All'interno dell'Unione europea, le politiche degli Stati membri nei confronti delle società non quotate in borsa sono meno restrittive. La dipendenza dal percorso è molto ridotta e i legislatori si sono impegnati, sebbene a vari livelli, a garantire la libertà contrattuale. La giurisprudenza della Corte di giustizia europea ha aperto le porte alla mobilità delle società private. In questo contesto, le società private sono diventate la forma preferita di organizzazione aziendale per le start-up e i fondi di private equity. Apparentemente, la società inglese a responsabilità limitata diventerà il principale beneficiario della liberalizzazione nel diritto societario. La concorrenza normativa ha scatenato attività legislative in alcuni Stati membri. Questo documento esamina gli statuti inglesi, olandesi, francesi e tedeschi sulle società private al fine di valutare la competitività dei sistemi nazionali di diritto societario. Approfondimenti sull'economia politica vengono aggiunti al dibattito in corso sullo statuto di una società privata europea.
Parole chiave: diritto societario europeo, concorrenza normativa, riforma del diritto societario privato

SOMMARIO:

I. Introduction - II. Regulatory Competition as Defined by the European Court of Justice - III. Private Companies in Europe - IV. Regulatory Challenges in the Age of Private Company Law Reform - V. The European Private Company Statute - NOTE

I. Introduction

1. Why Focus on Private Company Law Reform? – Choosing a business organisation from a menu of various corporate law options requires a care­ful cost-benefit analysis [[1]]. The enabling char­acter of a national corporate law system is as impor­tant as the agency costs which may arise under certain organisational settings [[2]]. In this context, private companies have come to be the preferred organisational form for start-up businesses [[3]] and private equity funds [[4]]. Within the corporate governance community, the private company is a latecomer. The short term priorities of EU Action Plan for ‘Modernising Company Law and Enhancing Cor­porate Governance’ focus on (non-)regulatory measures applicable to listed corporations [[5]]: A more stringent regulatory framework is suggested for listed companies whereas private com­panies should enjoy a greater amount of flexibility [[6]]. Conversely, one of the leading interna­tional trea­tises on corporate law devotes most of its attention to public companies as their shares trade freely in a public market [[7]]. Only recently, private companies have begun to attract the interest of both, scholars and poli­ticians [[8]]. Member States of the European Union are amend­ing their laws on private companies [[9]] and, in February 2007, the European Parliament urged the Commission to study the prospects of a European Private Company Statute [[10]]. 2. European Company Law – The State of Art. – The current regulatory approach towards company law in the EU has been shaped by devel­opments which appear to be unrelated. Corporate scandals on both sides of the Atlantic have ignited a debate on how to improve corporate governance in listed compa­nies[[11]]. Against the background of the US Sarbanes-Oxley Act, the European Commission has expressed its in­tention to assert a more active role in developing a coherent Euro­pean ap­proach towards cor­porate govern­ance[[12]]. The Com­mission’s Action Plan offers a mix of binding and non-bind­ing policy measures, marking a departure from previous regulatory policy instruments of the Euro­pean Union [[13]]. The diversity of national corporate governance schemes is acknowledged. There is a growing aware­ness that Member States are ambivalent about centralised EU guid­ance on how to devise investor-friendly [continua ..]

II. Regulatory Competition as Defined by the European Court of Justice

1. Basics. – Company mobility has both, entry and exit aspects. Under artt. 43, 48 of the EC Treaty com­panies duly established under the laws of one Member State have an actionable right to move freely within the EU (and to invest wherever they please). In determining the scope of the freedom of establishment from an entry perspective, the ECJ has attacked private international law rules and unduly restrictive creditor protection rules [[24]]. A non-domestic European com­pany may not be denied access to justice for the sole fact that it has been incorporated under the laws of another Mem­ber State. Creditor protection is a valid purpose of Member State com­pany laws. But the commencement of business activities may not be conditioned upon the deposit of funds to satisfy potential creditor claims. Moreover, it is illegal to impose specific liability rules on the director of a non-domestic company which is no longer operative in its country of incorpo­ration. Pseudo-foreign companies are part and parcel of corporate Eu­rope [[25]]: Absent fraud, it is a legitimate aim of corporate planning to circumvent the restric­tive laws of one Member State and resort to the more liberal company law regime of an­other [[26]]. This in­cludes the freedom to demonstrate mobility by consummating a cross-border merger [[27]]. The ECJ’s holdings intuitively invoke an informational model that balances the inter­ests of companies against those of creditors and employees [[28]]: The Member State may limit the freedom of establishment of non-domestic companies for public policy reasons, but must observe the principles of proportionality and non-discrimination. As long as there is enough information on the market, restrictions on company mobility are unacceptable [[29]]. This puts some confidence in creditors’ abilities in dealing with a non-domestic company. It also in­structs (national and EU) lawmakers to analyse cost internalisation aspects of cross-border mobility and regulatory arbitrage [[30]]. Ideally, investors would prefer to establish a company under the least onerous juris­diction and then relocate to the Member State with the most at­tractive business climate. This as­sumes an optimal mix of freedom of contract in the incorpo­ration state and of a non-discrimina­tory approach in the host country. A closer reading of the case law demonstrates that the [continua ..]

