6

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Cross-border mobility of companies and use of digital solutions in company law

12-09-2018

In order to facilitate the freedom of establishment for companies, the Commission is proposing rules regarding the use of digital tools and processes throughout companies’ lifecycles and rules regarding cross-border conversions, mergers and divisions. This initial appraisal of the Commission’s impact assessment on the proposals observes that the impact assessment is very wide in scope and hence quite complex, but nevertheless manages to make a persuasive case to back the regulatory action being proposed ...

In order to facilitate the freedom of establishment for companies, the Commission is proposing rules regarding the use of digital tools and processes throughout companies’ lifecycles and rules regarding cross-border conversions, mergers and divisions. This initial appraisal of the Commission’s impact assessment on the proposals observes that the impact assessment is very wide in scope and hence quite complex, but nevertheless manages to make a persuasive case to back the regulatory action being proposed

Upgrading EU Company Law for digital solutions and cross-border operations

09-01-2018

Currently, EU company law is partially codified in Directive (EU) 2017/1132 relating to certain aspects of company law. Harmonisation of EU company law is a prerequisite for deploying a fully-fledged digital single market enabling all operators, in particular SMEs, to draw on the potential of the digital economy and to eliminate unnecessary barriers, while safeguarding their rights and providing legal and cyber security. Despite the recent codification and recently amended other pieces of EU company ...

Currently, EU company law is partially codified in Directive (EU) 2017/1132 relating to certain aspects of company law. Harmonisation of EU company law is a prerequisite for deploying a fully-fledged digital single market enabling all operators, in particular SMEs, to draw on the potential of the digital economy and to eliminate unnecessary barriers, while safeguarding their rights and providing legal and cyber security. Despite the recent codification and recently amended other pieces of EU company law, problems linked with legal certainty, administrative burden, unnecessary costs for companies resulting in lack of transparency or ineffective protection of companies, still remain. These points were noted and underscored several times by the European Parliament. The European Commission is expected to publish a legislative proposal on an EU company law package on 16 January 2018, potentially addressing digitalisation, cross-border mergers, divisions and conversions, as well as rules on conflict of laws related to company law.

Ex-post analysis of the EU framework in the area of cross-border mergers and divisions: European Implementation Assessment

21-12-2016

This study presents an evaluation of the implementation and effects of the provisions of EU law on cross-border mergers and divisions. In this context, it focuses, in particular, on the EU Directives on the division of public limited liability companies (82/891/EEC) and on cross-border mergers of limited-liability companies (2005/56/EC), analysing their relevance, and in particular, the gaps and challenges in the application of these directives, in view of the potential for a further legislative ...

This study presents an evaluation of the implementation and effects of the provisions of EU law on cross-border mergers and divisions. In this context, it focuses, in particular, on the EU Directives on the division of public limited liability companies (82/891/EEC) and on cross-border mergers of limited-liability companies (2005/56/EC), analysing their relevance, and in particular, the gaps and challenges in the application of these directives, in view of the potential for a further legislative initiative in this field.

Corporate governance: long-term shareholder engagement: Initial Appraisal of a European Commission Impact Assessment

13-04-2015

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment (IA) accompanying the proposal for a Directive of the European Parliament and of the Council amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement, a Directive 2013/34/EU as regards certain elements of the corporate governance statement (COM (2014) 213),and a Commission Recommendation on the quality of corporate governance reporting ...

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment (IA) accompanying the proposal for a Directive of the European Parliament and of the Council amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement, a Directive 2013/34/EU as regards certain elements of the corporate governance statement (COM (2014) 213),and a Commission Recommendation on the quality of corporate governance reporting ('comply or explain') (C(2014) 2165) This note, prepared by the Ex-Ante Impact Assessment Unit for the Committee on Legal Affairs (JURI) of the European Parliament, analyses whether the principal criteria laid down in the Commission’s own Impact Assessment Guidelines, as well as additional factors identified by the Parliament in its Impact Assessment Handbook, appear to be met by the IA. It does not attempt to deal with the substance of the proposal.

