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European Comparative Company Law

European Comparative Company Law

Author: Mads Andenas; Frank Wooldridge
Publisher: Cambridge University Press
ISBN: 9781107407640
Published In: September 2012
Format: Paperback , 648 pages
Jurisdiction: European Union ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book was first published in 2009. Company law is undergoing fundamental change in Europe. All European countries have undertaken extensive reform of their company legislation. Domestic reform has traditionally been driven by corporate failures or scandals. Initiatives to make corporate governance more effective are a feature of recent European law reform, as are measures to simplify and ease burdens on smaller and medium-sized businesses (SMEs). An increasing EU harmonisation is taking place through the Company Law Directives, and the free movement of companies is also facilitated by the case law of the European Court of Justice on the directives and the right to free movement and establishment in the EC Treaty. New European corporate forms such as the European Economic Interest Grouping (EEIG) and the European Company (SE) have added new dimensions. At a time of rapid development of EU and national company laws, this book will aid the understanding of an emerging discipline.

• Takes an important practical and theoretical approach to European company law

• Covers a field which has previously had little attention recently

• It comes at a time where both EU and national company laws are undergoing massive change and reform

Preface	xiii
Table of Cases	xvi
Table of Legislation	xxi
1. Introduction	1
I. The new European company law	1
II. An outline of this book	3
2. European and comparative company law	7
I. Harmonisation and free movement	7
A. Treaty provisions	7
B. Free movement and the fundamental freedoms: the right of establishment	10
C. Free movement of capital	14
D. The harmonising directives in the field of company law	20
E. Draft legislation	28
F. Methodological problems concerning company law harmonisation	33
II. Comparative company law	41
A. Introductory remarks	41
B. Comparative law and the harmonisation of company law	42
III. Comparative company law and national legal reforms	49
A. Continental reforms	49
B. UK Company law reform and comparative law – DTI’s strategic framework	50
3. Formation of companies	52
I. Introduction	52
II. Formation of private and public companies in the United Kingdom	53
A. Process of formation	53
B. Special rules applicable to public companies	54
C. The memorandum and articles (constitution) of the company	55
D. Constructive notice	58
E. Pre-incorporation contracts	59
F. Transfer proposals in the consultation document ‘Completing the structure’	60
III. Formation of private and public companies in France	61
A. The société à responsabilité limitée (SARL)	62
B. The société anonyme (SA)	64
IV. Formation of private and public companies in Germany	67
A. Formation of private companies	67
B. Special rules applicable to one-man companies	70
C. Liabilities in respect of pre-registration activities	70
D. Formation of an AG	72
E. Special rules relating to the one-man AG	77
F. Liability in respect of pre-incorporation transactions	77
V. Formation of public and private companies in Italy	78
A. Formation of public companies	78
B. Formation of private companies in Italy	82
VI. Formation of private and public companies in Spain	83
A. Formation of private companies in Spain	83
B. Single member private companies	85
C. Liabilities in respect of pre-incorporation transactions	86
D. Simplification of incorporation procedures	86
E. Formation of public companies in Spain	87
F. Liabilities in respect of pre-incorporation transactions	89
VII. Formation of private and public companies in Belgium	90
A. Formation	90
B. Liability in respect of pre-incorporation transactions	92
VIII. Formation of private and public companies in the Netherlands	92
A. Liabilities in respect of pre-incorporation transactions	94
B. Dutch legislation on pro-forma companies	95
4. The types of business organisation	99
I. Introduction	99
II. Public limited liability companies	103
A. The French SAS	105
B. Limited partnerships with shares	107
III. Private companies	109
A. Private companies in the United Kingdom	109
B. Private companies in France	111
C. Private companies in Germany	115
D. Private companies in Italy	119
E. Private companies in Spain	122
F. Private companies in Belgium	124
G. Private companies in the Netherlands	128
H. Proposals for the European Private Company	129
IV. Partnerships	130
A. Civil partnerships	131
B. Silent partnerships and other forms of partnership without legal personality	132
C. General partnerships	135
D. General partnerships in some other European countries	137
E. Limited partnerships	152
F. Special type of limited partnership in Germany and France	159
5. Share (or equity) capital and loan capital	168
I. Equity securities issued by United Kingdom companies	170
II. Equity securities issued by French companies	171
A. Preference shares (actions de préférence)	173
B. Securities giving rights of conversion into shares (titres donnant accès à terme au capital)	174
III. Equity securities issued by German companies	175
A. Private companies	175
B. Public companies: the provisions of Articles 139–141 of the German Aktiengesetz (AktG)	176
IV. Equity securities issued by Italian companies	180
V. Equity securities issued by Spanish companies	185
VI. Equity securities issued by Belgian companies	186
A. Belgian provisions concerning preference shares	187
B. Private companies	187
C. Public companies	188
VII. Equity securities issued by Dutch companies	189
A. Preference shares	190
B. Priority shares	191
C. Warrants	191
VIII. Increase and reduction of capital	192
A. Applicable legal rules in the United Kingdom	192
B. Applicable legal rules in France	195
C. Applicable rules of law in Germany	202
D. Applicable legal rules in Italy	211
E. Applicable legal rules in Spain	218
F. Applicable legal rules in Belgium	222
G. Applicable legal rules in the Netherlands	226
