4. In the late 1960s, even though the discussions about the interpretation of art. 54(3(g) were not resulting in a common view, the first proposals for harmonisation directives were prepared. The Commission had decided that large scale comparative research could usefully contribute to a better insight in the issues involved and to the solutions to be adopted Several research studies were assigned to the most famous company law professors of Europe: Wurdinger, on the structure of the company, later the fifth directive, Van Ommeslaghe, on groups of companies,B. Goldman on the mutual recognition of foreign companies, or later Pennington, on takeovers. One should not forget to mention the group that took the project for European Company Statute under its wings, i.e. P. Sanders, E. Arendt, E. von Caemmerer, L. Dabin G. Marty, and G. Minervini I5 From these early works a long series of directive proposals emerged. They have been the subject of ample analysis and study. However, these are not the only instruments that should be taken into account. In addition, the Community has adopted one regulation, on the EEIG, the European Economic Interest Group, that contains a substantially different approach to company law matters. Another major regulation is being prepared about the Societas Europaea, " the European company", the first proposal having been published in 1970 7 2. The Ambit of the Company Law Directives 5. The directives are generally applicable to public companies limited, or to the equivalent forms in the member states(Societe anonyme, societa per azioni, naamloze vennootschap, Aktiengesellschaft, etc). These are by far the largest business enterprises and the impact of their activity on the internal market is the widest. However, de facto, the use of the different company forms is quite divergent among the member states: at the moment the first directives were published Germany had only about 1000 Aktiengesellschaften. At present their number has increased abstantially but is still considerably lower than what appears to be their number of equivalent forms in the other member states 12 See the paper by HOUIN, R 'Le regime juridique des societes dans la Communaute Economique Europeenne Revue trimestrielle de droit europeen, 1965, 1I and RODIERE,R. 'L'harmonisation de legislations europeennes dans le cadre de la C.e. E., Revue trimestrielle de droit europeen, 1965, 336 See B. GoLDMAN, 'La reconnaissance mutuelle des societes dans la CEE, Etudes offertes a Julliot de la Morandiere. 1964.191 I According to Commission des Communautes europeennes, Projet d'un statut des societes anonymes europeennes, Serie Concurrence, 1967, n6, preface See the books by LUTTER, EDWARDS and WERLAUFF in nt. 1 See Voorstel voor een Statuut voor Europese Naamloze Vennootschappen, submitted to the Council on 30 une 1970, Bulletin, 8, supplement, 1970; and Amended proposal for a Regulation"Statute for European Companies", Bulletin of the European Communities, Suppl. 4/75.See further nr. 42 for the most recent stage of development 18 For comparative figures, see WYMEERSCH, in"A Status Report on Corporate Governance Rules and Practices in Some Continental European States' in Comparative Corporate Governance. The state of the art ard emerging research, HOPT, K.J., KANDA, H, ROE, M.J., WYMEERSCH, E, PRIGGE, S(eds ) Clarendon Press Oxford, at 1049. Recent figures about Germany: HANSEN, H, AG Report, Zum Jahresende 2000: 10582 Aktiengesellschaften'in AG, 2001, 3, p. R67 e Financial Law institute. Universiteit Gent 2001
© Financial Law Institute, Universiteit Gent, 2001 5 4. In the late 1960s, even though the discussions about the interpretation of art. 54 (3)(g) were not resulting in a common view12, the first proposals for harmonisation directives were prepared. The Commission had decided that large scale comparative research could usefully contribute to a better insight in the issues involved and to the solutions to be adopted. Several research studies were assigned to the most famous company law professors of Europe: Würdinger, on the structure of the company, later the fifth directive; Van Ommeslaghe, on groups of companies13, B. Goldman on the mutual recognition of foreign companies 14, or later Pennington, on takeovers. One should not forget to mention the group that took the project for a European Company Statute under its wings, i.e. P. Sanders, E. Arendt, E. von Caemmerer, L. Dabin, G. Marty, and G. Minervini. 15 From these early works a long series of directive proposals emerged. They have been the subject of ample analysis and study16. However, these are not the only instruments that should be taken into account. In addition, the Community has adopted one regulation, on the EEIG, the European Economic Interest Group, that contains a substantially different approach to company law matters. Another major regulation is being prepared about the Societas Europaea, "the European company", the first proposal having been published in 197017. 2. The Ambit of the Company Law Directives 5. The directives are generally applicable to public companies limited, or to the equivalent forms in the member states (Société anonyme, società per azioni, naamloze vennootschap, Aktiengesellschaft, etc). These are by far the largest business enterprises and the impact of their activity on the internal market is the widest. However, de facto, the use of the different company forms is quite divergent among the member states: at the moment the first directives were published, Germany had only about 1000 Aktiengesellschaften. At present their number has increased substantially but is still considerably lower than what appears to be their number of equivalent forms in the other member states18. 