Declaration on Corporate Governance 2020
Pursuant to section 161 of the German Stock Corporation Act (AktG), the executive board and supervisory board of a listed stock corporation must declare annually that the recommendations of the “Government Commission on the German Corporate Governance Code” published by the Federal Ministry of Justice in the official section of the Federal Gazette have been and are being complied with or which recommendations have not been or are not being applied and why not.
The declaration shall be made publicly available on the company’s website.
The German Corporate Governance Code (GCGC) contains regulations of varying binding effect. In addition to descriptions of the applicable stock corporation law, it contains recommendations from which companies may deviate; however, they are then obliged to disclose this annually. According to § 161 AktG, deviations from the recommendations of the GCGC must also be justified. In addition, the GCGC contains suggestions from which deviations can be made without disclosure.
The following declaration relates to the period since the last Declaration of Conformity of February 2020 and refers to the recommendations of the “Government Commission on the German Corporate Governance Code” in the version of 07 February 2017 (“GCGC 2017”) as well as in the current version of the GCGC of 16 December 2019 (“GCGC 2020”) applicable since 20 March 2020.
The Management Board and Supervisory Board of YOC AG declare that the recommendations of the “Government Commission on the German Corporate Governance Code” in the version of the GCGC 2017 as well as the GCGC 2020 are generally complied with and have been complied with in the past, with the exception of the recommendations listed below.
The Management Board and Supervisory Board of YOC AG intend to continue to comply with the recommendations of the GCGC 2020 in the future with the following exceptions.
Section 3.8 para. 3 GCGC 2017: The company is of the opinion that the motivation and responsibility with which the members of the Supervisory Board perform their duties are not improved by a deductible. The D&O insurance serves to cover significant own risks of the company and at most secondarily to protect the assets of the members of the executive bodies. The D&O insurance for the Supervisory Board was therefore concluded without a deductible. The previous recommendation in section 3.8 paragraph 3 GCGC 2017 was not adopted in the GCGC 2020. In this respect, the company will not deviate from the recommendations of the GCGC 2020 in the future with the D&O insurance for the Supervisory Board.
Section 4.1.3, sentences 2 and 3 of the GCGC 2017 and Section A.2 of the GCGC 2020: YOC AG has installed appropriate measures based on the company’s risk situation to ensure compliance with legal requirements and internal company guidelines. The existing risk management system is reviewed annually as part of the audit of the financial statements, and there have been no significant objections to date. The Executive Board and the Supervisory Board do not consider the introduction of a special compliance management system to be necessary due to the good experience in the past and the size of the company. The establishment of a protected whistleblower system will also be waived for the time being, as the Executive Board and Supervisory Board do not believe that there is sufficient practical experience with this in Germany. Therefore, for the time being, we will continue to wait and see whether the arguments put forward against a whistleblower system, such as high costs, possible negative effects on the working atmosphere and susceptibility to abuse, actually play a role in practice and which solutions will be established to avoid these points. The Executive Board and Supervisory Board will continue to monitor the developing practice in this regard.
Section 4.1.5 GCGC 2017 and Section A.1 GCGC 2020: An appropriate participation of women in the two management levels below the Executive Board depends on the individual suitability for the respective position. Under this premise, the Executive Board will pay attention to diversity when filling management positions and strive for the appropriate participation of women.
Section 4.2.1 GCGC 2017: According to Section 4.2.1 GCGC 2017, the Management Board shall consist of several persons and have a chairman or spokesman. In the financial year 2020, the Management Board of YOC AG consisted of one person. By agreement between the Supervisory Board and the Management Board, the company will refrain from appointing further Management Board members until further notice, as management-relevant tasks have also been partially transferred to the second management level. The previous recommendation in section 4.2.1 GCGC 2017 was not adopted in the GCGC 2020. In this respect, the company with only one Executive Board member does not deviate from the recommendations of the GCGC 2020.
Section 4.2.2 para. 2 GCGC 2017 and Section G.4 GCGC 2020: The supervisory board shall also take into account the ratio of the remuneration of the executive board to the remuneration of the senior management and the workforce as a whole over time, whereby the supervisory board shall determine how the senior management and the relevant workforce are to be delimited for the purpose of comparison. Such an explicit delimitation has not been made in order not to restrict the economic leeway in salary negotiations.
Section 5.1.2 para. 1 sentence 2 GCGC 2017 and Section B.1 GCGC 2020: Currently, the Supervisory Board is only composed of male members. Membership of the Supervisory Board is primarily based on individual suitability for the Board.
