A Legal Options Approach to EC Company Law

2011

The competitiveness of the European economy has been a central point of concern and, with the Better Regulation agenda, the European Commission has raised expectations, especially among SMEs. Better Regulation is seen as a dynamic process that is not just about drafting rules, but also includes the proper implementation and enforcement of the law by the Member States. In general, the justification for the Better Regulation agenda is the claim that regulatory frameworks in the EU are too unwieldy and complex. This is a major handicap on EU competitiveness, crippling European companies in relation not just to their US partners but also to emerging competitors. The question is whether these arguments hold in the field of company law. In the Member States’ national company law agendas the main worries are not related to the US or emerging competitors. After examining the various contributions to our inquiry the authors conclude that the basic element of recent national reforms of compan...

2011

SSRN Electronic Journal, 2000

What role does European Community ("EC") legislation in the corporate law area play within the European Union ("EU")? How much does it shape Member States' corporate laws? And how relevant is it for the corporate governance of EU companies and their management? At first sight, the EC appears to have played and to be playing a central role in shaping EC corporate law, with the high number of directives and regulations covering a wide range of corporate law issues. One might then think that EC institutions have a strong influence upon Member States' corporate laws, whether because they have intervened in the area or because they may do so. Quite to the opposite, EC company law directives and regulations appear to have had very little impact on national

European Scientific Journal, ESJ, 2015

The stakeholder-oriented nature of EU company law can be observed in the case of public or private limited liability companies. In the case of the former, protection of shareholders also comes in the forefront and it can be found through the information model legislation, demanding all relevant information to be presented to the shareholders, on the basis of which the shareholders take on the responsibility for their decisions. This shift of responsibility for protection from legislative provisions in the hands of company law actors can be also observed in the case of provisions addressed to creditors , albeit in limited form. The interplay of the two legislative approaches - information based Anglo-American approach and (minimum) harmonization Continental approach can be seen throughout the body of EU company law, including CJEU case law, but the use of one or another does not always depend on the EU legislative policy. The lack of harmonization of some basic company law principles...

The European Company Statute ("SE Regulation" 2157/2001) offered the possibility to create a new legal form called a European Company, also referred to as an SE (Societas Europaea). The main idea behind the SE Regulation was to make it easier for companies and groups with a "European" dimension to combine, plan and carry out the reorganisation of their business on an EU scale. Council Regulation 2001/2157/EC on the Statute for a European Company (SE) contains not only provisions that are directly applicable in all Member States, but also cross-references to the national legislation applicable to public limitedliability companies as well as several Member State options. As a result the legislation applicable to SEs varies, sometimes considerably, from one Member State to the other. The content of national company law rules applicable to SEs does not seem to be the actual driver for choosing the SE form, however, other rules such as fiscal law, labour law or the requirement on minimum capital could be important in assessing the attractiveness of national provisions applicable to SEs. From the other side a division consists an obvious instrument for restructurings both within and across the borders of a Member State and that a cross-border division whereby an SE will be formed would be easier and less time-consuming than the alternatives that already exist. It is also argued that although there is no legislation at EU level on cross-border divisions, the jurisprudence of the European Court of Justice has already made it possible to carry out a cross-border division when the companies involved are governed by the laws of different Member States. However, the fact that only public limited-liability companies can be transformed into an SE and participate in a merger to set up an SE and the high level of the minimum capital requirement (€120,000) makes the SE form more easily available only for larger entities, but makes it more difficult for smaller entities. Finally, the requirement to conclude the negotiations on employee involvement before the registration of the SE is a practical problem, because it creates substantial delays and uncertainty in the registration of the SE. It is important to note that the SE Directive does not contain specific rules on the role of employees when an SE is activated or structural changes occur after its formation, such as changes to the structure of the SE, or the employment of employees or the acquisition of (part of) another company and its employees. Therefore, it is not clear in all cases how it should be dealt with in practice if a shelf SE is activated. If the law of a Member State is not clear, this law could be interpreted in conformity with the SE Directive. However, the interpretation of the national laws of the Member States in conformity with the SE Directive offers little legal certainty. This study analyzes all the above mentioned issues as a clarification of the SE Regulation and 2001/86/EU Directive could resolve the current legal uncertainty and remove the potential risk of circumvention.

SSRN Electronic Journal, 2000

Accounting, Economics, and Law: A Convivium

European company and financial law and regulation have been evolving over time along with business and financial practices. The resulting ‘social licence’ established by company and financial law and regulation aimed to balance the granted privileges of limited liability and share transferability with the corporate social contribution to economic development and employment. Recent transformations driven by shareholder value and financialisation have been challenging this balance of interests between stakeholders (including employees and shareholders) and society. The EU institutional framework may respond to these challenges by reaffirming the centrality of the enterprise as a going concern. On this basis, corporate accountability and responsibility may be enforced to make ongoing corporate affairs accountable and responsible for their contribution to economy and society. Ongoing corporate capacity to cope with social and environmental responsibilities may be assured along with the ...

Hastings LJ

THE creation of the European Economic Community by the Treaty of Rome' has resulted in far-reaching changes in the economic life of the six Member States.2 These changes have in turn required modifications in the legal framework within which commercial ac- tivities ...

European Business Organization Law Review, 2009

After a slow start, the European Company (Societas Europaea, SE) has become increasingly popular. Beside documenting the growth of this new company type, we examine whether firms choose to incorporate in the SE corporate form because they engage in 'legal arbitrage' by exploiting differences in legal rules between jurisdictions. We specify a number of hypotheses on particular legal arbitrage motives. To validate our hypotheses, we use a broad telephone survey among SE users in Germany as well as a simple country-level regression model based on a unique, hand-collected dataset on SE incorporations. We find strong evidence that firms use the SE to mitigate the effect of mandatory co-determination rules. Establishing a one-tier board structure (in jurisdictions that impose a two-tier structure on their national public companies) and taking advantage of the SE's mobility for tax purposes also seem to be driving SE formations. By contrast, our analysis fails to support the suggestion that firms use the SE to shop for the most favourable national company law to fill the gaps in the SE Regulation.

2000

* The views expressed in this article do not necessarily represent those of the Portuguese Securities Commission (CMVM). Helpful comments on a previous draft were received from Rafaela Rocha and from participants in the seminar on Company Law Reform in OECD Countries organized by the OECD in cooperation with the Swedish Ministry of Industry, Employment and Communications, the Finnish Ministry of Trade and Industry and the