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The Informal Company Law Expert Group (ICLEG) Report on the recognition of the interest of the group October 2016 The Informal Company Law Expert Group (ICLEG) was established by the European Commission (EC) in May 2014 to assist it with expert advice on issues of company law and it held its first meeting on 26 June 2014. The agendas of its meetings are available online at the webpage maintained by the EC1. The members of ICLEG are: 1. ARMOUR John 2. BARTKUS Gintautas 3. CLARKE Blanaid 4. CONAC Pierre-Henri 5. DE KLUIVER Harm-Jan 6. FLEISCHER Holger 7. FUENTES NAHARRO Mónica 8. HANSEN Jesper Lau 9. KNAPP Vanessa 10. LAMANDINI Marco 11. RADWAN Arkadiusz 12. TEICHMANN Christoph 13. VAN HET KAAR Robbert 14. WINNER Martin On 26 January 2015, the EC requested ICLEG to consider the issue of the recognition of group interest. In response to this call one member, Pierre-Henri Conac, was charged with producing a report on behalf of the Group. John Armour provided specific input in the preparation of this report. After consultation within the Group, this report reflects the advice of ICLEG to the EC as to matters that ICLEG believe merit further consideration. 1 http://ec.europa.eu/justice/civil/company-law/index_en.htm 2 Disclaimer: As this paper has been drafted by ICLEG, it solely reflects the views of the Group. It should not in any way be interpreted as representing the views of the European Commission (EC). It should also be noted that the report purports to present a range of ideas that can inspire the EC in its further possible work on group companies. We have not considered whether these ideas are politically feasible and the range of ideas, opinions and recommendations are not necessarily supported by each and every member of the Group, although in general we believe that they are worthy of serious consideration and further consultation with other interested parties. We generally believe that it is important to prepare any legislative initiative by detailed consultation with the affected parties, notably companies, investors, other stakeholders and public authorities, and we recommend that this be done to the greatest extent possible both on the general principles and, once the general principles have been established, on detailed proposals for any action. 3 Table of Contents The Informal Company Law .......................................................................................................... 1 Expert Group (ICLEG) ...................................................................................................................... 1 Report on the recognition of the interest of the group ....................................................... 1 1. Introduction ............................................................................................................................... 5 1.1 Development of the debate on group interest at the EU level ........................................ 7 1.2 Consultation of 2012 on the Future of European Company Law ................................... 8 1.3 Recognition of group interest at the international level for financial institutions 11 2. State of Play ............................................................................................................................. 12 2.1 State of play at EU level.............................................................................................................. 12 2.1.1 Company law ........................................................................................................................................ 12 2.1.2 Financial services ............................................................................................................................... 15 2.1.3 Competition law.................................................................................................................................. 19 2.2 State of play at national level .................................................................................................. 20 2.2.1 Member States that recognize the interest of the group ................................................... 22 2.2.2. Member States that do not recognize the interest of the group ..................................... 24 2.2.3 Evolution in Member States toward recognition of the interest of the group .......... 25 3. Problems ................................................................................................................................... 28 3.1 Problems which could be alleviated by an EU intervention ........................................ 29 3.1.1 Lack of clarity for the directors of the subsidiary and of the parent as to the extent to which they can act in the interest of the group in a cross-border situation ............................ 29 3.1.2 Costs of doing business cross-border ........................................................................................ 29 3.1.4 Obstacles to the cross-border management of financial institutions .......................... 32 3.1.5 Facilitate intra group financing, to reduce the high dependency on bank funding, the aspiration of the Capital Market Union (CMU) programme ................................................................ 34 3.1.6 Reduce legal uncertainties in cross-border cash pooling .......................................................... 35 3.2 Additional advantages which could come from an EU intervention ......................... 37 3.2.1 Shield the parent company against unjustified claims by creditors of the subsidiary 37 3.2.2 Improvement in the exercise of freedom of establishment because harmonisation would support the establishment of subsidiaries.................................................................................... 38 3.2.3 EU intervention on the recognition of the group interest would be consistent with the development of the Common Consolidated Corporate Tax Base ...................................................... 38 4. Solutions ................................................................................................................................... 40 Overview of Recommendations ................................................................................................ 47 4 This paper sets out the opinion of the Informal Group of Company Law Experts (ICLEG) as to issues that the Commission may wish to consider relating to the recognition of the interest of the group. 1. Introduction The Commission’s action plan of December 2012 on European company law and corporate governance announced an initiative on « recognition of the concept of « group interest » (p. 14 et seq.).2 This development is based, inter alia, on the Report of the Reflection Group on the Future of EU Company Law of 2011 which advised that: « The EU Commission should consider, subject to evidence that it would be a benefit to take action at the EU level, to adopt a recommendation recognising the interest of the group. »3 Member States have different and even conflicting approaches regarding the recognition of the interest of the group. Those differences derive, to a certain extent, from their views on the right of the shareholders to influence the management of a company. On the one hand, some Member States want to ensure the integrity of the management of each subsidiary so that it is governed exclusively in the interests of that company. The main goal and effect is to protect minority shareholders and creditors of the subsidiary. This approach also reflects the view that shareholders should not micro-manage the company. This should be done by the directors (or members of the supervisory board) and managers (or members of the managing board) of the subsidiary. They are subject to direct or indirect removal by the shareholders, for or without cause, so that shareholders ultimately decide anyway on the main business decisions of the company. Concomitantly, this group of jurisdictions adopt a rule-based approach to the integrity of the assets of subsidiaries relative to the group as a whole. Within this group, there are two different approaches. First, under what we term the ‘ex ante’ rule-based approach, the rule established in case law in some Member States such as Austria, or Germany in the case of the private limited liability company (Gesellschaft mit beschränkter Haftung or GmbH), flatly prohibits parents from inflicting any immediate damage or disadvantage to the subsidiary. Second, under what we term the ‘ex post’ rule-based approach, some Member States 2 Communication From The Commission To The European Parliament, The Council, The European Economic And Social Committee And The Committee Of The Regions, Action Plan: European company law and corporate governance – a modern legal frame work for more engaged shareholders and sustainable companies, Brussels, COM(2012)740/2, The Action Plan is available at : http://ec.europa.eu/internal_market/company/modern/index_en.htm 3 Report of the Reflection Group on the Future of EU Company Law (‘Reflection Group Report’) (2011), p. 65. The report of the Reflection Group is available at: http:// ec.europa.eu/internal_market/company/modern/. 5 such as Germany, and others which followed its example, have developed a comprehensive body of rules (Konzernrecht) whereby an immediate disadvantage can be inflicted by the parent to the subsidiary provided that it is compensated for the same amount within the financial year.4 Under the 1965 German Companies Act, the case of a “contractual group”, a domination contract (Beherrschungsvertrag)
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