In connection with the so-called rail cartel, the Personnel Committee of the Supervisory Board of ThyssenKrupp AG commissioned two legal opinions to examine in terms of both criminal and stock corporation law the role of Edwin Eichler, member of the Executive Board of ThyssenKrupp AG, based on the findings and records currently available.
One legal opinion was commissioned from criminal law expert Prof. Dr. Volk. In addition, the international law firm Freshfields Bruckhaus Deringer was requested to examine what course of action should be recommended to the Supervisory Board from the viewpoint of stock corporation law. On November 6, 2012 the Personnel Committee informed the Supervisory Board of the findings of the two reports and its decision not to initiate any personnel measures with regard to Mr. Eichler based on the facts currently available.
With regard to the results of the legal opinions ThyssenKrupp AG states:
In his legal opinion of October 29, 2012, Mr. Volk reaches the finding that there is no factual evidence of criminal conduct by Mr. Eichler.
In 2006 there was an allegation relating to possible cartel agreements among rail manufacturers. Although ThyssenKrupp GfT Gleistechnik as a trading organization was not a rail manufacturer then or now, this allegation was investigated immediately by the compliance department of the Services segment together with external cartel law experts. No cartel law violations were identified during the investigation. The executive board of ThyssenKrupp Services AG was informed about the result of this investigation.
Mr. Volk’s legal opinion confirms that the compliance investigation initiated in 2006 found no indications for Mr. Eichler of cartel agreements involving ThyssenKrupp. In addition, the opinion states that it is not evident that Mr. Eichler failed to mistrust the information provided in this investigation and insist on a more extensive investigation.
In its stock corporation law opinion of October 31, 2012, the law firm Freshfields comes to the conclusion that in dealing with the information about cartel agreements at Gleistechnik no breaches of duty by Edwin Eichler were identified. The findings available do not justify any personnel measures by the Supervisory Board.
ThyssenKrupp has been cooperating fully with the investigating authorities since the rail cartel became known in May 2011. As part of this cooperation the relevant documents and information existing in the Group have been made available to the investigating authorities, including the documents regarding the compliance investigation in 2006, of which we now know that the cartelists, showing high criminal energy, deliberately prevented earlier discovery of the cartel through deliberate concealment and systematic lying.
Back in mid-2011 the Group acted firmly in the spirit of zero tolerance and took personnel action. In total 12 employees – several sales managers, a managing director and the responsible business area CEO – had to leave the company. ThyssenKrupp is pursuing compensation claims against these individuals.
In the investigations ongoing since May 2011 claims were raised among individuals belonging to the cartelists that in 2006 Edwin Eichler as CEO of the then ThyssenKrupp Services AG received indications about possible cartel agreements at ThyssenKrupp GfT Gleistechnik and did not adequately follow up these hints. These claims were based entirely on alleged knowledge from hearsay and have not been confirmed in any way in the legal opinions.