12 See the paper by HOUIN, R. ‘Le regime juridique des sociétés dans la Communauté Economique Européenne’, Revue trimestrielle de droit européen, 1965, 11 and RODIÈRE, R. ‘L’harmonisation de legislations européennes dans le cadre de la C.E.E.’, Revue trimestrielle de droit européen, 1965, 336. 13 P. VAN OMMESLAGHE, ‘Les groupes de sociétés’, Revue pratique des sociétés, 1965, n° 5280, 153-252. 14 See B. GOLDMAN, ‘La reconnaissance mutuelle des sociétés dans la CEE’, Etudes offertes à Julliot de la Morandière, 1964, 191. 15 According to Commission des Communautés européennes, Projet d'un statut des sociétés anonymes européennes, Série Concurrence, 1967, n° 6, préface. 16 See the books by LUTTER, EDWARDS and WERLAUFF in nt. 1. 17 See Voorstel voor een Statuut voor Europese Naamloze Vennootschappen, submitted to the Council on 30 June 1970, Bulletin, 8, supplement, 1970; and Amended proposal for a Regulation “Statute for European Companies”, Bulletin of the European Communities, Suppl. 4/75.See further nr. 42 for the most recent stage of development. 18 For comparative figures, see WYMEERSCH, in ‘A Status Report on Corporate Governance Rules and Practices in Some Continental European States’ in Comparative Corporate Governance. The state of the art and emerging research, HOPT, K.J., KANDA, H., ROE, M.J., WYMEERSCH, E., PRIGGE, S. (eds.), Clarendon Press, Oxford, at 1049. Recent figures about Germany: HANSEN, H., AG Report, ‘Zum Jahresende 2000: 10582 Aktiengesellschaften’ in AG, 2001, 3, p. R67
In several member states the private company limited can be considered as largely equivalent to the public company, except that its shares are not freely transferable. Other states consider this pe of company as being more akin to the partnerships, although members enjoy limited liability Ithough the internal organisation might be different, the external structure and behaviour of these companies is in fact largely identical to that of the public companies limited. Therefore, there were good arguments to treat both types of companies on the same footing The factual situation in the different directives is quite diverse: while the first, the fourth, the seventh and the eleventh directives are applicable both to the public and the private company types, the second, third, sixth apply only to the public company limited The 12th on the single -membe pany applies only e private limited company, as this is the only form in which a one-man company is usually allowed In fact one should put a question mark beside the above used distinction between public and private companies, as being equivalent to the continental divide between SA en Sarl. In the approach followed in the UK, the former are subspecies of the same single company form, the company ares Inder the continental concept, the Sa and the Sarl, although having many common features, are generally considered different company types. Moreover the differences between the Sa and the Sarl, or what generally are considered equivalent national forms, vary appreciably from state to state The issue is far from merely technical Member states have had ambivalent feelings as to the extension of some of the harmonised European rules to company types that are not explicitly viewed by the directives. Some member states have taken an activist stand, extending the european principles to all company types, at least those with limited liability. So e.g. is part of the capital formation and protection rules that are applicable to the French Sa also applicable to the French Sarl. Belgium has taken a more radical stand it applies the rules equally to both Sa and Sprl, and some of them even to the co-operative societies, although these are considered out of the scope of the harmonisation in other states. Therefore, the effects of the European harmonisation often extend beyond the horizon of the sa One can also understand why some member states that are critical of some of the European rules, will resist any attempt to extend the harmonisation across the board to all companies with limited liability When the Sarl has not been submitted to all of the rules of the European harmonisation, this company type has played the role of a shelter, or some will say, of an evasion technique. The exemption of the Sarl from the cumbersome rules of the Second Directive on financial assistance (art. 23)has opened up the possibility to organise useful transactions, such as management buy outs by interposing a Sarl, there where the deal would be forbidden if done directly by an SA. This form of competition between company types deserves special mention. In some states it has been even more evident between the co-operative societies and the Sarl, as both were, for practical purposes This is especially the case with the extension of the Second directive to the private companies limited,a proposal that has been voiced in Germany as a technique to deal with the issues dealt with in the Centros case See LUTTER, M. "Das Europaische Unternehmensrecht im 21. Jahrhundert,, ZGR 2000, 1 and HIRTE, Die aktienrechtliche Satzungsstrenge: Kapitalmarkt und sonstige Legitimationen versus Gestaltungsfreiheit, ZGR Sonderheft 13, 1998, 71-72 20 See WYMEERSCH, Kritische benadering en synthese van de besproken vennootschappen'in Miskende vennootschapsvormen, Koninklijke Federatie van Belgische Notarissen, Kluwer, Antwerpen, 1991, 153-180 e Financial Law institute. Universiteit Gent 2001
