slide1 n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
European Private Law: (1) Private law, the Internal Market and European Constitutionalism ; (2) Company law and f PowerPoint Presentation
Download Presentation
European Private Law: (1) Private law, the Internal Market and European Constitutionalism ; (2) Company law and f

Loading in 2 Seconds...

play fullscreen
1 / 65

European Private Law: (1) Private law, the Internal Market and European Constitutionalism ; (2) Company law and f - PowerPoint PPT Presentation


  • 115 Views
  • Uploaded on

European Private Law: (1) Private law, the Internal Market and European Constitutionalism ; (2) Company law and financial markets. Professor Mads Andenas, Oslo Visiting Professor, Sapienza, Roma. ( 1) Private law, the Internal Market and European Constitutionalism.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'European Private Law: (1) Private law, the Internal Market and European Constitutionalism ; (2) Company law and f' - spike


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
slide1

European Private Law: (1) Private law, the Internal Market and European Constitutionalism; (2) Company law and financial markets

Professor Mads Andenas, Oslo

Visiting Professor, Sapienza, Roma

1 private law the internal market and european constitutionalism
(1) Private law, the Internal Market and European Constitutionalism
  • Private law in the Internal Market and in an EU constitutional order
  • The legal base for EU legislation in private law
  • The resistance at national level
2 european private law company law and financial markets
(2) European Private Law: Company law and financial markets
  • EU law: Company law and financial markets. The role of free movement.
  • The right of establishment and the free movement of capital. The Centros and Golden Shares lines of cases.
  • The harmonisation of company law and financial market regulation and reactions in national private law.
  • The impact of the financial crisis.
1 private law the internal market and european constitutionalism1
(1) Private law, the Internal Market and European Constitutionalism:

Three parts:

1) private law in the Internal Market and in an EU constitutional order

2) the legal base for EU legislation in private law

3) the resistance at national level

1 private law in the internal market and an eu constitutional order
1. Private law in the Internal Market and an EU constitutional order

Role of private law in the Internal Market and in an EU constitutional order: incidental but the total impact considerable.

Remains fragmented and not consistent

1 1 internal market and private law
1.1 Internal market and private law
  • Individual rights and effectiveness through the constitutional doctrines of direct effect and supremacy.
  • Impact on private law obligations.
  • Free movement rights and private parties.
wider eu rights and remedies
Wider EU rights and remedies:
  • Breach of EU obligations and remedies in tort and contract against public authorities and private parties.
  • Developed by ECJ and national courts under Article 267 TFEU (ex Article 234 EC)
  • Directly effective treaty rights, (Case 2/74) Defrenne and Sabena [1974] ECR 631, competition law, state aid, public procurement
remedies in eu legislation
Remedies in EU legislation:
  • Remedies directives: publicprocurement, Public procurement Directive 2007/66/EC revising Remedies Directive for theutilitiessector (Directive 92/13/EEC) and Remedies Directive for thepublicsector (Directive 89/665/EEC)
  • State aid
  • IP rights, Enforcement of intellectual property rights (Directive 2004/48/EC), current reform process on the challenges posed by the digital environment.
making competition remedies effective
Making competition remedies effective
  • 2008 Commission White Paper on Damages Actions for Breach of the EC antitrust rules.
  • 2011 Draft Guidance Paper on quantifying harm in actions for damages based on breaches of the EU antitrust rules.
tort law
Tort law:
  • Breach of EU law and tort remedies: all aspects of liability
  • Public authority liability for breach of EU law.
  • Summing up the ‘incidental’ instruments and policy initiatives mentioned.
  • Then adding ‘the first private law directive’: Directive on Product Liability (85/374/EEC). Sharing common feature with many of the other instruments: responding to moves to regulate at national level with consequences for internal market. Head of liability not causation and quantum.
contract law
Contract law

Contract law consequences of breach of EU law Consumer law directives, proposed and withdrawn directive on consumer rights (2008)

Financial markets, consequences for professional actors in the financial markets

National contract law including different models for the basic contracting mechanism with offerand acceptance (consideration) remain

Unclear impact on general contract law: emphasis on mandatory rules and non-derogable rights, against the paradigm of contractual freedom for general contract law.

