EC COMPANY Law-THE EUROPEAN COMPANY V
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GEORGIA JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW VOLUME 21 1991 NumBER 2 EC COMPANY LAw-THE EUROPEAN COMPANY V. THE EUROPEAN ECONOMIC INTEREST GROUPING AND THE HARMONIZATION OF THE NATIONAL COMPANY LAWS Johan de Bruycker* I. INTRODUCTION Upon the emergence of the European Economic Community (EC or EEC) in 1957,' the Commission of the European Community and the respective business communities realized that the existing differ- ences between the company laws of each signatory nation formed a barrier against the creation of a Common Market as prescribed in the Treaty of Rome. 2 The creation of a Common Market mandates that companies be able to easily engage in transnational transactions * Attorney, DeBandt, Van Hecke & Lagae, Brussels, Belgium. J.D. 1987, Uni- versity of Ghent; LL.M. 1990, University of Georgia. Member, Belgium Bar. I The Treaty of Rome establishing the European Economic Community (EEC) was signed on March 25, 1957 and went into effect on January 1, 1958. The six signatory countries were the Federal Republic of Germany, France, Italy, Belgium, Luxembourg, and The Netherlands. Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 3 [hereinafter EEC Treaty]. 2 The basic principles creating the Common Market as expressed in article 2 of the Treaty of Rome have been reaffirmed in the Single European Act. See 30 O.J. EuR. Com. (No. L 169) 1 (1987) [hereinafter Single European Act]. Article 2 of the EEC Treaty provides: It shall be the aim of the Community, by establishing a Common Market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of ec- onomic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between its Member States. GA. J. INT'L & Comnp. L. [Vol. 21:191 and be able to easily establish new subsidiaries in other EC countries.3 The Commission has taken a twofold approach to achieve these objectives. First, it has tried to harmonize the Member States existing company laws by initiating directives which must be implemented by the national authorities within their legal systems. These directives will be discussed in part II. 4 This harmonization of company law is aimed at realizing the complete freedom of establishment in the EEC.5 Second, to avoid the disadvantages of the harmonization process and to realize a more European outlook, the Commission has proposed two new company forms to be governed mainly by Community law instead of national law. These are the so-called "societas Europaea" or "SE ' 6 and the "European Economic Interest Grouping" or "EEIG." ' 7 The former constitutes the main part of this article, but a discussion of the SE, and especially a discussion of the necessity of the SE, would not be complete unless situated in the context of these other related subjects. Therefore, parts II and III contain a See generally Carreau & Lee, Towards A European Company Law, 9 Nw. J. INT'L L. & Bus. 501 (1989); Vagts & Waelde, The societas Europaea: A future Option for U.S. Corporations?, 29 Bus. LAW 823 (1973-74); Hood, The European Company Proposal, 22 INr'L & Comp. L. Q. 434 (1973); Konstandinidis, The Historical Evolution of the Concept of the European Company and Their Impact on Greek Law, 5-6 HELLENIC REV. INT'L REL. 285 (1989); Dine, The Community Company Law Harmonization Programme, 14 EuR. L. Jua. 322 (1989); Commission, Commission Sets Out Latest Proposalfor European Company Statute, 636 COMMON MKT. REP. 1 (1989); Commission, Company Law in the European Community, 14 EuR. FILE 3 (1989); Storm, Statute of a Societas Europea, 5 Co mON MKT. REP. (1967-68); Sanders, The European Company on its Way, 8 CommON MKT. REP. 29 (1971); Scholten, The European Company, 5 COMMON MKT. REP. 9 (1967); Norton, The European Type Company and its Meaning for the American Enterprise in the European Community, 6 CORNELL INT'L L. J. 111 (1973); Ficker, A Project for a European Corporation, J. Bus. L. 156 (1970); Mann, The European Company, 19 INT'L & COMP. L. Q. 468 (1970); Van Rijn, Faut-il instituerla "soci~t&europ&enne"?, JOURNAL DES TRIuwuAux 377 (1967); M. BnzALY & C. QUIGLEY, COMPLETING THE INTERNAL MARKET OF THE EUROPEAN CoMMUNrrY, 1992 HANDBOOK (1989). 4 See infra Section II. A. I However, harmonization by the use of directives cannot create a completely uniform set of laws since each Member State is free to establish its own laws implementing the directive. The objective of complete freedom of establishment cannot thus be realized through this process. Proposal for a Council Regulation on the Statute for a European Company. 32 O.J. EutR. Comm. (No. C 263) 41 (1989) [hereinafter Proposal for a European Company Regulation]. Council Regulation (EEC) No. 2137/85 of 15 July 1985, on the European Economic Interest Grouping (EEIG). 28 O.J. EuR. COMM. (No. L 199) 1 (1985) [hereinafter EEIG Regulation). 