© Financial Law Institute, Universiteit Gent, 2001 6 In several member states the private company limited can be considered as largely equivalent to the public company, except that its shares are not freely transferable. Other states consider this type of company as being more akin to the partnerships, although members enjoy limited liability. Although the internal organisation might be different, the external structure and behaviour of these companies is in fact largely identical to that of the public companies limited. Therefore, there were good arguments to treat both types of companies on the same footing. The factual situation in the different directives is quite diverse: while the first, the fourth, the seventh and the eleventh directives are applicable both to the public and the private company types, the second, third, sixth apply only to the public company limited. The 12th on the single-member company applies only to the private limited liability company, as this is the only form in which a one-man company is usually allowed. In fact one should put a question mark beside the above used distinction between public and private companies, as being equivalent to the continental divide between SA en Sàrl. In the approach followed in the UK, the former are subspecies of the same single company form, the company limited by shares. Under the continental concept, the Sa and the Sàrl, although having many common features, are generally considered different company types. Moreover the differences between the SA and the Sàrl, or what generally are considered equivalent national forms, vary appreciably from state to state. The issue is far from merely technical. Member states have had ambivalent feelings as to the extension of some of the harmonised European rules to company types that are not explicitly viewed by the directives. Some member states have taken an activist stand, extending the European principles to all company types, at least those with limited liability. So e.g. is part of the capital formation and protection rules that are applicable to the French SA also applicable to the French Sàrl. Belgium has taken a more radical stand: it applies the rules equally to both SA and Sprl, and some of them even to the co-operative societies, although these are considered out of the scope of the harmonisation in other states. Therefore, the effects of the European harmonisation often extend beyond the horizon of the SA. One can also understand why some member states that are critical of some of the European rules, will resist any attempt to extend the harmonisation across the board to all companies with limited liability19. When the Sàrl has not been submitted to all of the rules of the European harmonisation, this company type has played the role of a shelter, or some will say, of an evasion technique. The exemption of the Sàrl from the cumbersome rules of the Second Directive on financial assistance (art. 23) has opened up the possibility to organise useful transactions, such as management buy outs by interposing a Sàrl, there where the deal would be forbidden if done directly by an SA. This form of competition between company types deserves special mention. In some states it has been even more evident between the co-operative societies and the Sàrl, as both were, for practical purposes, largely equivalent20. 19 This is especially the case with the extension of the Second directive to the private companies limited, a proposal that has been voiced in Germany as a technique to deal with the issues dealt with in the Centros case. See LUTTER, M. ‘Das Europäische Unternehmensrecht im 21. Jahrhundert’, ZGR 2000,1 and HIRTE, ‘Die aktienrechtliche Satzungsstrenge: Kapitalmarkt und sonstige Legitimationen versus Gestaltungsfreiheit’, ZGR Sonderheft 13, 1998, 71-72. 20 See WYMEERSCH, ‘Kritische benadering en synthese van de besproken vennootschappen’ in Miskende vennootschapsvormen, Koninklijke Federatie van Belgische Notarissen, Kluwer, Antwerpen, 1991, 153-180
The question has been raised whether it would not be preferable to develop European rules that would only address part of the viewed population, the one where with the greatest cross border density". To a certain extent, this approach has already been followed as the accounting directives contain differentiated rules depending on the volume of the business, its turnover and the number of employees employed. However, if these criteria allow differentiating the smaller companies from the very small ones, it does not allow for sufficient differentiation at the top end of the scale. Therefore it would be advisable that the directives more closely follow the criterion of "listing": companies that have their securities listed on regulated markets would be subject to strengthened rules and obligations v a.v. their investors". The use of this criterion would allow deregulating for many of the intermediate class of companies, and result in a more level playing field between the national systems, where