European Company Law

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3098 KLI ECLcover Vol5-nr5:v4 11-09-2008 15:12 Pagina 4

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Author Guide [A] Aim of the Journal

European Company Law has been designed to be the ideal working tool for all corporate lawyers with a European practice. The journal deals with European company law in a broad sense, including such topics as codetermination law, insolvency law and securities law. All contributions should follow ECL’s SCIP-principle, which welcomes articles that are scientific, concise, informative and practical.

[B] Contact Details

Manuscripts should be submitted to ECL’s main editor, e-mail: s.m.bartman@law.leidenuniv.nl and to its editorial secretary, e-mail:

c.degroot@law.leidenuniv.nl [C] Submission Guidelines

[1] Manuscripts should be submitted electronically, in Word format, via e-mail.

[2] Submitted manuscripts are understood to be final versions. They must not have been published or submitted for publication elsewhere.

[3] Contributions should have a range of approximately 4,000 to 5,000 words (footnotes excluded).

[4] Only articles in English will be considered for publication. Manuscripts should be written in standard English, while using ‘ize’ and ‘ization’ instead of ‘ise’ and ‘isation’. Preferred reference source is the Oxford English Dictionary. However, in case of quotations the original spelling should be maintained. In case the complete article is written by an American author, US spelling may also be used.

[5] The article should contain an abstract, a short summary of about 100 words. This abstract will also be added to the free search zone of the Kluwer Online database.

[6] A brief biographical note, including both the current affiliation as well as the e-mail address of the author(s), should be provided in the first footnote of the manuscript.

[7] An article title should be concise, with a maximum of 70 characters.

[8] Special attention should be paid to quotations, footnotes, and references. All citations and quotations must be verified before submission of the manuscript. The accuracy of the contribution is the responsibility of the author. The journal has adopted the Association of Legal Writing Directors (ALWD) legal citation style to ensure uniformity. Citations should not appear in the text but in the footnotes.

Footnotes should be numbered consecutively, using the footnote function in Word so that if any footnotes are added or deleted the others are automatically renumbered.

[9] Authors should make sure that abbreviations are explained when used for the first time.

[10] Tables should be self-explanatory and their content should not be repeated in the text. Do not tabulate unnecessarily. Tables should be numbered and should include concise titles.

[11] Heading levels should be clearly indicated.

For further information on style, see the House Style Guide on the website: www.kluwerlaw.com/ContactUs/

[D] Review Process

[1] Before submission to the publisher, manuscripts will be reviewed by the Board of Editors and may be returned to the author for revision.

[2] The journal’s policy is to provide an initial assessment of the submission within thirty days of receiving the posted submission. In cases where the article is externally referred for review, this period may be extended.

[3] The editors reserve the right to make alterations as to style, punctuation, grammar etc.

[4] In general the author will not receive proofs of the article. Proofreading will be taken care of by the Board of Editors.

[E] Copyright

[1] Publication in the journal is subject to authors signing a ‘Consent to Publish and Transfer of Copyright’ form.

[2] The following rights remain reserved to the author: the right to make copies and distribute copies (including via e-mail) of the contribution for own personal use, including for own classroom teaching use and to research colleagues, for personal use by such colleagues, and the right to present the contribution at meetings or conferences and to distribute copies of the contribution to the delegates attending the meeting; the right to post the contribution on the author’s personal or institutional web site or server, provided acknowledgement is given to the original source of publication; for the author’s employer, if the contribution is a ‘work for hire’, made within the scope of the author’s employment, the right to use all or part of the contribution for other intra-company use (e.g. training), including by posting the contribution on secure, internal corporate intranets; and the right to use the contribution for his/her further career by including the contribution in other publications such as a dissertation and/or a collection of articles provided acknowledgement is given to the original source of publication.

[3] The author shall receive for the rights granted (subject to signing the ‘Consent to Publish and Transfer of Copyright’ form) two free copies of the issue of the journal in which the article is published, plus a PDF file of his/her article.

C O L O P H O N

European Company Law

EUROPEAN COMPANY LAW 152 JUNE 2014, VOLUME 11, ISSUE 3

E D I T O R I A L B O A R D

STEEF BARTMAN (Main Editor), Professor of Company Law at Leiden University, the Netherlands

e-mail: s.m.bartman@law.leidenuniv.nl

ANDREAS CAHN Director of the Institute for Law and Finance, Johann Wolfgang Goethe-University, Frankfurt, Germany e-mail: cahn@ilf.uni-frankfurt.de