1991] EC CoMPANY LAW brief discussion of the harmonization of the European company laws and the EEIG. II. THE EUROPEAN HARMONIZATION EFFORTS The Commission's efforts to harmonize existing company law is based on Article 54(3)(g) of the EEC Treaty and is an attempt to 8 coordinate each Member State's company laws through directives. This harmonization is necessary to avoid distortions in the market which may result from the differences in each Member State's eco- nomic development and the varying corporate requirements of their national company laws. If no harmonization between the company laws of the different Member States existed, companies would seek to operate from the Member State that has the least restrictive com- pany laws. 9 The United States experience has proven that competition to attract corporate resettlement through lenient corporate laws results in a general lowering of corporate standards. 0 If the European Community does not prescribe minimum standards, by using directives or by introducing compulsory Community company law, then it risks a similar situation as the United States where a "pygmy among the 50 states" dictates the primary policy of American corporate law; sat- isfying big corporations and increasing their revenues." In order to remedy this "Delaware syndrome," harmonization of national com- 2 pany laws appears to be necessary.' Article 54(3)(g) provides: The Council and the Commission shall carry out the duties devolving upon them under the preceding provisions, in particular: (g) by coordinating to the necessary extent the safeguards which, for the protection of the interest of members and others, are required by Member States of companies or firms within the meaning of the second paragraph of article 58 with a view to making such safeguards equivalent throughout the Community. EEC Treaty, supra note 1. 9 Unless at least some harmonization is realized, the "Delaware effect", feared by the Commission and countries with strict and well developed company laws (such as Germany), will be realized. See Dine, The Community Company Law Harmo- nization Programme, 14 Euri. L. REv. 322, 328 (1989). 10For a general article about the predominance of Delaware and the lowering of corporate standards in the United States, see Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YALE L.J. 663 (1974). Id.I at 701. 12 Id. at 700. GA. J. INT'L & COMP. L. [Vol. 21:191 A. The Different Company Directives The seven Directives which have already been adopted by the Council will now be discussed briefly. 3 The First Council Directive of 196814 provides for a system requiring all companies to publicly disclose basic commercial data; i.e. paid capital, balance sheets, profit and loss accounts, and articles of incorporation. The Directive also provides for provisions which protect third parties by limiting the doctrines of constructive notice and ultra vires. 5 The Second Council Directive'6 applies to public companies and lays down minimum requirements for their formation and mainte- nance and the increase and reduction in their capital. A public limited 7 company must exceed 25,000 ECU in minimum subscribed capital.' The Third Council Directive of 197811 regulates internal mergers between public undertakings where the assets and liabilities of the acquired company are simultaneously transferred to the acquiring 11Of the directives proposed by the Commission concerning a European company, five have yet to be adopted by the Council and will therefore not be discussed. These five directives are as follows: the Fifth Directive concerning the structure of public limited companies, 26 O.J. EuR. Comm. (No. C 240) 2 (1983); the Tenth Directive concerning cross-border mergers of public limited companies, 28 O.J. EuR. Com. (No. C. 23) 11 (1985); the Eleventh Directive concerning disclosure require- ments of branches opened in a Member State by certain types of companies governed by the law of another state, 29 O.J. EuR. Comm. (No. C. 203) 12 (1986); the Twelfth Directive concerning the single-member private limited companies, 32 O.J. EuR. Comm. (No. C. 152) 10 (1989); and the Thirteenth Directive concerning takeovers and other general bids, _ O.J. EuR. Comm. (No. .) -(1988). l,First Council Directive of 9 March 1968, on the Coordination of Safeguards which, for the Protection of the Interests of Members and Others, are Required by Member States of Companies within the Meaning of the second Paragraph of article 58 of the Treaty, with a View to Making such Safeguards Equivalent Throughout the Community, 11 J.O. Comm. EuR. (No. L. 65) 8 (1968). See also Commission of the European Community, Harmonization of Company Law in the European Community, Measures Adopted and Proposed, BULL. EuR. Comm. Supp. 4/75 (1975) [hereinafter Harmonization of Company Law].