the use of the different corporate forms present divergent patterns. At the same time it would allow for a better junction with the rules flowing from the capital market directives 3. The instruments of European Company Law 6. European company law is indirect company law: the Community rules are generally not directly applicable in the national legal systems. This feature is a consequence of the prevalent use of the"directive"as an instrument for implementing the provisions of the article 44(1)and 94-95 The directive is the usual Community instrument in the company law field. As mentioned above, some-unsuccessful-attempts have been made to intervene by way of a treaty. In rare cases the Community has acted by regulation, the latter being directly applicable in the national legal orders. In the securities field, a recommendation has been adopted it had the value of a programme for future harmonisation activity But the most used instrument is the directive. As a consequence, European company law is not company law, not being directly applicable to the companies, but addressed to the member States, who have to implement the directive into their national legal order. This duty of implementation is sometimes complex: there is no need to enact a regulation if the directive's provision is addressed to the state itself. Also the directive needs no implementing legislation if the national laws are already in conformity with the directive's provisions This double-layered system of regulation has many advantages: in a multicultural multilingual economic area it makes it possible to reach agreement on common principles without aving to agree about the rding in the actually applicable provision. It allows bridging the considerable differences in the legislative traditions of the member states. It further allows each state to use its own wording and language, as the directive only binds as to its result, not as to its forms and methods(art. 249) The drawback of the use of directives is that- differently from a"regulation"-it does not result in uniform law. Looking at the national company law statutes, one will find numerous and sometimes considerable differences in the respective member states. It is up to the eCj to check whether the member states have adequately implemented the directive and whether the goal put 21 In France and in Belgium, this criterion is supplemented by that of the companies that have issued securities to the public. As the number of companies that have issued securities to the public that have not been listed afterwards are marginal, it is proposed to leave that extension up to the member states 22 LEMPEREUR, CL,, Le code de conduite europeen concermant les transactions relative aux valeurs mobilieres' Rev. Dr Int. Dr:. Compare, 1978, 249-266 23 See on the use of the different instruments in European Company law: HOPT, K, fn. 4, at 232 et sec See also hoPt. fn. 4. at 233 e Financial Law institute. Universiteit Gent 2001
© Financial Law Institute, Universiteit Gent, 2001 7 The question has been raised whether it would not be preferable to develop European rules that would only address part of the viewed population, the one where with the greatest cross border "density". To a certain extent, this approach has already been followed as the accounting directives contain differentiated rules depending on the volume of the business, its turnover and the number of employees employed. However, if these criteria allow differentiating the smaller companies from the very small ones, it does not allow for sufficient differentiation at the top end of the scale. Therefore, it would be advisable that the directives more closely follow the criterion of “listing”: companies that have their securities listed on regulated markets would be subject to strengthened rules and obligations v.à.v. their investors21. The use of this criterion would allow deregulating for many of the intermediate class of companies, and result in a more level playing field between the national systems, where the use of the different corporate forms present divergent patterns. At the same time it would allow for a better junction with the rules flowing from the capital market directives. 3. The instruments of European Company Law 6. European company law is indirect company law: the Community rules are generally not directly applicable in the national legal systems. This feature is a consequence of the prevalent use of the "directive" as an instrument for implementing the provisions of the article 44(1) and 94-95. The directive is the usual Community instrument in the company law field. As mentioned above, some - unsuccessful- attempts have been made to intervene by way of a treaty. In rare cases the Community has acted by regulation, the latter being directly applicable in the national legal orders. In the securities field, a recommendation has been adopted: it had the value of a programme for future harmonisation activity22. But the most used instrument is the directive23. As a consequence, European company law is not company law, not being directly applicable to the companies, but addressed to the Member States, who have to implement the directive into their national legal order. This duty of implementation is sometimes complex: there is no need to enact a regulation if the directive's provision is addressed to the state itself. Also the