The Use of Shareholder Voting Rights During the General Assembly of Company Shareholders

15-12-2009

Some financial products facilitate (“Financial Instruments”’) the use of voting rights that can be considered questionable under the law (“Questionable Uses of Voting Rights”). These Questionable Uses of Voting Rights become apparent when, using the Financial Instruments, an investor is in a negative voting situation. This situation occurs when an investor, being indifferent to the impact of his vote for the company (“Empty Voter”), uses his vote to implement a conflict of interest, sometimes by ...

Some financial products facilitate (“Financial Instruments”’) the use of voting rights that can be considered questionable under the law (“Questionable Uses of Voting Rights”). These Questionable Uses of Voting Rights become apparent when, using the Financial Instruments, an investor is in a negative voting situation. This situation occurs when an investor, being indifferent to the impact of his vote for the company (“Empty Voter”), uses his vote to implement a conflict of interest, sometimes by voting against the company interest. These Questionable Uses of Voting Rights also become apparent in the case of a hidden shareholding situation. This is where an investor is able to direct the vote on shares in a company without officially being a shareholder. Questionable Uses of Voting Rights highlight legally reprehensible conducts such as fraud and abuses of rights and power. To avoid Questionable Uses of Voting Rights, a number of measures can be taken. These include compulsory disclosure and limitations on voting rights.

Autor extern

DBB - Demolin Brulard Barthelemy ; Report : Frederic Leplat (Attorney at Law, French Bar) and Jean Albert (Attorney at Law, New York Bar and Federal Courts) ; Provided specific reports : European Law : Sophie Robin-Olivier (Professor Paris X University) and Cécile Fargier (Attorney at Law, French Bar) ; Belgium : Yves Brulard (Attorney at Law, Belgian and French Bars) and Letitia Dumond (Attorney at Law, Belgian Bar) ; Germany : Dirk Zetzsche (LL.M., Toronto, Center for Business & Corporate Law, CBC, at Heinrich Heine University) ; France : Cécile Fargier (Attorney at Law, French Bar) ; Netherlands : Niek Zaman and Wilco Oostwouder (Professors at the Utrecht University and both with Loyens & Loeff N.V.) with the assistance of Martijn Schoonewille and Marijke Kuilman (Loyens & Loeff N.V.) ; United-Kingdom : Sandeep Gopalan (Associate Professor of Law ASU College of Law and Jean Albert (Attorney at Law, Arbitrator) ; Participated as researchers : Eglantine Boulogne, Madické Mboup and Mathieu Rouillard

The Economic Consequences of Large Shareholder Activism

15-07-2009

While ownership and control were under the effective supremacy of the firm’s (factual) owners at the beginning of the 20th century, the 21st century was entered by listed companies of which the growing size and the dispersion of ownership have paved the way for public corporations entailing systemic risk that are often characterized by a separation of ownership and control, coinciding the well-defined agency problem. While the agency problem was first attempted to be covered by monitoring mechanisms ...

While ownership and control were under the effective supremacy of the firm’s (factual) owners at the beginning of the 20th century, the 21st century was entered by listed companies of which the growing size and the dispersion of ownership have paved the way for public corporations entailing systemic risk that are often characterized by a separation of ownership and control, coinciding the well-defined agency problem. While the agency problem was first attempted to be covered by monitoring mechanisms offered by the law – i.e. (i) the market for corporate control; (ii) the legal, political and regulatory system; and (iii) the internal control system – the modern corporate governance wave applies itself to the rights and responsibilities of shareholders as the owners and monitors of public corporations. The central figure in this debate are large shareholders who have acquired a reputation of being able to successfully affect corporate decision-making process of corporate boards. The features of large shareholder activism, however, have come under great scrutiny. A variety of studies indicate that under the vein of corporate monitoring, the activities of large shareholders circumvent the existing legal devices regulation investor voice and give rise to substantial concerns in the corporate governance arena. Commissioned by the European Parliament in January 2009, this study contemplates on the economic consequences of large shareholder activism in five European countries (Belgium, France, Germany, the Netherlands and the UK) and refers to two other countries (Italy and Spain).

Autor extern

Christoph Van der Elst and Gulsum Aslan (Department of Business Law, University of Tilburg, the Netherlands)

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