European Company Law after Inspire Art and EU-Enlargement – new landscape and new perspectives
Chapter I. Introduction
Chapter Editor: Arkadiusz Radwan
- Goals of the present work
- Reference to the status quo of European Company Law: Treaty Foundations; harmonisation, dynamics of harmonisation; supranational companies (EEIG, SE, SCE); impact of ECJ-rulings and the case for regulatory competition in Europe
- Reference to the ongoing discussion about further development of European company law and the submitted proposals (Commission’s Action Plan to Move Forward)
- Course of analysis
- Methods applied
- Adopted terminology
- Brief overview over the book’s content
Chapter II. Legal history, foreign inspirations and recent developments in national company law
Chapter Editor: Andres Vutt
- Brief outline of legal development of company law throughout the history
- Company law codifications
- Foreign and international interdependences
- Traditional impact of foreign laws on the development of national company law
- Current sources of foreign inspiration
- Recent developments
- Contemporary legal policy
- Alignment of the national law with the EC-Directives
Chapter III. The system of national company law
Chapter Editor: Radu N. Catana
- Structure of company law and its legal environment
- Systematic overview
- Types companies
- Other forms of business enterprise: partnership, co-operative society, foundation, registered association etc.
- Basic characteristics of existing forms of business enterprise
- Legal context: Commercial register, Insolvency Law, Capital market law, Corporate taxation
- Role of the courts (tendency to/reluctance in creative application of law leading to formation of the body of case-law through development of new or reshaping of existing legal institutes)
Chapter IV. The ownership structure and control
Chapter Editor: Aleksandra Gregoric
1. Business organisations in statistics
- Proliferation of different types of business organizations (empirical data): especially number of particular types of companies, number of listed companies, capitalisation of listed companies, total capitalisation of the national capital market, recent tendencies in market capitalisation, number of initial public offerings (IPR) in the recent years, number of delistings (going private)
- The importance of medium and small enterprises (MSE): portion in gross domestic product (GDP), portion in total-employment
2. Corporate ownership
- Ownership concentration: number of companies having no shareholder holding more than 10%, number of companies with share stakes exceeding respectively 10%, 25%, 50%, 75%, 90%. For the survey a representative sample of larger and medium (preferably listed) national companies shall be taken
- Nature of the ownership: state; individual/family; another company (parent); institutional investor i.e. bank/pension fund/investment fund/insurance company; foreign investor
3. Statutory provisions and judiciary approach to the notion of “corporate control”
- controlling company,
- controlled company,
- duties arising from the achieving and maintaining of the dominant (controlling) position
- liability of the controlling company
Chapter V. Company and capital formation
Chapter Editor: Emily Yiolitis
1. Setting up of a company
- Capital formation
- Minimum capital requirements
- Par value / no par value shares
- Contributions in kind (assets ability to be contributed, problem of evaluation)
- Other formalities
2. Private international law issues
- "Nationality" of companies
- International Company Law
- Connecting factor determining the law governing the company (real seat/registered office/incorporation)
- Jurisdictional migration
- Formal and actual migration of the company (moving of companies registered/actual office)
- Cross-border merger
Chapter VI. The system of corporate governance
Chapter Editors: Bohumil Havel, Krzysztof Oplustil, Arkadiusz Radwan
1. Organisational structure of the company (Companies organs/bodies) Overview
- Board of directors,
- Supervisory board,
- General meeting,
- Audit committee etc.
2. Management and internal supervision
- Governance system: structure (one tier/two tier system);
- appointment and dismissal,
- composition,
- powers,
- liabilities
3. General meeting: Shareholder democracy and decision making
3.1. Powers of general meeting
- Exclusive powers
- Powers that can be subject to delegation
3.2. Notice and pre-meeting communication
- Convening the members to the GM,
- Other pre-meeting formalities
3.3. Shareholder information and participation
- Investigation rights of minority shareholders
- Shareholder communication
- Average shareholder participation in general meeting (empirical data)
3.4. Decision making
- Majority
- Thresholds for special resolutions
- Issues subject to special resolution
- Quorum requirements
- Collective minority rights (calling of the GM, putting items on the agenda of GM, )
3.5. Voting
- Voting in absentia
- Proxy voting
- Financial intermediaries and deposit systems
- Institutional investors, majority investors and their obligations and limitations with respect to voting
- Limitations to exercise of voting rights
4. Minority protection
- Shareholders suits
- Shareholders actions against oppressive measures taken by the majority
- Monitoring of the directors
- Preventive and compensatory measures of the minority against the directors
- Shareholders pre-emptive rights and their disapplication (exclusion/suppression) by the GM and by the board of directors
- Corporate “blackmail” and abusing of minority rights
5. External supervision
- The role of auditors
- Power to appoint auditors
6. Best practices in public companies
- The existence and nature of Corporate Governance Codes
- Annual corporate governance statement
- Directors remuneration
7. Worker co-determination/participation in corporate governance
Chapter VII. Corporate Restructuring
Chapter Editor: Arkadiusz Radwan
- The position of the acquiring company in a domestic merger under the Third Company Law Directive
- The acquisition of a wholly owned subsidiary by the same means
- Creditor protection in restructuring transactions
- Delisting of the company (going private)
- Squeeze-outs and sell-outs
Chapter VIII. Creditor protection
Chapter Editors: Thomas Bachner, Laura Tjasa Struc
1. Capital maintenance
- Limitations on assets distributions back to shareholders (dividend payments, other distributions)
- Consequences of unlawful distributions
- Acquiring of company’s own shares
- Financial assistance to acquire company’s own shares
2. Other issues
- Shareholders’ loans, fraudulent conveyance
- Claim subordination
3. Alternative measures
- Mandatory insurance
- Capital adequacy
- Credit rating, disclosure
- Piercing/lifting the corporate veil (disregarding legal entity)
4. Directors liability
- Wrongful trading (Insolvenzverschleppungshaftung, action en comblement du passif)
- Directors disqualification
Chapter IX. Comparative analysis and conclusions
Chapter Editor: Arkadiusz Radwan