directive needs no implementing legislation if the national laws are already in conformity with the directive's provisions. This double-layered system of regulation has many advantages: in a multicultural, multilingual economic area it makes it possible to reach agreement on common principles without having to agree about the precise wording in the actually applicable provision24. It allows bridging the considerable differences in the legislative traditions of the member states. It further allows each state to use its own wording and language, as the directive only binds as to its result, not as to its forms and methods (art. 249). The drawback of the use of directives is that - differently from a "regulation" - it does not result in uniform law. Looking at the national company law statutes, one will find numerous and sometimes considerable differences in the respective member states. It is up to the ECJ to check whether the member states have adequately implemented the directive and whether the goal put 21 In France and in Belgium, this criterion is supplemented by that of the companies that have issued securities to the public. As the number of companies that have issued securities to the public that have not been listed afterwards are marginal, it is proposed to leave that extension up to the member states. 22 LEMPEREUR, CL., ‘Le code de conduite européen concernant les transactions relative aux valeurs mobilières’, Rev.Dr.Int. Dr. Comparé, 1978, 249-266. 23 See on the use of the different instruments in European Company law: HOPT, K., fn. 4, at 232 et seq. 24 See also HOPT, fn. 4, at 233
forward has been achieved. However the number of ECJ cases dealing with company law has been relative small25 There are several other reasons why directives do not result in uniform legal provisions. One of these is the frequently used technique of the"options", whereby member states may choose between several alternatives, each being considered equivalent in terms of ultimate harmonisation. It is well known that these"options"often are a way out of the deadlock during the discussions. They have been frequently used in the Fourth accounting directive, and have contributed to the perceived weakness of the European accounting syster Another disturbing factor is the prevailing opinion -often explicitly mentioned in the directives- that these only introduce minimum standards, and that member states are free to go beyond the directive's provisions, by imposing stricter, more protective rules26. This attitude leads necessarily to reinforce the peculiarities of each of the legal systems, and constitutes a serior handicap in the accomplishment of the internal market. The segmentation of the market may also be due to the abundant use- or extensive nterpretation-by member states of the"general good exception"27. According to this rule, member states may allow restrictions in their national legal order to be maintained, or that may even prevail over the directive's provisions, if they serve to achieve the public policy objective that the member states have lawfully put forward. In the field of investor protection member states have been rather inventive to list numerous rules as belonging to the general good The eCJ has accepted that these exceptions can be upheld even with respect to the freedom of establishment of companies". The outcome is an often unjustified segmentation of the markets 7. Being addressed to Member States, not to companies directly, directives do not provide directly enforceable rights to the companies, to investors or other stakeholders, which the directive has in mind. Enforcement of the directives is, as a matter of the Treaty, the task of the Commission (art 226)or of other member states(art. 227). Ultimately, the ECJ decides. National jurisdictions deciding in last instance, are obliged to submit all cases of interpretation of the directives to the ECJ, although increasingly -and regrettably- some national jurisdictions refuse to do on the basis of the acte clair" technique Although in principle individuals have no right to invoke the directive, it being addressed to the Member states, the directive is not without effect as far as their legal position is concerned. First, the directive is directly applicable in the relations between a state or public authority, and party: this is called vertical direct effect, and may be of importance in the securities field, where issuers deal with state supervisory bodies. But the eCJ has up to now denied horizontal direct effect to the directives: investors could therefore not claim against a company that it violates the rules of the directive. Furthermore on the basis of the idea that the implementation is a duty of the member 25 For an overview, see V. EDWARDS, EC Company Law, Oxford University Press, 1999, at XXVII 26 This being linked to the adoption of the lowest common denominator, see HoPT, fn. 4, at 235 See for an extensive study of the general good exception in the area of financial services: TISON, M, De Interne Markt voor Bank- en Beleggingsdiensten, Antwerp, Intersentia, 1999 and What is"general good"in EU Financial Services Law?, LIEI, 1997/1, pp. 1-57 28 Also in the Centros decision, ECJ, 9 March 1999, C-212/97, ECR 1999, 1-1459 at& 24: Case 115/78Knoors ( 1979)ECR 399,$ 25 and Case C-61/89 Bouchoucha(1990)ECR 1-3551,8 14 See greek cases in VANESSA EDWARDS, EC Companmy Law, Oxford University Press, 1999, Ch Ill, art 25-29 Sec dir The landmark decision of the European Court of Justice concerning horizontal direct effect is the marsha decision( Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority (1986) e Financial Law institute. Universiteit Gent 2001