BARBARA DE DONNO Professor of Comparative Private Law, LUISS Guido Carli, Rome, Italy

e-mail: bdedonno@luiss.it

ADRIAAN DORRESTEIJN Professor of International Company Law at Utrecht University, the Netherlands

e-mail: decaan@law.uu.nl

CHRISTOPH VAN DER ELST Professor of Law and Management, Tilburg University, The Netherlands

e-mail: C.vdrElst@uvt.nl

HOLGER FLEISCHER Professor of Law, Director of the Max Planck Institute for Comparative and International Private Law, Hamburg, Germany

e-mail: fleischer@mpipriv.de

MARCO LAMANDINI Full Professor of Company Law at the University of Bologna, Italy

e-mail: marcolamandini@forschung.it FRANCISCO MARCOS IE Law School, Madrid, Spain e-mail: Francisco.Marcos@ie.edu

MICHEL MENJUCQ Professor of Company Law at the University of Panthéon-Sorbonne, Paris, France

e-mail: mmenjucq@club-internet.fr

KID SCHWARZ Professor of Company Law at Maastricht University, the Netherlands

e-mail: c.schwarz@pr.unimaas.nl

DANIEL STATTIN Professor of Corporate Law, Uppsala University, Uppsala, Sweden

e-mail: Daniel.Stattin@jur.uu.se

RAFAL STROINSKI Warsaw University, Poland e-mail: Rafal.Stroinski@uw.edu.pl

ROMAN TOMASIC Chair in Company Law, Durham Law School, Durham University, United Kingdom

e-mail: r.a.tomasic@durham.ac.uk

ERIK WERLAUFF Professor of Company and Business Law at Aalborg University, Denmark

e-mail: erik@werlauff.com

JAAP WINTER Professor of International Company Law at the Universiteit van Amsterdam, the Netherlands e-mail: jaap.winter@debrauw.com

C O N T R I B U T I N G I N T E R N A T I O N A L L A W F I R M S

ALLEN & OVERY Jan Louis Burggraaf e-mail: JanLouis.Burggraaf@AllenOvery.com

BAKER & MCKENZIE Jeroen Hoekstra e-mail: Jeroen.Hoekstra@BAKERNET.com DE BRAUW Geert Potjewijd

e-mail: geert.potjewijd@debrauw.com DLA PIPER Marnix Holtzer

e-mail: marnix.holtzer@dlapiper.com HOUTHOFF BURUMA André G. de Neve e-mail: a.de.neve@houthoff.com

LOYENS & LOEFF / UTRECHT UNIVERSITY Tineke Lambooy e-mail: t.lambooy@law.uu.nl

STIBBE Christian van Megchelen e-mail: christian.vanmegchelen@stibbe.com C O U N T R Y R E P O R T E R S

KARIN EKLUND University Lecturer in Corporate Law, Uppsala University, Uppsala, Sweden

e-mail: Karin.Eklund@jur.uu.se

THOMAS PAPADOPOULOS Lecturer at the Department of Law of the European University, Nicosia, Cyprus

e-mail: T.Papadopoulos@euc.ac.cy

FEDERICO RAFFAELE Assistant Professor of Comparative Law and Research Fellow in Corporate Law, LUISS Guido Carli, Rome, Italy

e-mail: fraffaele@luiss.it

FRANÇOIS CARLE & ISABELLE DESJARDINS

e-mail: francois.carle@ey-avocats.com, idesjardins@carlara.

com

BOHUMIL HAVEL Institute of Law, Czech Academy of Science, Prague, Czech Republic

e-mail: bhavel@kop.zcu.cz

FRANCISCO MARCOS Instituto de Empresa Business School, Madrid, Spain

e-mail: Francisco.Marcos@ie.edu

PAVLOS MASOUROS Assistant Professor of Corporate Law, Leiden University, the Netherlands, Attorney-at-Law, Athens, Greece

e-mail: p.masouros@law.leidenuniv.nl

BEATE SJÅFJELL Centre for European Law, Faculty of Law, University of Oslo

e-mail: b.k.sjafjell@jus.uio.no

CHRISTOPH TEICHMANN University of Heidelberg, Germany e-mail: christoph.teichmann@urz.uni-heidelberg.de ERIK WERLAUFF Aalborg University, Denmark e-mail: erik@werlauff.com

E D I T O R I A L S E C R E T A R Y

CORNELIS DE GROOT Leiden University, the Netherlands e-mail: c.degroot@law.leidenuniv.nl

PAVLOS MASOUROS Leiden University, the Netherlands e-mail: p.masouros@law.leidenuniv.nl

THOMAS PAPADOPOULOS European University, Nicosia, Cyprus e-mail: T.Papadopoulos@euc.ac.cy

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E-mail: kluwerlaw@turpin-distribution.com European Company Law Journal is published six times per year. Subscription prices for 2014 including postage and handling:

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S H O R T T I T L E A N D Q UO T A T I O N

ISSN: 1572-4999

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Permission to use this content must be obtained from the copyright owner. Please apply to: Permissions Department, Wolters Kluwer Legal, 76 Ninth Avenue, 7th floor, New York, NY10011, USA.