1 2 human rights and private law
1.2 Human rights and private law
  • ECHR and private law, family and inheritance law, property law, the reach of protection against discrimination. Pla and Puncernau v. Andorra.
  • One of the autonomies, EU law and human rights. Solange and the end of the EU as an autonomous treaty regime.
  • The Charter and the Lisbon treaty.
relationship to purely domestic rights discourses
Relationship to ‘purely’ domestic rights discourses

Domestic discussion of constitutional rights in private law, breaking through in different jurisdictions

1 3 private law in an eu constitutional order
1.3 Private law in an EU constitutional order
  • Private law in any constitutional order
  • ‘Incidental’ role in EU law: what does it add up
  • Harmonisation paradigm: also applies when the EU recognises its general constitutional dimension
1 4 national private law
1.4 “National” private law

Is there anything such as purely “national” private law? Was there ever?

2 the legal base for eu legislation in private law
2. The legal base for EU legislation in private law

Article 114 TFEU: “the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure … adopt 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”

or

Article 352: absence of any other legal basis in the Treaty unanimity in the Council.

previous discussion
Previous discussion

Very German.

And Stephen Weatherill, but after strong criticism of ‘competence creep’ and calls to private lawyers to resist, he concluded eventually, after the Commission Green Paper that the Commission had taken the ‘heat out of the competence question’.

current discussion
Current discussion

Jürgen Basedow and MPI study: Outside Article 114 TFEU and has to rely onArticle 352.

Hans Micklitz: Article 114 TFEU cover the measures but need to pare down the CESL

the history of competence challenges
The history of competence challenges

The history of company law, the early directives, directives in other fields: banking (deposit guarantee schemes), SE/SCE (more below)

W.H. Roth: doorstep selling directive no cross border element and no treaty base, not succeeded before courts

Parallels on fundamental freedoms in the ECJ:

against the application of free movement post Centros . Private international law not free movement. IP rights, labour rights 

limits to the competence under article 114 tfeu
Limits to the competence under Article 114 TFEU

Case C-376/98, Germany against the European Parliament and Council, citing ‘health’

C-380/03 Germany v European Parliament and Council

C-436/03 EP v Council [2006] ECR I-3733 (SE and SCE)

subsidiarity and proportionality
Subsidiarity and proportionality
  • Art 5 TEU
  • Impact asessment
impact on current cesl proposal
Impact on current CESL proposal
  • The competence discussion, a natural challenge and generally good process? But little likelihood of carving out an exception for general contract law.
  • Relationship with political consensus moving
  • Impact on current CESL proposal: clear. Problematic: Christiane C. Wendehorst building on Hans Micklitz: ‘the purely instrumentalist approach to private law, which is suggested by Article 114 TFEU, can negatively affect both the legislative process and the rules themselves. In the long run, good European private law may be possible only if it gets a clear and firm legal basis in the Treaty.’
3 the resistance at national level
3. The resistance at national level

National traditions as an obstacle. Defending the national system as a reflex. The variety of national law as a value and the inherent tension with rights at a European level and the internal market. Many complex relationships where the conflicts between disciplines and different parts of the legal community plays a role.

3 1 the end of comparative and private international law
3.1. ‘The end of comparative and private international law’

Jürgen Basedowand MPI Study: balanced and good argument, but also emphasis on the perspective of the comparativist and private international lawyer. Comparativist discourse often not engaging with EU law: the end of comparative law. Similar tendencies among some private international lawyers. Focus on international instruments in their scholarship, and a long time before the effect not only of EU or EU initiated private international law instruments was accounted for, not to speak of the effects of free movement and ECHR.

3 2 the autonomy and autonomies of national law
3.2. The autonomy and autonomies of national law
  • Public/private
  • Constitutional rights and the rest of the legal system
  • Constitutional, administrative and public law. Regulatory law.
within civil law
Within civil law
  • Traditional divisions of disciplines.
  • Civil and commercial law: should there be general rules or specialised regimes. Consequences for contract interpretation, less protections, role of custom.
  • Consumer law. Mandatory or default rules: freedom of contract. Professor Alpa’s article in reading.
  • Impact of constitutional and ‘other public law’
proportionality in private law
Proportionality in private law
  • German example:
    • GrundrechteimPrivatrecht
    • Strahlungswirkung and not fully fledged proportionality
    • Exception: labour law.
    • New scholarship
  • French and Italian law
3 3 the interference of eu law in the national law autonomies
3.3 The interference of EU law in the national law autonomies

The variety of national law as a value and rights in the internal market.

