1. EU Company Law: Introduction and Sources
Doc dr Tatjana Jevremović Petrović

2. General works
Vanessa Edwards, EC Company Law, Clarendon Press, Oxford, 1999.
Stefan Grundmann, European Company Law: Organization, Finance and Capital Markets, Intersentia, Antwerpen – Oxford, 2007.
Еrik Werlauff, EU-Company Law: Common business law of 28 states, 2nd edition, DJØF Publishing, Copenhagen, 2003.
Adriaan Dorresteijn, Tiago Monteiro, Christoph Teichmann, Erik Werlauff, European Corporate Law, second edition, Kluwer Law International, Alphen aan den Rijn, 2009.
Маds Andenas, Frank Wooldridge, European Comparative Company Law, Cambridge University Press, Cambridge, 2009.
Mathias Habersack, Europäisches Gesellschaftsrecht, 3. Auflage, Verlag C.H. Beck, München, 2006.
Marcus Lutter, Walter Bayer, Jessica Schmidt, Europäisches Unternehmens- und Kapitalmarktrecht: Grundlagen, Stand und Entwicklung nebst Texten und Materalien, 5. Auflage, De Gruyter, Berlin – Boston 2012.
Guido Ferrarini, Klaus J. Hopt, Japp Winter and Eddy Wymeersch (eds.), Reforming Company and Takeover Law in Europe, Oxford University Press, Oxford, 2004.

3. Introduction to the EU Law
Founding treaties:
European Coal and Steel Community
European (Economic) Community 1958.
European Atomic Energy Community 1958.
Single European Act (1986)
EU (since Maastricht Treaty 1992)
Nice Treaty 2000
Lisbon Treaty 2007

4. Internal (Single) Market
Main task: Establishing a Common Market, later Single and Internal Market
Goals and tasks:
Establishment of the economic and monetary Union
Implementation of the common policies or activities
Promotion throughout the Community of harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and noninflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.

5. Internal (Single) Market
Its activities include, among other things:
An internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
The approximation of the laws of Member States to the extent required for the functioning of the internal market
Company law – free movement of persons (and capital)
Capital markets and EU Securities Law

6. EU (Company) Law – Sources
Primary sources
Founding Treaties
Conventions between MS
EU and third countries and International Organizations Agreements

7. EU (Company) Law – Sources
Secondary sources
Regulations
Directives
Decisions
Recommendations and Opinions
Other sources
ECJ decisions – not official and formal, but truly influential source of the EU Law. Important interpretative role in company law
Especially important for interpretation of the primary establishment

8. EU Company Law – Primary sources
(Treaty Establishing the EC) Treaty on the Functioning of the EU
Art. 49 (43) Right of the establishment
Free movement of companies to other MS (entering and doing business in another MS)
Art. 50 (44), 2, g
Council and EP acting by means of Directives
Coordination of the safeguards which, for the protection of the interests of members and others, are required by Member States of companies or firms with a view to making such safeguards equivalent throughout the EU
Art. 54 (48) Definitions: company, nationality of the company
Art. 293 (Conventions) – abolished
Art. 352 (308) and 114 (95) – adoptation of the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.

9. EU Company Law – Secondary sources
Directives
Regulations – directly applied in MS laws
Creation of “european” company forms
Recommendations
ECJ Decisions (Segers, Daily Mail, Centros, Uberseering, Inspire Art, Sevic, Cartesio, Vale)
Interpretation of Treaty provisions (most important) and secondary sources
(Conventions) obsolete
Mutual recognition of companies
Cross-border mergers
Cross-border transfer of companies’ seat
Model rules
European Model Company Act

10. EU Company Law There is no systematic European Company Law
Provisions concerning different issues of Company Law

11. EU Company Law Phase 1: From 1968. to 2000. Harmonisation
Effects of the harmonised rules are equivalent in all MS (free choice of form and method of implementarion)
In the begining harmonisation defined provisions for certain issues, later basic principles introduced minimum standards and made possible cross-border activities.
Problems of harmonisation : concept, competence (subsidiarity), legitimacy, lack of modernisation and ability to evolve