E-mail: permissions@kluwerlaw.com.

European Company Law (ECL) is published under the aegis of the Centre for European Company Law (CECL), an academic partnership of the Universities of Leiden, Utrecht, Maastricht, the Netherlands Uppsala (Sweden) and Rome, LUISS Guido Carli (Italy) (www.cecl.nl). The purpose of CECL is to further the study of company law by focusing on supranational issues. These include both developments in the EU and on other international levels, as well as comparative law. Leiden University acts as the leading partner in CECL, with Professor Steef M.

Bartman, as coordinating director. ECL aims to be interesting for both practising and academic lawyers in the field of European company law.

There are six issues of ECL per year. Two of these (April and October) concentrate on specific topics. The other issues contain articles on various subjects and may also include country reports of a general nature, highlighting important developments in a number of EU jurisdictions, as well as columns that offer summaries of recent EU legislation, ECJ case law and of selected articles from various national legal periodicals.

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Under Dutch law, company directors are under an obligation to be guided by ‘the interests of the company’. The content and interpretation of this norm of ‘company interest’ remains a topic of discussion. Partly, this can be explained by the character of the norm and by the diversity of situations in which the matter of concrete application of the norm has been raised over the years. In the discussion surrounding this topic reference has been made to the English guideline of ‘enlightened shareholder value’ as enacted in the Companies Act 2006, which is part of ‘the duty to promote the success of the company’.

Albert F. Verdam

Can National Company Law Require a Branch of a Foreign Company to Have an Independent Name?

With a basis in long-standing Danish company law but also drawing on European legal arguments valid for all EU and EEA countries, this contribution considers the question of whether a host country can legally require a foreign company to think up an independent name for its branch in the host country in addition to the demand that the branch name must repeat the company’s name, its nationality, and include the designation ‘branch’.

Erik Werlauff

MiFID II: New Governance Rules in Relation to Investment Firms

The European Parliament and the European Committee proposed a new ‘Markets in Financial Instruments Directive’ (MiFID II) in order to replace the Directive 2004/39/EG (the MiFID framework directive (MiFID I)) recently. The EP and EC also proposed a new MiFID II-Regulation. MiFID II stipulates rules with respect to providing services in financial instruments by banks and investment firms, as well as the operation of regulated markets by market operators.

Rik Mellenbergh

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178 189 190 192

Company Law as a Restriction to Free Movement: Examination of the Notion of

‘Restriction’ Using Company Law as the Frame of Reference

Focusing on recent judgments from the Court of Justice of the European Union, this article investigates how the notion of ‘restriction’ – which is the first step in

examining whether there is an infringement of the free movement rights – is used in cases involving company law measures. There is evidence that non-discriminatory obstacles to free movement found in company law can be restrictions. However, recent cases show that the Court may be willing to apply a more restrictive approach where only non-discriminatory measures that have a qualified deterrent effect may constitute restrictions.

Karsten Engsig Sørensen

Columns

Survey of Legislation and Case Law, January & February 2014 Paul Jager

Legal Periodicals: A Selection Stephan Rammeloo

Book Review

Eric W. Orts, Business Persons: A Legal Theory of the Firm, Oxford University Press, 2013

Arie Van Hoe

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From Simplified Companies to One- Man Limited Enterprises ^*

B A R B A R A D E D O N N O , P R O F E S S O R O F C O M P A R A T I V E L A W A T L U I S S G U I D O C A R L I I N R O M E

Small and medium-sized enterprises (as well as micro ones) make use of the company not only for the joint exercise of an enterprise with limited liability, but also, and above all, for the individual exercise of it.

The company law of the western countries meets this need by gradually modifying the provisions governing public and private companies devoted to enterprises of small and medium size, with few members or only a single member, close and which do not raise capital by selling shares to the public.

As to public companies, in 1994 Germany amends the AktG by allowing some simplifications for the so-called kleine

Aktiengesellschften. In France, in the same year, next to the société anonyme - sa is introduced the new sociètè par actions simplifiée – sas, a destructured company to be used to create a corporate joint venture among large companies. In 1999, the sas become a tool available to any kind of members, highly flexible, which can also be held in sole proprietorship (sasu) and whose articles of association are free to establish company-specific rules on the structure, operation and management of the company, as well as restrictions on the negotiability of shares. The other side of coin is that such companies are prohibited from seeking funding by publicly offering their shares.

Following the example of the German Gesellschaft mit beschränkter Haftung – GmbH, introduced in 1892, many civil law jurisdictions feel the need for a company form more agile and flexible than the public company. The limited liability company is therefore introduced in France in 1925, in Switzerland in 1936 and in Italy with the civil code of 1942.