Role of consumer law protection with mandatory rules and non-derogable rights, against the paradigm of contractual freedom for general contract law. What is ‘general contract law’: compare commercial and civil law conflicts, inclusion of consumer rights in general contract legislation

4 conclusions
4. Conclusions

The outside-in perspective, Eric A Posner, in a recent paper completely rejects the CESL proposal:

  • the introduction of an optional instrument should increase rather than reduce transaction costs.
  • It can produce benefits (reduction of “uniformity costs”), but it is unlikely that these benefits exceed the transaction-cost harms.
  • The potential dynamic effect of CESL for jurisdiction competition: benefits slight
  • The CESL might not be desirable as a means for helping to establish a common European identity, and reject it.

Posner, Eric A., The Questionable Basis of the Common European Sales Law: The Role of an Optional Instrument in Jurisdictional Competition (May 1, 2012). University of Chicago Institute for Law & Economics Olin Research Paper No. 597. Available at SSRN: http://ssrn.com/abstract=2049594 or http://dx.doi.org/10.2139/ssrn.2049594

2 european private law company law and financial markets1
(2) European Private Law: Company law and financial markets
  • EU law: Company law and financial markets. The role of free movement.
  • The right of establishment and the free movement of capital. The Centros and Golden Shares lines of cases.
  • The harmonisation of company law and financial market regulation and reactions in national private law.
  • The impact of the financial crisis.
slide34
2.2. The right of establishment and the free movement of capital. The Centros and Golden Shares lines of cases up to Vale.
free movement of companies
Free movement of companies?
  • There is still no free movement of companies in EU law. Natural persons and goods can move, practically without restriction, from one member state to another.
  • Article 48 EC Treaty provides that companies shall be treated in the same way as natural persons. But national company laws still discriminate in different ways against companies from other Member States.
  • Many discriminatory restrictions remain against foreign companies, and there are also restrictions on the movement of home companies out of the jurisdiction.
  • National company laws do not provide ways in which a company can reincorporate in another Member State.
impact of fundamental freedoms
Impact of fundamental freedoms
  • In a number of recent decisions, the European Court of Justice has applied the principles of its free movement case law on the company law and tax law of the Member States.
  • Furthermore, in cases brought by the Commission a number of Member States, the Court of Justice has reviewed the different ways in which Member States attempted to extend control in privatised companies.
  • The fundamental freedoms, in particular the right of establishment and the free movement of capital, are beginning to dismantle the obstacles to the movement of companies in national law.
german company law doctrine
German company law doctrine

And freemovement: a cautionary tale

  • Concern over freemovement, Commission v France
  • Sighofrelief over Daily Mail Case 81/87 Ex parte Daily Mail [1988] ECR 5483
  • Concernbefore and afterCentros
  • See Harald Halbhuber ’National DoctrinalStructures and European Company Law’

(2001) 38 Common Market Law Review1385–1420

company law and the fundamental freedoms
Company law and the fundamental freedoms

Freedom of establishment is a fundamental freedom in EC law (Article 43 EC)

  • Case C-205/84 Commission v Germany (Re-insurance)
  • Case C-442/02 Caixa Bank France (ban on interest for current accounts) [2004] ECR I-89615

Free movement of capital is a fundamental freedom in EC law (Article 43 EC)

company law directives i
Company law directives I

First Company Law Directive 68/151/EEC, on co-ordination of safeguards (...) for the protection of the interests of members and others, repealed by 2009/101/EC

Second Company Law Directive 77/91/EEC, on formation of public companies and the maintenance and alteration of capital, updated by 2006/68/EC and 2009/109/EC, repealed by 2012/30/EU

Third Company Law Directive 78/855/EEC, on mergers of public limited liability companies, repealed by 2011/35/EU

Fourth Company Law Directive 78/660/EEC, on accounting standards

Sixth Company Law Directive 82/891/EEC, on division of public companies, amended by 2007/63/EC

Seventh Company Law Directive 83/349/EEC, on group accounts

Eighth Company Law Directive 84/253/EEC, on the approval of persons responsible for carrying out the statutory audits of accounting document, repealed by 2006/43/EC, on statutory audits of annual accounts and consolidated accounts

company law directives ii
Company law directives II

Tenth Company Law Directive 2005/56/EC, on cross-border mergers of limited liability companies

Eleventh Company Law Directive 89/666/EEC, on disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State

Twelfth Company Law Directive 89/667/EEC, on single-member private limited-liability companies, repealed by 2009/102/EC