Section 5.1.2 para. 1 sentence 3 GCGC or section B.2 GCGC 2020: The Supervisory Board shall ensure long-term succession planning together with the Executive Board and, according to the GCGC 2020, describe the procedure in the corporate governance statement. In view of the many years of commitment of the current sole member of the Executive Board, Dirk Kraus, as founder of the company, the Supervisory Board has not yet considered it necessary to develop guidelines for succession planning for the Executive Board. The Supervisory Board will continuously review the necessity of succession planning with regard to the specific management structure and needs of the Company and, if necessary, provide for long-term succession planning.
Section 5.1.2 para. 2 sentence 3 GCGC 2017 and Section B. 5 GCGC 2020: The Supervisory Board has not set an age limit for members of the Executive Board. The members of the Supervisory Board are convinced that suitability for the management of a company depends to a large extent on individual performance.
Sections 5.3.1, 5.3.2 and 5.3.3 GCGC 2017 and Sections D.2, D.3, D.4 and D.5 GCGC 2020: The establishment of committees, in particular the establishment of an audit committee and a nomination committee, is difficult to handle due to the size of the Supervisory Board of YOC AG with only three members and does not comply with best practice standards. The increase in efficiency in the audit of financial statements intended by the GCGC 2017 and GCGC 2020 with the establishment of an audit committee would not be achieved, as the audit committee would have to be staffed with almost all plenary members. Likewise, the nomination committee would have to be composed of almost all plenary members, which would not lead to an improved preparation of the supervisory board’s resolution proposals on the election proposals of the shareholders.
Section 5.4.1 para. 2 GCGC 2017 and Sections C.1 sentence 2 and C.2 GCGC 2020: The appropriate participation of women cannot be regulated in advance, as membership is based on individual suitability for the committee. An age limit or a standard limit for the length of membership for members of the supervisory board has not been specified. The suitability of a member of the supervisory board to supervise and advise the executive board and to be an equal contact person for the executive board depends largely on the individual’s performance.
Section 5.4.1 GCGC 2017 and C.1 GCGC 2020: In order to implement the “Act on the Equal Participation of Women and Men in Leadership Positions in the Private Sector and the Public Sector”, which came into force in May 2015, the Supervisory Board of the company has set targets for the proportion of female members on the Supervisory Board and the Executive Board. Beyond fulfilling this legal obligation, the Supervisory Board has not defined any specific targets for its composition. The supervisory board has proposed and will propose to the general meeting for election the candidate it considers most suitable for the position to be filled on the supervisory board after careful consideration and taking into account the specific situation of the company. In this respect, the supervisory board has always implicitly defined a “competence profile” for the vacancy to be filled on the supervisory board and will continue to do so. Of course, the Supervisory Board has been and will continue to be guided in its election proposals by the selection criteria of the German Corporate Governance Code. However, there is no permanent written competence profile for the entire Supervisory Board, also with regard to the size of the Supervisory Board.
Section 5.4.6 GCGC 2017 and Section G.17 GCGC 2020: Chairmanship and membership of committees have not been and are not taken into account in the context of Supervisory Board remuneration, as the Supervisory Board has not formed any committees.
Section 7.1.2 sentence 3 GCGC 2017 and section F.2 GCGC 2020: The company will endeavour to comply with the recommendation that the consolidated financial statements should be publicly accessible within 90 days of the end of the financial year and the interim reports within 45 days of the end of the reporting period. However, the company cannot always guarantee this, as this could only be achieved with significantly increased personnel and organisational effort and thus only at considerable additional cost. The publications are therefore made within the legal and stock exchange deadlines.
The remuneration system currently in place and practised at YOC AG was introduced before the GCGC 2020 came into force.
The structure of the remuneration system is also due to the fact that the composition of the Management Board and the Supervisory Board has remained the same for many years, as well as the close ties between the company and the Management Board and founder Dirk-Hilmar Kraus.
Insofar as the new recommendations of the GCGC 2020 are not yet complied with in this respect, a declaration of deviation is not required. In this respect, the GCGC 2020 does not require any adjustment of existing and ongoing contracts.
The Supervisory Board is currently drafting an Executive Board remuneration system for submission for approval by this year’s Annual General Meeting 2021, which complies with the requirements of the Act Implementing the Second Shareholders’ Rights Directive (Gesetz vom 12.12.2019 – Bundesgesetzblatt Teil I 2019 Nr. 50 19.12.2019 S. 2637 – ARUG II) and which – where possible – is based on the recommendations of the GCGC 2020.
Berlin, February 2021
The Management Board
The Supervisory Board