© Financial Law Institute, Universiteit Gent, 2001 8 forward has been achieved. However the number of ECJ cases dealing with company law has been relative small25. There are several other reasons why directives do not result in uniform legal provisions. One of these is the frequently used technique of the "options", whereby member states may choose between several alternatives, each being considered equivalent in terms of ultimate harmonisation. It is well known that these "options" often are a way out of the deadlock during the discussions. They have been frequently used in the Fourth accounting directive, and have contributed to the perceived weakness of the European accounting system. Another disturbing factor is the prevailing opinion - often explicitly mentioned in the directives - that these only introduce minimum standards, and that member states are free to go beyond the directive's provisions, by imposing stricter, more protective rules26. This attitude leads necessarily to reinforce the peculiarities of each of the legal systems, and constitutes a serious handicap in the accomplishment of the internal market. The segmentation of the market may also be due to the abundant use - or extensive interpretation - by member states of the "general good exception"27. According to this rule, member states may allow restrictions in their national legal order to be maintained, or that may even prevail over the directive's provisions, if they serve to achieve the public policy objective that the member states have lawfully put forward. In the field of investor protection member states have been rather inventive to list numerous rules as belonging to the general good. The ECJ has accepted that these exceptions can be upheld even with respect to the freedom of establishment of companies28. The outcome is an often unjustified segmentation of the markets. 7. Being addressed to Member States, not to companies directly, directives do not provide directly enforceable rights to the companies, to investors or other stakeholders, which the directive has in mind. Enforcement of the directives is, as a matter of the Treaty, the task of the Commission (art 226) or of other member states (art. 227). Ultimately, the ECJ decides. National jurisdictions, deciding in last instance, are obliged to submit all cases of interpretation of the directives to the ECJ, although increasingly -and regrettably - some national jurisdictions refuse to do on the basis of the "acte clair" technique. Although in principle individuals have no right to invoke the directive, it being addressed to the Member states, the directive is not without effect as far as their legal position is concerned. First, the directive is directly applicable in the relations between a state or public authority, and a private party: this is called vertical direct effect29, and may be of importance in the securities field, where issuers deal with state supervisory bodies. But the ECJ has up to now denied horizontal direct effect to the directives: investors could therefore not claim against a company that it violates the rules of the directive30. Furthermore, on the basis of the idea that the implementation is a duty of the member 25 For an overview, see V. EDWARDS, EC Company Law, Oxford University Press, 1999, at XXVII. 26 This being linked to the adoption of the lowest common denominator, see HOPT, fn. 4, at 235. 27 See for an extensive study of the general good exception in the area of financial services: TISON, M., De Interne Markt voor Bank- en Beleggingsdiensten, Antwerp, Intersentia, 1999 and ‘What is “general good” in EU Financial Services Law?’, L.I.E.I., 1997/1, pp. 1-57. 28 Also in the Centros decision, ECJ, 9 March 1999, C-212/97, ECR 1999, I-1459 at § 24: Case 115/78 Knoors (1979) ECR 399, § 25 and Case C-61/89 Bouchoucha (1990) ECR I-3551, § 14. 29 See Greek cases in VANESSA EDWARDS, EC Company Law, Oxford University Press, 1999, Ch III, art 25-29 Sec Dir.. 30 The landmark decision of the European Court of Justice concerning horizontal direct effect is the Marshall decision (Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority (1986)
state, the Court has held states civilly liable for not implementing a directive in time. finally even between private parties, national statutes have to be interpreted in a sense that is in conformity with 8. It has often been claimed that the harmonisation of company law in Europe has suffered from too many rigidities. These are due to the long process of preparation of the directives-often 10 to 15 years-which makes it unworkable to change the directive's wording once it has been adopted."Petrification"is, according to Vanessa Edwards, less bad than one could fear: she points to the amendments that have been introduced in the second, fourth and the listing particulars directive. She further points to art. 202(ex 145) whereby the Council can confer implementing powers to the Commission. More recently, the comitology"technique has been further refined allowing the appointment of specialised committees to whom regulatory powers can