Thirteenth Company Law Directive 2004/25/EC, on takeover bids

Market Abuse Directive 2003/6/EC

Transparency of Listed Companies Directive 2004/109/EC

Shareholder Rights Directive 2007/36/EC, on the exercise of certain rights of shareholders in listed companies

Merger Tax Directive 90/434/EEC, on the common system of taxation applicable to mergers, divisions, transfers of assets and exchanges of shares concerning companies of different Member States, repealed by 2009/133/EC

proposals
Proposals

Draft Fifth Company Law Directive, on structure of public companies, shareholder right to determine director pay and codetermination

Draft Ninth Company Law Directive, on corporate groups

Draft Fourteenth Company Law Directive, on cross-border transfer of the registered offices of limited liability companies

proposed 14th company law directive on the cross border transfer of company seats
Proposed 14th Company Law Directive on the cross-border transfer of company seats
  • To provide a simple mechanism for the cross-border transfer of company seats.
  • Commission staff working document on impact assessments for the 14th company law directive, December 2007.
  • EP resolution on the 14th Directive, 10 March 2009. Own-initiative report adopted by JURI on 9 January 2012.
  • EP adopted report at plenary session on 2 February 2012.
  • Commission Action Plan on company law and corporate governance envisages further consultations in 2013 to update its impact assessments, 12 December 2012.
  • Commission publishes consultation on cross-border transfer of company seats, 14 January 2013.
merger of existing company law directives
Merger of existing company law Directives

Commission Action Plan for company law and corporate governance contains Commission's plans to adopt a proposal codifying and merging major company law Directives in 2013, 12 December 2012.

commission action plan for company law and corporate governance
Commission Action Plan for company law and corporate governance

outlines the initiatives which the Commission intends to take in this area in the coming years in order to modernise and enhance the current framework.

The initiatives, which will be both legislative and non-legislative, follow three main lines:

  • Enhancing transparency between companies and investors
  • Encouraging long-term shareholder engagement
  • Improving the framework for cross-border operation of companies
free movement of companies five cases
Free movement of companies: five cases

Firstsetting the scene: the ECJ caselaw

  • C-212/97 Centros Ltd v. Erhvervs- ogSelskabsstyrelsen [1999] E.C.R. I-1459.
  • C-208/00Überseering [2002] ECR I-9919.
  • Kamer van Koophandel en Fabriekenvoor Amsterdam v Inspire Art [2005] ECR I. 1095
  • C-411/03 Sevic Systems AG [2005] ECR I-10805
  • C-210/06 Cartesio
the right of investment and the free movement of capital
The right of investment and the free movement of capital
  • Golden Shares Cases, Case C-174/04 Commission v Italian Republic suspension of the voting rights attached to shareholdings exceeding 2% of the capital of companies in the electricity and gas sectors.
  • Volkswagen Case C-112/05 Commission of the European Communities v Federal Republic of Germany
case c 212 97 centros v erhvervs og selskabsstyrelsen 1999 ecr i 1459
Case C-212/97 Centros v Erhvervs-og Selskabsstyrelsen [1999] ECR I-1459

Contrary to Articles 52 and 58 EC for a Member State to refuse to register a branch of a company formed in accordance with the law of another Member State in which it has its registered office but in which it conducts no business where the branch is intended to enable the company in question to carry on its entire business in the State in which that branch is to be created, while avoiding the need to form a company there, thus evading application of the rules governing the formation of companies which, in that State, are more restrictive as regards the paying up of a minimum share capital.

c 208 00 berseering 2002 ecr i 9919
C-208/00 Überseering [2002] ECR I-9919

The real seat doctrine, or, in the official English translation of the judgment in Überseering, the "company seat principle", is one of two alternative models in the private international law of companies. Under the real seat doctrine, the law applicable to a company is the law of the country where the company has its actual centre of administration. In the U.K. an incorporation doctrine is followed. The law of the country of incorporation applies irrespective of where a company carries out its business.

slide50
Since the company is not incorporated under German law, it does not exist, even if it is still recognised under the law of the country of incorporation (the U.K.). In a number of cases, German courts refused standing to companies incorporated abroad. There is also the threat of loss of the protection by limited liability for directors and shareholders.
c 411 03 sevic systems ag 2005 ecr i 10805
C-411/03 Sevic Systems AG [2005] ECR I-10805