III. Private Companies in Europe

1. The United Kingdom. – a. The Private Limited Company. – English 19th century company law did not make a distinction between private and public companies [[45]]. Victorian legislative politics attempted to relegate businesses of small numbers of people to partnerships, but ultimately failed [[46]]. Private companies became increasingly popu­lar after the House of Lords had recognised the choice of small numbers of people to organise their business in a corporate form [[47]]: Converting a privately-owned business into a small private company with limited liability is not illegal per se [[48]]. But important differences in the governance structure of public and private companies remain. aa. A Lighter Regulatory Approach under the Companies Act of 2006[[49]]. – Under section 4 (1) of the 2006 Companies Act[[50]] registered limited companies which do not fulfil the statutory requirements for public limited companies, are private limited com­pa­nies. Private limited companies may either register as companies limited by shares or a le­gal enti­ties limited by guarantee. Part 20 of the 2006 Companies Act makes it illegal for pri­vate lim­ited companies to offer to the public any securities of the company, or to allot or to agree to allot any securities of the company with a view to their offering to the public. Private lim­ited companies are not subject to a statutory minimum capital requirement [[51]]. If a private lim­ited company is limited by shares, the memorandum of association has to specify the con­tri­butions the shareholders will make. There is, however, no statutory duty to pay in the full amount of the authorised capital. Section 643 of the 2006 Companies Act provides for simpli­fied statu­tory mechanism for reducing the company’s capital: The capital of the private com­pany may be reduced if such announcement is accompanied by the director’s statement on sol­vency [[52]]. If a private company is limited by guarantee, the com­mencement of business activi­ties does not depend on shareholders making an immediate fi­nancial contribution. The imme­diate share­holder liability is limited by the amount he has un­dertaken to contribute in the event the com­pany is wound up. Under these circumstances bor­rowing plays an important role in initiating business activities of private limited companies. [continua ..]

IV. Regulatory Challenges in the Age of Private Company Law Reform

1. Imperative National Policy Reasons?. – Reforming national laws on private companies against the background of regulatory competi­tion is a policy strategy based on general welfare consi­derations. Such consid­erations be­tray a penchant for self-defence. It is assumed that a more attractive company law regime will offer sufficient incentives to investors to stay in the country, foregoing the bene­fits of the laws of other Member States. A closer reading of the ECJ’s jurisprudence on com­pany mobility sug­gests that company law reform in the age of regulatory competition is more complicated. Member States may restrict mobility within the European Union on imperative grounds of public interest. This is an argument of both, macroeconomic and microeconomic dimen­sions [[115]]. It leaves sufficient leeway for Member States to pursue their own national poli­cies. But it also invites microeconomic analysis on how regulatory competition affects creditors and work­ers. ‘Foreign’ companies benefiting from intra-European mobility are oper­ating in a different legal environment, producing externalities which the host country is unable to con­tain. The microeconomic effects of regulatory com­petition may there­fore provoke regulatory action, guided by macroeco­nomic consid­erations. 2. Some Practical Experiences – Germany. – Under the influence of the ECJ’s jurisprudence, it is well settled that the law of incor­poration controls the internal affairs of the corporation or private company[[116]]. Nonetheless, Member States may impose restrictions on foreign companies operating on their territories for the benefit of consumer protection[[117]] and transparency on capital markets [[118]]. In this, the major­ity of German courts have resisted the temptation on forcing (discriminatory labels) on the Ger­man branches of English Private Limited Companies: It is for the market to de­tect regulatory differences between the English and German laws on private companies [[119]]. This begs the ques­tion to what extent Member States may still disqualify directors from operating an Eng­lish Private Limited Com­pany as a pseudo-foreign corporation: In the past, German individu­als have been barred from undertaking certain business activi­ties [[120]], only to reappear on the marketplace in the capacity of the director of [continua ..]

V. The European Private Company Statute

1. Regulatory Thrust. – Regulatory comp­e­tition among the various national private company statutes does not come without a cost. Operating a private company in another member state requires a carefully drafted charter and an open-minded judiciary in the host state who is capable of balancing national policy imperatives against the ECJ’s jurisprudence on company mobility. This has given raise to a debate on which companies stand to benefit most from the current state of regulatory competition and, as some would claim, to a lack of legal certainty. There are also political overtones in this debate as the regulatory climate in the Member States oscillates between a liberal approach and rigorous law-making[[142]]. When the European Commission had launched a public consultation on future priorities for the implementation of its action plan many[[143]], many respondents argued for a European Private Company (EPC) Statute, creating more choice for companies without creating any new burdens on them [[144]]. Closer examination suggests that the plea for an EPC Statute is motivated by a concern about transaction costs from cross-border operations. Respondents suggested that a statute would create a truly Euro­pean company which would operate under the same set of rules in every Member State, fa­cilitating joint-ventures and the establishment of foreign subsidiaries. According to the sup­porters of the EPC, the regulatory thrust of the statute would go well beyond a common set of harmonised principles. In order to avoid the current difficulties with pseudo-foreign countries the statute should enact uniform supranational rules with few references to national law. While ensuring flexibility and freedom of contract man­datory rules would apply with respect to protecting creditors and shareholders (including mino­rity shareholders) [[145]]. In 2006, the European Parliament seized the initiative. The Committee on Legal Af­fairs held a public hearing in order to prepare a report on the European Private Company [[146]]. On February 1, 2007 the European Parliament passed a resolution, inviting the Council and the Commission to take legislative action [[147]]. The European Commission has promised to pre­pare yet another feasibility study which is to focus on a simple, user-friendly statute for the benefit of small firms [[148]]. At the same time, the Commissioner for Internal Market and Ser­vices [continua ..]

NOTE