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Company law and restructuring summary notes
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Lecture 1Company law and restructuring
Introduction
- European company law
- Insolvency law
- Labour law
- Legal and tax aspects
Volume 1 taken to exam
Questions to think about:
What is European company law?
- Set of rules
- By the EU legislator
- More harmonised
- Mot harmonized rules are on public companies
- Mostly attempt to harmonize company law
- Difficult to harmonize due to cultural diversity in the internal market
To what extent is company law in the MS similar?
- Not very similar
- Every ms has its own national law
- Creates diversity
- Differences more for private law companies
- More regulations on public law companies
Where can we find EU company law?
- Source of law is from EU or national legislator
- TEU/TFEU
- Directives, regulations
- Case law
Harmonization creates common grounds int eh EU regulating European
company law
4th question = consultation on the future of eu company law
5th question = what should be the objectives of eu company law?
- Improve the environment in which European companies operate
- and their mobility EU ex improve cross border conversion
- Facilitate the creation of companies in EU
- Setting the right framework for regulatory competition allowing for a high
level of flexibility and choice
- Better protect employees if necessary? = not so much an objective at the
beginning
- Better protect creditors, shareholder and members
, In the beginning protection of creditors, shareholders and members was
very important = the goal in the beginning was to eliminate competition
Competition was not the objective in the beginning
Art 50 TFEU:
- In order to attain freedom of establishment
- The EP and council
- Shall act by means of directives
- The EP the council and the commission shall carry out the duties devolving
upon them under the preceding provisions
- By coordinating safeguards for the protection of the interests of members
and others
- Making safeguards equal throughout the community
- This is the source in which the commission is the initiator for directives
- Implicit to protect stakeholders
- If we have so much freedom the interests of the stakeholders must also be
protected
- To prevent a race to the bottom
- Now it is more about sustainability in EU company law
Harmonisation and modernisation of company law:
- Full harmonisation was the idea at first
- Several directives
- Only a few regulations
- But it become more and more difficult to harmonise ex number of MS
grew, common and civil law traditions
From 1968 onwards:
- Several directives and some regulations were adopted
From 1990 onwards:
- Less and less activities
- More ms
- Ex UK
2001:
- The EC forms the high level group of company law experts
- Report of The high level group of company law experts on issues related
to takeover bids
- Report of the high level group of company law experts on a modern
regulatory framework for company law in Europe
Report on modern regulatory framework:
- The mandate
- Provides recommendations for a modern regulatory eu company law
framework
, - Designed to be sufficiently flexible and up to date to meet companies
needs
- Very different from the safeguards of the stakeholders
- The mandate denotes a shift in the approach the EU could take to
company law
- This approach coordinates the safeguards for the protection of the
interests of members and others
- Making such safeguards equal throughout the union
- However meeting companies needs has not been a prominent feature of
this harmonisation exercise
- The exercise has been much more driven by establishing a proper level of
protection
- In particular shareholders and creditors to prevent a race to the bottom by
MS
The primary purpose of company law:
- Is to provide a legal framework
- For those who wish to undertake business activities efficiently
- In the best way to attain success
- Company law should facilitate the running of efficient and competitive
business enterprises
- And to protect shareholders and creditors
- And eliminate obstacles for cross border activities in EU
- And provide sustainable corporate governance
Lecture 2
Company law and restructuring
Introduction II
- high level group report is not in the material
- at first the idea was to harmonize everything
- however in 2002 the high level group said maybe not harmonize
everything
- the focus shifted to cross border obstacles
modern regulatory framework for company law:
- intro
- general themes
- corporate governance
- capital formation and maintenance
- groups and pyramids
- corporate restructuring and mobility
- the European private company
- cooperatives and other forms of enterprises
- priorities for action
, themes you see come back in the action plan
a plan to move forward follows the same structure…
a plan to move forward:
- communication from commission to the council and the EP
- on modernising company law and enhancing corporate governance in the
eu
- separated in to short middle and long term
- in the reading
- however, from 2005 onward the cross border merger was being made
possible
- cross border conversion happened in 2019 although this was a short term
objective of the high level group report
- plans of the commission was that they came with proposals.
The reflection group:
- not in the reading
- entais cross border mobility = still an important topic
- long term viability = related to corporate governance
- groups of companies
green paper:
- eu corporate governance framework
- a result of scandals and the financial crisis
- it is also a consultation
- topics:
- boards of directors
- shareholders
- monitoring and implementation of corporate governance codes
then came the consultation on the future of eu company law
which followed by the action plan 2012:
- communication from the commission to the EP and the council
- on eu company law and corporate governance
- a modern legal framework
- for more engaged shareholders
- and sustainable companies
- not too ambitious
2013-2014:
- several consultations
- ex on the cross border transfers of registered offices of companies
- and on cross border mergers and divisions
- non-financial information was a bit more difficult
2014:
- Directive on disclosure of non-financial and diversity information
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