In common law jurisdictions, the more flexible regulation of UK companies and US corporations establishes higher charges and formalities only for public companies and corporations, preserving the wide will of the shareholders of English limited liability companies – Ltd and of the US close corporations.

As for limited liability companies, the possibility to form one- member companies widespread also in the Countries where the

contractual view of the company was more alive and therefore a one-man company has to be liquidated (in France before 1985) or the single member is fully liable (in Italy before 2003). In France, following the example of many jurisdictions such as Germany, Netherlands, Denmark and Belgium, in 1985 the legislator amends the definition of company and introduces the Entreprise

Unipersonnelle à Responsabilité Limitée – EURL, a one-man limited liability company with more flexible rules (e.g., about one-man resolutions).

In 1989, the XII Directive on one-man companies requires all Member States to allow the run of a one-man limited enterprise having the form of limited liability company or of asset partitioning destined to the run of a business (solution then existing only in Portugal). All Member States which at the time still did not recognize one-man companies chose the easiest solution of the one-man limited liability company, even surpassing the principle of the company as body that arises from a ‘contrat’

between two or more members.

Some jurisdictions have further amended their law on limited liability companies, enhancing the flexibility of national legislation mainly with reference to the minimum capital required, even due to the increasing competition among EU jurisdictions, where English Ltd. is in pole position, especially after the EU Court of Justice widened the scope of the right of establishment, allowing companies incorporated in one-Member State to have its headquarters (the so-called real or administrative seat) in another Member State without being obliged to dissolve in the Country of origin and to reincorporate in the Country of destination.

The common law approach to the company’s capital, that does not impose a compulsory minimum capital, has been introduced through the most destructured models of limited liability

companies such as the German Unternehmehegesellschaft – UG, the French so called société à responsabilitè limitée - sarl à un euro, the Belgian sociétè privée à responsabilité limitée - sprl starter and the Italian società a responsabilità limitata semplificata - srls. A minimum capital is not required by the US State corporate law and has been introduced in the United Kingdom only for public

* For more details about bibliography on comparative and EU company law, see D. Corapi – B. De Donno, European Corporate Law, in European Private Law. A Handbook vol. II (M. Bussani & F. Werro eds., Stämpfli/Carolina Academic Press/Bruylant 2014).

E D I T O R I A L

De Donno, Barbara. ‘From Simplified Companies to One-Man Limited Enterprises’. European Company Law 11, no. 3 (2014): 155–156.

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companies (not for limited liabilities companies) to implement the second EU directive.

In the civil law simplified forms of limited liability companies, the founders may choose whether the initial capital is even just one Euro, but the regulatory framework protecting the integrity of the capital has not been generally abolished.

This reform has enabled the promotion of micro and small- sized businesses by reducing the initial investment, simplifying the incorporation procedure and cutting down the start-up costs. The simplified limited liability company is a valuable technique for the promotion of start-ups, to be supported by business incubator activities, useful to promote a shift from a perspective of being employee to a perspective of being entrepreneur. Nevertheless, good intentions must deal with credit needs that are often satisfied by personal guarantees which nullify the encouraged company’s under-capitalization.

The simplified limited liability company confirms the trend to use the limited liability companies as a link between companies organized on a personal basis and partnerships on the one hand and more structured company forms seeking funding on the risk capital market on the other hand. This trend is particularly evident for US and English common law, where were introduced new forms of doing business even more flexible than corporations and companies and more similar to partnerships like US Limited Liability Companies – LLC and the less successful English Limited Liability Partnerships – LLP.

Nevertheless, it is necessary to consider that the limited liability company is a company form less harmonized than the public company, recipient of most of the company law directives and recommendations. The reduced presence of EU rules weaken barriers to entry of foreign models. However, a defence can be found in the legal tradition of each Country (path dependency), now well regarded by EU law oriented to valorize the differences between Member States laws and to use soft law instruments (recommendations) instead of directives and regulations.

The evolution of the simplified forms of limited liability company is represented by the French law on the Entrepreneur individual à responsabilitè limité – EIRL that, resuming a proposal of the 80s, has introduced detailed provisions which since 2011 allow the individual entrepreneur to allocate part of his personal assets to the run of a business and to protect his personal assets without creating a separate legal entity. The entrepreneur shall enter into a register a declaration of destination of the goods and shall draw up the annual accounts.

The French EIRL follows the Portuguese example and echoes and perfects the US series law and the Italian solution of the public company segregation of assets for a specific business. It offers some interesting insights as it deal a further blow to the traditional principle of unity of the patrimony and is a prelude for future interesting developments in enterprise and company law resulting from its transplant in different countries.

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