be delegated In the securities field, the recent Lamfalussy Report proposed to draw on the comitolo technique to ensure that the principles that have been adopted by the Council, are adequately and swiftly translated in workable provisions for further implementation by the member states. There are good arguments to follow a similar approach in some of the more technical company law matters 9. There have been several generations of directives and proposals for directives in the field of company law and capital market law. The following list aims at giving an overview of the Community s efforts in this field therefore both adopted directives and proposals for directives or other instruments are included Company Law 1 First Council Directive 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 th meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community(68/151/EEC) 2 Second Council Directive of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies ECR 723), see also Case C-91/ 92 Faccini dori v Recreb ECR 1-3325 and Case C-192/94 El Corte Ingles v blacque rivero(1996) ECR l-1281 But this po is being increasingly weakened: see ECJ, C 443-98, of 26 September 2000, Unilever Italia SpA v Central Food SpA, EuZW, 2001, 153, with comments by GUNDEL 31 Joined Cases C 46 and 48/93 Brasserie du Pecheur and Factortame(1996)ECR 1-1029 and Case C-392/93 The 32 Queen v HM Treasury, ex p British Telecommunications(1996)ECR1-1631 The Marleasing case C-106/89 Marleasing v La Comercial Internacional de Alimentacion(1990)ECR I-4135 33 See HoPt. in 4. 235es 243. 265 EDWARDS. fn. 1. at 11 35 See Council Decision, 28 June 1999, OJEC, L. 184 of 17 July 1999, 23-26; compare the proposal made in the Lamfalussy report"Initial Report of the Committee of Wise Men on the Regulation of the European SecuritiesMarkets,http://europa.eu.int/comm/internalmarket/en/finances/general/lamfalussy.htm The technical rules on electronic voting in the general meeting, or on proxy solicitation could be mentioned as an example, see WYMEERSCH, "The use of ICT in Company law, in FERRARINI, (ed) Europe in the age of the Euro, to be published 37OJL65.14.3.1968.8-12 e Financial Law institute. Universiteit Gent 2001
© Financial Law Institute, Universiteit Gent, 2001 9 state, the Court has held states civilly liable for not implementing a directive in time31. Finally even between private parties, national statutes have to be interpreted in a sense that is in conformity with the purpose of the directive.32 8. It has often been claimed that the harmonisation of company law in Europe has suffered from too many rigidities. These are due to the long process of preparation of the directives - often 10 to 15 years - which makes it unworkable to change the directive's wording once it has been adopted33. "Petrification" is, according to Vanessa Edwards34, less bad than one could fear: she points to the amendments that have been introduced in the second, fourth and the listing particulars directive. She further points to art. 202 (ex 145) whereby the Council can confer implementing powers to the Commission. More recently, the “comitology” technique has been further refined, allowing the appointment of specialised committees to whom regulatory powers can be delegated35. In the securities field, the recent Lamfalussy Report proposed to draw on the comitology technique to ensure that the principles that have been adopted by the Council, are adequately and swiftly translated in workable provisions for further implementation by the member states. There are good arguments to follow a similar approach in some of the more technical company law matters36. 9. There have been several generations of directives and proposals for directives in the field of company law and capital market law. The following list aims at giving an overview of the Community's efforts in this field: therefore both adopted directives and proposals for directives or other instruments are included. Company Law 1° First Council Directive 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 (68/151/EEC)37 2° Second Council Directive of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies ECR 723), see also Case C-91/92 Faccini dori v Recreb (1994) ECR I-3325 and Case C-192/94 El Corte Inglés v Blàzquez Rivero (1996) ECR I-1281. But this position is being increasingly weakened: see ECJ, C 443-98, of 26 September 2000, Unilever Italia SpA v.Central Food SpA, EuZW, 2001, 153, with comments by GUNDEL. 31 Joined Cases C 46 and 48/93 Brasserie du Pêcheur and Factortame (1996) ECR I-1029 and Case C-392/93 The Queen v HM Treasury, ex p British Telecommunications (1996) ECR I-1631. 32 The Marleasing case C-106/89 Marleasing v La Comercial Internacional de Alimentaciòn (1990) ECR I-4135. 33 See HOPT, fn.4, 235 e.s. 243, 265 34 EDWARDS, fn. 1, at 11 35 See Council Decision, 28 June 1999, OJEC, L. 184 of 17 July 1999, 23- 26; compare the proposal made in the Lamfalussy report “Initial Report of the Committee of Wise Men on the Regulation of the European Securities Markets’, http://europa.eu.int/comm/internal_market/en/finances/general/lamfalussy.htm . 36 The technical rules on electronic voting in the general meeting, or on proxy solicitation could be mentioned as an example, see WYMEERSCH, ‘The use of ICT in Company law’, in FERRARINI, (ed) Europe in the age of the Euro, to be published. 37 OJ L 65, 14.3.1968, 8-12