12. EU Company Law Phase 2: From Action plan onwards
Harmonisation concerning company’s mobility
Simplification of rules
English law vs. Continental (German) law
Different methods introduced (Recommendation)
Model rules
Competion of national legal systems
Competitiveness vs. Protection of interests

13. EU Company Law
Phase 3: Financial crisis – national protectionism and “fortress Europe”
Responses to financial crisis and wealth funds from non-EU countries
National and EU intervention
In financial sector
Targeting non EU sovereign wealth funds

14. (First) Company Law Directive
Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (Text with EEA relevance) (OJ L 258, , p. 11–19)
(First Council Directive 68/151/EEC of 9 March 1968 on co-ordination 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)
Nullity of the companies
Disclosure and publication of certain informations and documents
Third party responsibility

15. (Second) Company Law Directive
Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 on 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 54 of the Treaty on the Functioning of the European Union, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent Text with EEA relevance
Before: Second Council Directive 77/91/EEC of 13 December 1976 in respect of the formation of public limited liability companies and the maintenance and alteration of their capital (modified on several occasions, most important 2006)
Capital Directive
Minimum capital requirements
Capital modifications (increase and reduction)
Distributions to shareholders
Shares subscribed by company
Redemption of shares
Feasibility study on an alternative to the capital maintenance regime established by the Second Company Law Directive 77/91/EEC of 13 December 1976 and an examination of the impact on profit distribution of the new EU accounting regime, KPMG, January

16. (Third) Company Law Directive
Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies
Before: Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies.
Modifications 2007, 2009
Mergers (national)

17. Fourth Company Law Directive
Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies (OJ L 222, , p. 11–31)
Modifications 1990, 2001, 2003, 2006
Annual accounts
Repealed

18. Proposal for a Fifth Company Law Directive
Proposals from 1972, 1983, 1991.
Structure of public companies and powers and obligations of their organs (internal organization of the company)
Directive abandoned
Corporate governance – new incentives

19. Sixth Company Law Directive
Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the Treaty, concerning the division of public limited liability companies.
Modifications 2007, 2009
Divisions

20. Seventh Company Law Directive
Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ L 193, , p. 1–17)
Consolidated accounts (groups of companies)

21. Eight Company Law Directive
Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54 (3) (g) of the Treaty on the approval of persons responsible for carrying out the statutory audits of accounting documents
Persons responsible for carrying out the statutory audits of accounting documents
Abolished 2006.

22. Accounting directives
Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC Text with EEA relevance

23. Proposal for a Ninth Company Law Directive
Groups of Companies
Abandoned
Exceptions:
Consolidated accounts (7th Company Law Directive)
Disclosure of financial and non-financial information
Already exists for listed companies (IAS reports, disclosure within 13the Company Law Directive, annual statements)
Coordinated group policy
(Prevention of abusive pyramid groups of companies)
Protection of minority shareholders and creditors

24. (Tenth) Directive on cross-border Mergers
Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies [Official Journal L 310 of , p. 1].
Modifications 2007, 2009
Cross-border mergers are possible

25. Eleventh Company Law Directive
Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State (OJ L 395, , p. 36–39)
Branches
Disclosure provisions

26. (Twelfth) Company Law Directive
Directive 2009/102/EC of the European Parliament and of the Council of 16 September 2009 in the area of company law on single-member private limited liability companies (Text with EEA relevance)
Before: Twelfth Council Company Law Directive 89/667/EEC of 21 December 1989 on single-member private limited-liability companies
Single-member companies

27. (Thirteenth) Directive on take-over bids
Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (Text with EEA relevance) (OJ L 142, , p. 12–23)
Takeover bids

