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SEMINAR III : COMPANY LAW AND THE EUROPEAN COMMUNITY I

Discussion

This seminar will focus on three main areas:

(a) the aims and legal sources of the company law harmonisation programme;

(b) the implications for the development of company law of that programme and the right of establishment as exemplified by the Centros, Uberseering and Inspire Art cases; and

(c) the conflict of law issues raised by movement of company registered offices.

Prepare from the reading to discuss some of the following issues in small groups:

  • What limitations do the legal bases present for some aspects of the harmonisation programme?
  • What are the limitations of harmonisation?
  • Is it possible to discern a particular theoretical view of the corporation in the EC company law programme?
  • Is there a conflict between the goals of the single market and regulation of corporations?
  • Explain the reasoning of the European Court of Justice in Uberseering and Inspire Art?
  • Has the power of member states to decide on their own approach to linking companies to legal systems - real seat or place of registration been destroyed by the European Court of Justice enforcing the Right of Establishment?
  • What are the implications of the report of the High Experts on Company Law (Winter Report) and the Commissions plane to develop Company Law - where is European Company Law going ("Quo Vadis?")

In the next seminar we will build on the work of this discussion and consider in more detail some specific aspects of the harmonisation programme, as it applies to company law and securities markets regulation. We shall also consider the overall question of whether harmonisation is ultimately about compromise and retreat.

Essential reading

  1. Wouters Jan, "European Company Law: Quo Vadis?" (2000) 37 Common Market Law Review 257 - Library
  2. Case C-208/00 Uberseering BV v Nordic Construction (2002) judgment of 5th November 2002
  3. Case C-167/01 Kamer van Koopshandel en Fabrieken voor Amsterdam v Inspire Art (2003) judgment of 30th September 2003
  4. Press Release of High Level Group of Company Law Experts and Overview of Recommendations of the Final report Brussels 4th November 2002
  5. Communication from the Commission to the Council and the European parliament, Modernising Company law and Enhancing Corporate Governance in the European Union - A Plan to Move Forward COM (2003) 284 final Brussels, 21.5.2003 - extracts attached.
  6. http://ec.europa.eu/policies/index_en.htm is where you will find access to all the Commission's work on this area.
  7. http://ec.europa.eu/dgs/internal_market/index_en.htm proposals to modernise EU Company Law.
  8. For current directives see:
  9. http://ec.europa.eu/dgs/internal_market/index_en.htm

Additional reading

  1. Case C-212/97 Centros Ltd v Erhvervs- og Selskabsstyrelsen [1999] 2 CMLR 551
  2. M. Siems, "Convergence, Competition, Centros and Conflicts of Law: European Company Law in the 21st Century" (2002) 27 European Law Review 47
  3. Werner F. Ebke, "Centros - Some Realities and Some Mysteries" (2000) 48 American Journal of Comparative Law 623 (Full text on Westlaw)
  4. V. Edwards, The EU Twelfth Company Law Directive (1998) Company Lawyer 211 - Westlaw
  5. H. De Wulf & S. Dejonghe, "Netherlands Company Law - Corporate Seats (2004) 15 International Company and Commercial Law Review N20-30 - Westlaw
  6. Andenas M., "Free Movement of Companies", (2003) 119 Law Quarterly Review 221
  7. P. Dyrberg, "Full Free Movement of Companies in the European Union at last?" (2003) 28 European Law Review 528
  8. R. Drury, "Migrating Companies" (1999) 24 European Law Review 354
  9. V. Edwards, EC Company Law, (1999), Clarendon Press Oxford - an excellent comprehensive textbook for reference. Chapters I to IX & XIX deal with the Company Law Harmonisation Programme Directives and Proposals and Chapters XVI to XVIII deal with conflict of laws and freedom of establishment issues.
  10. Carney W.J, "The Political Economy of Competition for Corporation Charters" (1997) 26 Journal of Legal Studies 303. (Full text on Westlaw) - a Chicago School Comparison of USA and EU Company Law.
  11. J. Armour and J. McCahery, After Enron Improving Corporate Law and Modernising Securities Regulation in Europe and the US (Oxford, Hart Publishing, 2006) the Introductory Chapter is available at via the Social Science Research Network: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=910205