s recommendations have not been applied or are not being applied and the reasons therefor. This declaration is to be made public onTRATON’s website.
In addition, TRATON is to include a corporate governance report and a non-financial statement in its annual group report (Konzernlagebericht), the non-financial statement to especially include sustainability issues and the environmental impact of TRATON’s operations.
In addition, TRATON is to include a declaration on corporate management (Erklärung zur Unternehmensführung), which is to contain, amongst others, a corporate governance report, and a group non-financial statement (nichtfinanzielle Konzernerklärung) in its annual group report (Konzernlagebericht), the group non-financial statement to especially include sustainability issues and the environmental impact of TRATON’s operations. Under certain circumstances TRATON may elect to exempt itself from submitting its group non-financial statement, while disclosing in its annual group report which parent company makes the group non-financial statement publicly available and where the statement is disclosed.
Important Deviations from the Non-Applicable Swedish Code
Given that TRATON is a European Company (Societas Europaea (SE)) incorporated under German law, TRATON’s above summarised governance structure deviates in important aspects from what the non-applicable Swedish Code (in the form applicable from December 1, 2016) anticipates as corporate basis for its recommendations. In particular, the Swedish Code assumes a one-tier board system in contrast to TRATON’s two-tier board system. As a consequence, TRATON deviates by nature of its corporate structure from several aspects of the Swedish Code’s recommendations. The important aspects in which TRATON’s governance deviates from the Swedish Code are listed hereinafter:
- While the Swedish Code requires that the chairman of the shareholders’ meeting is nominated by the so-called nomination committee, TRATON’s Shareholders’ Meeting is, in principle, chaired by the chairperson of the Supervisory Board (deviation from recommendation 1.3 of the Swedish Code).
- While the Swedish Code requires that a listed company offers simultaneous interpretation of the shareholders’ meeting into other relevant languages than Swedish if such interpretation is financially feasible, TRATON’s Shareholders’ Meetings are held in the German language and not simultaneously interpreted into another language (deviation from recommendation 1.4 of the Swedish Code).
- While the Swedish Code requires that the shareholders’ meeting of a listed company either appoints a nomination committee or decides how the nomination committee should be appointed, the nomination committee of TRATON will be a sub-committee of TRATON’s Supervisory Board consisting of Supervisory Board members only (general deviation from the set-up and tasks of the nomination committee as reflected in recommendation 2 of the Swedish Code).
- According to the Swedish Code, the principle tasks of the board of directors include (i) establishing the overall goals and strategy of the company, (ii) appointing, evaluating and, if necessary, dismissing the chief executive officer, (iii) ensuring that there is an appropriate system for follow-up and control of the company’s operations and the risks to the company that are associated with its operations and (iv) ensuring that there is a satisfactory process for monitoring the company’s compliance with laws and other regulations relevant to the company’s operations, as well as the application of internal guidelines. In contrast, under TRATON’s two-tier board system, the Executive Board is competent for TRATON’s day-to-day business (in its own responsibility) and has comprehensive power of representation, while the Supervisory Board supervises and consults the Executive Board, has limited veto powers (i.a. concerning board composition of selected subsidiaries and specific measures exceeding certain thresholds) and appoints the members of the Executive Board. Thus, the roles of both the Supervisory Board and the Executive Board deviate from that of a Swedish board of directors (general deviation from the set-up and the tasks of the board of directors as reflected in recommendations 3 to 6 of the Swedish Code).
- According to the Swedish Code, the members of the board of directors shall be appointed for a period extending no longer than to the end of the next annual general meeting. In contrast, the shareholder representatives are elected by the Shareholders’ Meeting to the Supervisory Board, unless otherwise stipulated by the Shareholders’ Meeting, for a period up to the end of the Annual General Meeting, which resolves on their discharge (Entlastung) in respect of the fourth (4) fiscal year following the commencement of their term of office, the fiscal year in which the term of office commences not to be included, however, at the longest for a period up to six (6) years (deviation from recommendation 4.7 of the Swedish Code).
- While the Swedish Code requires that the shareholders’ meeting appoints the chairperson of the board of directors, the chairperson of the Supervisory Board, who must be a shareholder representative, is appointed by the Supervisory Board itself (deviation from recommendation 6.1 of the Swedish Code).
- According to the Swedish Code, the board of directors shall evaluate its work annually and report the results to the nomination committee. In contrast, the Supervisory Board assesses the efficiency of its work at least every two (2) years (deviation from recommendation 8.1 of the Swedish Code).
- While the Swedish Code requires that the shareholders’ meeting decide on all share and share-price related incentive schemes for the executive management, the remuneration of the members of the Executive Board (including the decision to implement share and share-price related incentive schemes) is decided upon by the Supervisory Board (deviation from recommendation 9.6 of the Swedish Code).