Docente
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PAOLINI ALESSANDRA
(programma)
Il corso avrà ad oggetto i seguenti temi:
1) Introduction to the course European Company Law
Methodology of the Course
Sources of the European Company Law
Types and Functions of Companies T
he distinction between closely held and publicly traded corporations/companies.
Law versus Contract incorporate affairs. Mandatory Law versus Default Provisions.
Regulatory Competition.
Common structures of Corporations/Companies: legal personality; limited liability; transferability of shares; investor ownership.
2) Cross-Border Establishment and Corporate Mobility
- Real seat theory and incorporation theory
- Right of primary Establishment (Daily Mail, Überseering, Sevic, Cartesio, Vale, Polbud Cases)
3) Right of secondary Establishment (Segers, Centros, Inspire Art Cases)
- Cross-border conversion (Vale, Polbud cases). The recent EU directive on cross-border conversion, merger and division.
- The current Debate: twenty years after Centros decision.
Cross-border conversion in Dir. 2019/2121
4) Formation of a new company
- Setting up a new company: instrument of incorporation- articles of association – preventive control – registration
Validity of obligations entered into by the company
Nullity of the Company
Private companies/public companies/State owned companies
Cases: Job Centre I and II; Ubbong Isolatie BV
5) The essential elements of the company’s financial structure. The concept of company capital; the differences in this regard between continental European and Anglo-American company law; the debate on the advantages and inconveniences of capital-based company law systems compared to those that ignore this concept; the imposition by law of a minimum capital; capital formation and capital contributions; capital maintenance: recapitalise or liquidate rule and its role
6) Capital maintenance
- Dividend distribution
- Non mandatory capital reduction
- Transaction on the company’s own shares
- Financial assistance
Companies with symbolic capital in European law.
7) Annual and consolidated accounts
- annual accounts;
- accounting principles;
- IAS/IFRS principles;
- Consolidated accounts
- Audit
8) Corporate Governance
- What is Corporate Governance?
- ECL corporate governance goals (transparency and engagement of shareholders);
- one tier vs. two tier systems.
- Board of directors
- boards in listed companies;
- Directors’ liability
- Conflict of interests
- Powers of representation
- executive remuneration;
- statutory audit;
9) Shareholders’ meeting
- Shareholders powers;
- Shareholders/Directors relation;
- procedure;
- listed companies and empty voting;
- one share-one vote rule and its abandonment;
- capital increase and pre-emptive rights of shareholders;
- equal treatment of shareholders;
10) Shareholders’ Right Directives
- Shareholder Primacy
11) Mergers and Divisions
- EU Directives
- Types of mergers and divisions
- Cross-border operations
- Equal treatment of shareholders and squeeze-out
12) The Cross-border Merger Directive
13) European Insolvency Regulation
- Preventive restructuring framework;
14) Uniform Company Law
- EEIG
- Societas Europaea
Textbook: N. DE LUCA, European Company Law – Text, Cases and Materials, Cambridge University Press, 2017
[Chapters 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 (except 16.6 and following), 19, 20]
The students are also required to take into account the most recent legislative sources, in particular Directive (UE) 2017/1132.
Some European Court of Justice’s cases will also made available to the students.
Suggested readings (optional):
• L. Enriques, EC company law directives and regulations: how trivial are they?, in University of Pennsylvania journal of economic law, 2006, 1.;
• J. Armour – H. Hansmann – R. Kraakman, The Essential Elements of Corporate Law, available at SSRN: https://ssrn.com/abstract=1436551
• M. Gelter, Centros, the Freedom of Establishment for Companies, and the Court's Accidental Vision for Corporate Law, available at SSRN: https://ssrn.com/abstract=2564765 or http://dx.doi.org/10.2139/ssrn.2564765
• Enriques-Macey, Creditors versus Capital Formation: the case against the European Legal Capital Rules, 2001, available at http://digitalcommons.law.yale.edu
• Miola, Legal Capital and Limited Liability Companies: The European Perspective, in ECFR, 2005.
• G.E. Colombo, International Accounting Principles (IAS/IFRS), Share Capital and Net Worth, ECFR, 2007, 553 ff.;
• Hopt, 2015, Corporate Governance in Europe: A Critical Review of the European Commission's Initiatives on Corporate Law and Corporate Governance, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2644156;
• Belcredi, Ferrarini, The European corporate governance framework: issues and perspectives, ECGI Working paper, 2013, at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2264990
• L. Bebchuck, The Case for increasing Shareholder Power, Discussion Paper No. 500, 12/2004, in Harvard Law Review, Vol. 118, 2005, p. 833-917, at http://www.law.harvard.edu/programs/olin_center/
• J. Schmidt, Cross border mergers, divisions and conversions: accomplishments and deficits of the company law package, in ECFR, 2019,
• Heidenmuller, The Rise and Fall of Regulatory Competition in Corporate Insolvency Law in the European Union, in ECFR, 2019;
• Zhang, Preventive Restructuring Frameworks: A Possible Solution for Financially Distressed Multinational Corporate Groups in the EU, in EBOR, 2019
• Lombardo-Pasotti, The Societas Europaea: a Network Economics Approach, ECFR, 2004
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