IX. Acquisition, purchase, and redemption by a company of its own shares	230
A. Applicable legal rules in the United Kingdom	230
B. Applicable legal rules in France	233
C. Applicable legal rules in Germany	235
D. Applicable legal rules in Italy	237
E. Applicable legal rules in Spain	239
F. Applicable legal rules in Belgium	241
G. Applicable legal rules in the Netherlands	244
X. Financial assistance for the acquisition of shares	246
A. Loan capital	248
B. The position in the United Kingdom	249
C. The position in France	250
D. The position in Germany	253
E. The position in Italy	256
F. The position in Spain	259
G. The position in Belgium	261
H. The position in the Netherlands	264
6. Management and control of companies	265
I. Introduction	265
II. The position in the United Kingdom	267
A. General considerations	267
B. The appointment, vacation of office and removal of directors	268
C. Powers of directors	269
D. Duties of directors	271
E. The general meeting	275
F. Minority protection	278
III. The position in France	283
A. Managers of an SARL; their powers and duties	283
B. Control over the managers of an SARL	284
C. Position of the members of an SARL	285
D. Different management structures in an SA	286
E. The single board system	287
F. The dual board system	290
G. Directors’ liability	293
H. The position of the shareholders	295
IV. The position in Germany	297
A. The management and control of a GmbH	297
B. The management and control of an AG	307
V. The position in Italy	320
A. Public companies	320
B. Private companies	346
VI. The position in Spain	352
A. Private companies (SRLs)	352
B. Public companies (SAs)	357
VII. The position in Belgium	361
A. Patterns of management and control	361
B. Public companies	361
C. Private companies	367
VIII. The position in the Netherlands	368
A. Management structures	368
B. The regime applicable to ‘large’ companies	369
C. Powers and duties of the management board	371
D. The general meeting	373
E. Rights of minority shareholders	374
7. Business entities governed by Community law	377
I. European Economic Interest Grouping	377
A. History and scope	377
B. Profits of the grouping	380
C. Prohibitions	380
D. Limitation on membership	381
E. Formation and publicity	381
F. Transfer of the official address	383
G. Structure and functioning of the grouping	384
H. Winding up and dissolution	387
I. Legal regime applicable to the grouping	389
J. Implementation	391
II. The European Company	391
A. Introductory remarks	391
B. Capital, shares and bonds	395
C. Principal organs	395
D. Annual accounts and consolidated accounts	400
E. Winding up and other insolvency procedures	401
F. Entry into force	402
G. Employee involvement	402
H. Concluding remarks	410
III. European Cooperative Society	412
IV. The European Private Company	414
8. Employee participation	417
I. Introduction	417
II. The position in the United Kingdom	419
III. The position in France	419
A. Works council	420
B. Personnel representatives	422
C. Trade union delegations	422
D. Purpose of the different institutions	422
E. Employee representatives on the boards of public companies	423
IV. The position in Germany	424
A. Works councils	424
B. Functions of the unions	427
C. Employee representation on the supervisory board	427
D. Codetermination in the coal, iron and steel industry	428
E. Codetermination in certain holding companies	429
F. Codetermination under the Works Councils Act 1952	429
G. Codetermination under the Act of 2004	430
H. Codetermination under the 1976 Act	431
I. Constitutionality of the Codetermination Act 1976	433
V. The position in Italy	435
VI. The position in Spain	436
A. Works councils	436
B. Employees’ meetings	437
C. Trade union section	437
VII. The position in Belgium	437
VIII. The position in the Netherlands	438
A. Works councils	438
B. Employee participation on the supervisory board	440
IX. Community law and employee participation	440
A. Collective redundancy	440
B. Transfer of undertakings	441
C. European Works Councils Directive	442
D. Directive on a general framework for informing and consulting employees in the EC	445
E. Models for employee participation in the draft Fifth Directive	446
9. Groups of companies	448
I. Introduction	448
II. The preliminary draft Ninth Directive	449
III. European Community legislation on groups	450
IV. German Konzernrecht	451
A. Connected companies	452
B. Integration	457
C. De facto groups	458
D. Contractual groups involving private companies	461
V. The new provisions of Italian law concerning groups of companies	467
VI. Definition of groups of companies and related concepts	470
A. The position in the United Kingdom	470
B. The position in France	472
C. The position in Germany	473
D. The position in Italy	473
E. The position in Spain	474
F. The position in Belgium	476
G. The position in the Netherlands	478
VII. Group liability	480
A. Special provisions protecting creditors	484
B. Minority shareholder protection	485
10. Cross-border mergers and acquisitions	491
I. Introduction	491
II. Cross-border mergers	492
A. Influence of the Third Directive	492
B. History and legal basis	493
C. Advantages over the European Company Statute	493
D. Scope	493
E. Cash and shares components of merger consideration	494
F. Relevance of national law	495
G. Requirements governing formation and disclosure	495
H. Location of the registered office: the real seat doctrine	496
I. Independent expert reports	496
J. The protection of shareholders and creditors	497
K. Opposition on public policy grounds	497
L. Scrutiny and publicity	497
M. Consequences of the merger	498
N. Employee participation	499
O. Concluding remarks on the Tenth Directive	504
III. Takeovers	504
A. Introductory remarks	504
B. The Thirteenth Directive on Takeovers	506
11. Investor protection	516
I. Introduction	516
II. Insider dealing	519
III. Disclosure	521
IV. Market manipulation	524
V. Standard of communication	526
VI. Safe harbour	527
VII. Preventive measures	529
VIII. Supervisory authority and sanctions	530
IX. Implementation in the Member States	531
X. Implementation in the United Kingdom	532
XI. Implementation in Germany	534
Index	536