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
Within the European Union, Member State policies on companies not listed at a stock exchange are less restrictive. There is very little path dependence, and lawmakers have pledged, albeit with varying degrees, to assure freedom of contract. The jurisprudence of the European Court of Justice has opened the floodgates for private company mobility. Against this background, private companies have come to be the preferred form of corporate organisation for start-up businesses and private equity funds. Apparently, the English Private Limited Company stands to become the major beneficiary of liberalisation in company law. Regulatory competition has unleashed legislative activities in some Member States. This paper surveys English, Dutch, French and German statutes on private companies in order to assess the competitiveness of national corporate law systems. Insights from political economy are added to the current debate on a European Private Company Statute.
Keywords: European company law, regulatory competition, private company law reform
Articoli Correlati: private company law - europe
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
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 ..]
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 ..]
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 ..]
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 ..]
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 ..]