28. Proposal for a (Fourteenth) Company Law Directive on transfer of the company’s seat
No official Proposal yet
Unofficial Proposal 1997
Impact Assessment with No-action Scenario adopted
Impact assessment on the Directive on the cross-border transfer of registered office, Commission Staff Working Document, Commission of the European Communities, SEC(2007) 1707, Brussels ;
New incentives: Report of the Reflection Group
ECJ Judgements

29. Shareholders rights
Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies (OJ L 184, , p. 17–24)

30. Business registers
Directive 2012/17/EU of the European Parliament and of the Council of 13 June 2012 amending Council Directive 89/666/EEC and Directives 2005/56/EC and 2009/101/EC of the European Parliament and of the Council as regards the interconnection of central, commercial and companies registers Text with EEA relevance.

31. EEIG
Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG).

32. European Company – SE
Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company
Council Directive 2001/86/EC of 8 October 2001 supplementing the Statute for a European company with regard to the involvement of employees [Official Journal L 294, ].

33. European Cooperative Society
Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) (OJ L 207, , p. 1–24)
Council Directive 2003/72/EC of 22 July 2003 supplementing the Statute for a European Cooperative Society with regard to the involvement of employees (OJ L 207, , p. 25–36)

34. Proposal for a European Private Company
Proposal for a Council Regulation of 25 June 2008 on the Statute for a European Private Company (SPE)
Proposal for a Council Regulation on the Statute for a European Foundation (FE) 2012

35. Remuneration of Directors
2004/913/EC: Commission Recommendation of 14 December 2004 fostering an appropriate regime for the remuneration of directors of listed companies Text with EEA relevance (OJ L 385, , p. 55–59)
Commission recommendation complementing Recommendations 2004/913/EC and 2005/162/EC as regards the regime for the remuneration of directors of listed companies, 2009
Commission Recommendation of 30 April 2009 on remuneration policies in the financial services sector (Text with EEA relevance) (OJ L 120, , p. 22–27)

36. Board of directors structure
EC Commission Recommendation of 15 February 2005 on the role of non-executive or supervisory directors of listed companies and on the committees of the (supervisory) board (Text with EEA relevance) (OJ L 52, , p. 51–63)

37. Future of the EU Company Law
Final Report of the High Level Group of Company Law Experts chaired by Jaap Winter, presented on 4 November 2002
Communication from the Commission to the Council and the European Parliament – Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward (Action Plan 2003)
Report of the Reflection Group On the Future of EU Company Law, 5 April 2011
Communication from the Commission – Action Plan 2012.

38. Future of the EU Company Law
Report of the High Level group:
Facilitating efficient and competitive business in Europe
Modern Company Law making
Disclosure of information as a regulatory tool
Distinguishing types of companies
Increased flexibility vs. tightening of rules
Modern technology

39. Future of the EU Company Law
Phase 2: Action plan of the Commission and ECJ decisions
Policy objectives: Strengthening shareholders rights and third party protection vs. fostering of efficiency and competitiveness of business
Harmonisation concerning company’s mobility and new European company forms.
Simplification of rules
Modern corporate governance:
Disclosure,
Strenghtening shareholders’ rights,
Board of directors (disqualification, remuneration)
Capital rules (modernisation) and creditor protection
Groups of companies
Different methods introduced (Recommendations, model rules)
Competion of national legal systems
Similar goals underlined in the Report of the Reflection Group (2011)

40. Further reading
Report of the High Level Group of Company Law Experts on a Modern Regulatory Framework for Company Law in Europe, Brussels, 4 November
Communication from the Commission to the Council and the European Parliament: Modernising Company Law and Enhancing Corporate Governance in the European Union – A Plan to Move Forward, Commission of the European Communities, Brussels, , COM (2003) 284 final.
Report of the Reflection Group On the Future of EU Company Law, Brussels, 5 April 2011,
Communication from the Commission – Action Plan 2012.
European Commission – Internal market – Company Law – Modernisation of Company Law and Enhancement of Corporate Governance