Sevicdecided a few weeks after the enactment of the Tenth Directive on Cross-Border Mergers, that a Luxembourg company had the right to merge with a German company, despite contrary rules of German law. Refusal to permit a merger would be a restriction in the meaning of Articles 43 and 48 EC and could only be justified if it pursued a legitimate objective under the Treaty and justified by imperative grounds in the public interest. The ECJ regarded the treatment of the Luxembourg company as an instance of discrimination.

c 411 03 sevic systems ag 2005 ecr i 10805 para 22
C-411/03 Sevic Systems AG [2005] ECR I-10805 [para 22]:

In so far as, undernationalrules, recoursetosuch a means of company transformation is notpossiblewhereone of the companies is established in a Member State otherthan the Federal Republic of Germany, Germanlawestablishes a difference in treatment between companies accordingto the internal or cross-border nature of the merger, which is likelytodeter the exercise of the freedom of establishment laid down by the Treaty.

the question in cartesio
The question in Cartesio

May a Hungarian company request transfer of its registered office to another Member State of the European Union relying directly on community law (Articles 43 and 48 of the Treaty of Rome)? If the answer is affirmative,may the transfer of the registered office be made subject to any kind of condition or authorisation by the Member State of origin or the host Member State?

ag maduro s opinion and the judgment in cartesio
AG Maduro’s opinion and the judgment in Cartesio
  • OverturnsDaily Mail in so far it allowsrestrictionson exit
  • More measured from the ECJ but to same effect
vale p t si kft c 378 10
VALE Építésikft (C-378/10)

Hungarian company law conversion rules were incompatible with the freedom of establishment because they provided for conversion opportunities when the companies involved in the operation were Hungarian but not when a company involved in the conversion operation was established in another member state, such as Italy.

the general reach of the fundamental freedoms
The general reach of the Fundamental Freedoms
  • Freedom of establishment is a fundamental freedom in EC law (Article 43 EC)
    • Case C-205/84 Commission v Germany (Re-insurance)
    • Case C-442/02 Caixa Bank France (ban on interest for current accounts) [2004] ECR I-89615
  • Free movement of capital is a fundamental freedom in EC law (Article 43 EC)
    • Golden shares cases
  • The core test: restriction, market access, making less attractive
  • Horizontal direct effect
  • Indirect direct effect
    • with particular application to company law: Case C-106/89 Marleasing [1990] ECR I-4135)
issues for our discussion
Issues for our discussion

National doctrine and EU law

    • Autonomy ofnationallaw and resistance to EU law
  • Horizontaldirecteffect?
  • The impactofthe ECJ case lawonnationalcompanylawon
    • transfer ofshares
    • exit ofcompanies
exit of european companies ses
Exit of European companies, SEs
  • Here Italian law is not so far out from the European mainstream.
  • But again, a question of ’restriction’ under freedom of establishment or free movement of capital.
  • What is the consequence of EU secondary legislation.
  • Consequences of free movement on interpretation and application of EU legislation.
slide61
2.3 The harmonisation of company law and financial market regulation and reactions in national private law.

Briefly about theharmonisationof financial market regulation: impact of free movement.

  • Institutional, and marked structures: moving from national to EU level. Diamond/Dybvig, Modigliani/Miller and Prescott/Kydland.
  • Investor protection.

Monetary policy, costs of financial system

  • Internal marked dilemmas
slide62
2.3 The harmonisation of company law and financial market regulation and reactions in national private law.

Briefly about theharmonisationof company law:

Company law directives on harmonisation of national company laws

EU companies

briefly about the harmonisation of financial market regulation impact of free movement
Briefly about the harmonisation of financial market regulation: impact of free movement.
  • Institutional, and marked structures: moving from national to EU level. Diamond/Dybvig, Modigliani/Miller and Prescott/Kydland.
  • Investor protection.

Monetary policy, costs of financial system to the economy

  • Internal marked dilemmas
financial market regulation and free movement impact on private law
Financial market regulation and free movement: impact on private law
  • Contracts with investors
  • Limitations on contracts between professionals
  • Increased intensity of competition regulation
  • Payments
  • Insolvency
  • Security
  • Settlements and clearing
  • Proposed Euro mortgage
2 4 the impact of the financial crisis
2.4 The impact of the financial crisis.
  • Monetary policy, costs of financial system to the economy. Macro and micro level reforms
  • Restrictions on contractual freedom of financial institutions