european business law lesson 8 april 17 th, 2013
TRANSCRIPT
European Business Law
Lesson 8
April 17th, 2013
Tod
ay’s le
sson
Week 8:
Lecture 1 EU Fifth Company Law Directive proposal
Lecture 2 The EU company (Council regulation (EC) 2157/2001 of 8.10.2001 on the Statute for a European company (SE))
Lecture 3 Involvement of employees (Directive 2001/86/EC of 8.10.2001 supplementing the Statute for a European company with regard to the involvement of employees)
Corp
ora
te g
overn
an
ce What is corporate governance?
CG involves regulatory and market mechanisms, and the roles and relationships between a company’s management, its board, its shareholders and other stakeholders, and the goals for which the corporation is governed
Corporate governance main areas of interest: Shareholders vs. creditors Shareholders vs. workers Shareholders vs. managers Managers vs. investors
CG key words Shareholders’ value (welfare) Corporate social responsibility Interest of the company as a whole Conflicts of interests (related parties; disclose or abstain) Business judgment rule
Man
ag
em
en
t & C
ontro
l S
yste
ms
One-tier board (US, France A, UK, Italy, Spain, Belgium)Board of directors (committees, independent
directors)
Two-tier board (Germany, France B, Netherlands, Portugal, Finland)Supervisory board: Aufsichtsrat, Conseil de
surveillance, Raad van Kommissarien, Conselho fiscal
Managing board: Vorstand, Directoire, Raad von Bestuur, Conselho de administraçao
Three-tier board (Soviet union after perestroika)Supervisory board, Executive Board, Audit
One tie
r board
Italy
’s colle
gio
sind
aca
le
Two tie
r board
Germ
an
y’s co
-dete
rmin
atio
n
Pro
posa
l of V
Com
pan
y
Dira
ctive a
nd
Regu
latio
n
on
SE
Proposal of V Company law directive (1972) and of a Societas EuropaeaMandatory two-tier board systemMandatory co-determination (within the
supervisory board)
New Proposal of V Company law directive (1983) and of a Societas EuropaeaOptional two-tier board systemOptional co-determination (various systems)
Regulation of SEReg. 2157/2001 (optional 2TB)Directive 2001/86/EC (optional co-
determination)
Th
e S
E m
ain
featu
res
Formation By merger of national companies from different member
states By the creation of a joint venture between companies (or
other entities) in different member states By the creation of an SE subsidiary of a national company
(or an SE subsidiary of another SE) By the conversion of a national company into an SE
Minimum capital: 120.000 €
Registered office: the place where it has its central administration, that is to say its true centre of operations
Applicable law
Does SE have any success? Why choosing an SE? Some figures follow…
Overa
ll nu
mb
ers
Distrib
utio
n
Board
structu
re
Board
structu
re
Inte
rpre
tatio
n o
f data
(1
.4.2
01
3)
Why an SE? No worker participation shelf-companies for foreign investors
How was the SE created? SE “incubator” of other SE subsidiaries; no workers
participation arrangement
Which CG model? Two-tier system in 80% of the cases Both in Germany, Austria and Czech Republic 2t is
mandatory and traditional However, the majority of Austrian SE prefer one-tier and
40% of the German SE also do
Issues o
f CG
Who drives the car? Business judgment ruleFiduciary dutiesConflicts of interests prevention(the case for increasing shareholders‘ powers?
Babchuk)
Who controls the driver?The law... or the market?
Does the ‘ownership’ of enterprises interfere (Hansmann)?
Corp
ora
te g
overn
an
ce a
nd
effi
cien
cyWhere does the driver lead?
Shareholders’ value vs. social corporate responsibilityTeam Production Theory and other Challenges
to “Shareholder Primacy” (Blair, Stout)The end of history for corporate law
(Hansmann, Kraakman) (you may react on this paper)
Is there a GC model which may be considered more efficient? Can efficiency be measured with a “linear regression”?Law and finance doctrineLegal origins doctrine