European Company Law, 4/2007

A aparut nr. 4/2007 al revistei European Company Law.
Editorul a publicat si unele rezumate ale articolelor.

European Company Law, nr. 4 din 2007

Adriaan F. M. Dorresteijn, ‘Asymmetry?’ (2007) 4 European Company Law pp. 146-146

Albert Birkner, Clemens Hasenauer, ‘A New Takeover Code in Austria’ (2007) 4 European Company Law pp. 147-153
Summary:
The Austrian Takeover Act (Übernahmegesetz, ÜbG) entered into force on 1 January 1999. In 2006, the Takeover Act was amended by the Takeover Amendment Act (Übernahmerechts-Änderungsgesetz, ÜbRÄG) which was passed shortly after the implementation period of the Takeover Directive 2004/25/EC had expired. The Takeover Amendment Act was given retroactive effect as per 20 May 2006. A revision of the Austrian Takeover Act was not only necessary because of the Takeover Directive but also due to constitutional restraints. In particular, the Austrian Constitutional Court challenged the authorization of the Austrian Takeover Commission (Takeover Commission) to issue decrees as well as the definition of a floating ‘controlling interest’ (§ 22 ÜbG).

Francois Carle, ‘Are French Listed Companies Takeover-proof?’ (2007) 4 European Company Law pp. 154-158
Summary:
In his commentary on the recent reforms of the French takeover bids regime, Professor Bonneau questioned whether France was still ‘a good member of liberalism.’ A quick look at the statistics demonstrates that indeed France has become relatively unattractive for foreign investors. It is true to say that along with British and German companies, French companies were the most attractive participants in the European wave of mergers and acquisitions between 1993 and 2001. However today, France suffers from a substantial negative takeover balance, with foreign companies investing only ?149,000,000 in takeovers of French companies, compared with the ?336,500,000 invested in foreign countries by French companies for the same purpose.
On 31 March 2006, European Directive 2004/25/EC on Takeover Bids (the ‘Directive’) was implemented into French law through Act No. 2006-387 (commonly called the ‘Loi Anti-OPA’). The objectives of the Directive are twofold: (1) to strengthen legal certainty in cross-border takeover bids; and (2) to ensure the protection of minority shareholders. Furthermore, the Winter Commission, which had the difficult task of paving the way for the drafting of the final proposal for the Directive, came to the conclusion that the Directive must also be considered as a further step towards an integrated securities market in Europe. With these observations in mind, it is difficult to imagine that the European legal institutions would enact a piece of legislation which is meant to render companies within Member States ‘takeover-proof’.
The French legislature has taken a peculiar approach to the subject of takeover bids. With the Loi Anti-OPA, the French Parliament drafted an act which tended to find a compromise between shareholder influence on defensive measures, and the reactive capacities of a company to raise a defence (‘réaction à chaud’). Economists saw the Loi Anti-OPA as a ‘financial and economical inconsistency aimed at defending national “champions” ’. Consequently, it is relevant to examine the French legislation prior to the recent Loi Anti-OPA as well as the Loi Anti-OPA itself in order to analyse its impact on the French takeover regime.

Lorenzo Sasso, ‘Societas Europaea: between Harmonization and Regulatory Competition’ (2007) 4 European Company Law pp. 159-167
Summary:
During the past years in Europe, the possibility of a market for corporate incorporations, namely the freedom of European companies to choose their country for incorporation, has been blocked, in part, by the difficult economic conditions and in part by the operation of national level rules on the conflicts of laws which limit the degree to which a company can choose its applicable law. National level laws also widely differ in their attitude towards the movement of companies from one jurisdiction to another and this factor does not help a resumption of the companies and of the investments in the private equity sector.
This situation has been changed by some judgments of the European Court of Justice that underscored, in the cases of Überseering, Centros, Inspire Art and Sevic, the EU Treaty’s principles of Free Establishment and Movement of Firms. In these cases legal entities and human beings were considered in the same way. This confirmed the ECJ’s approach that originates from Articles 43 and 48 of the EC Treaty which together with some efforts of the EU Legislator have tried to facilitate a mechanism of corporate entry and exit that possibly will encourage a direct competition of the different corporate law systems provided by the European Member States. Along this line, the proposed Directive on Cross-border Transfer of the Registered Offices of Limited Liability Companies and the Directive on Cross-border Mergers (2005/56/EC) try to provide a common solution to the issue of re-incorporation.
In the European market for corporate control, where one size does not fit all, decentralized solutions can permit Member States to continue patterns of diversity, while regulatory arbitrage allows individual firms for which the national model is inappropriate to opt out. Moreover, in an area such as company law, where the configuration of the optimal rules is hotly debated, regulatory competition, if driven by the market from the bottom together with a harmonization of the law implemented by the top through Directives, can lead to a conversion of the European corporate law and build up, at the same time, a ‘market-for-rules’ that is essential for economic growth.
In this paper, I will discuss the role of the legal instrument available for companies since 8 October 2004, namely the Statute for a European Company (SE), underlying some of its applications and implications in the process of harmonization of the law. In particular, I will try to explain why this regulation, even if it is obsolete in some parts and incomplete in some others, being a motivation for regulatory competition, can represent a step forward towards the development of appropriate legal rules.
In the next sections, I will describe the experience of the European legislator trying to create a common model of European Company (part 2) and to what extent nowadays EU law permits companies to migrate from a member country to another one (part 3). Then, analysing the European market for corporate control, I will show how an efficient regulatory competition, in which arbitrage will be motivated by a desire to increase total value rather than the private interests of one group, can be feasible and attractive (parts 4 and 5). Eventually I will summarize adding some conclusions (part 6).

Frederick Lambert, Cornelis de Groot, Anne van Nood, ‘The ABN AMRO Ruling: Some Commentaries’ (2007) 4 European Company Law pp. 168-176

Juris Filip Truyen, ‘Report from Norway’ (2007) 4 European Company Law pp. 177-180

Rolf Dotevall, ‘Report from Sweden’ (2007) 4 European Company Law pp. 180-181

The Department of Company Law, ‘Survey of Legislation and Case Law, March and April 2007′ (2007) 4 European Company Law pp. 182-183

The Department of Company Law, ‘Legal Periodicals: a selection’ (2007) 4 European Company Law pp. 184-185