{"title":"Report from Greece: The New Corporate Governance Framework","authors":"Alexandros L. Seretakis","doi":"10.54648/eucl2021026","DOIUrl":"https://doi.org/10.54648/eucl2021026","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44239101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses the regulatory discretion of competent national authorities as a mechanism to prevent financial crises, on the example of investment funds and their managers. The ability to impose stricter conditions on fund managers and define the procedures for efficient intervention allows responding efficiently to the financial shocks. Whilst EU law cannot respond quickly enough to the changes in financial markets, Member States and their respective regulatory authorities can provide for a tailor-made approach for each fund and its manager registered within their territories. AIFMD, financial markets authorities, investment funds (managers), MiFID II
本文以投资基金及其管理者为例，讨论了国家主管部门的监管自由裁量权作为预防金融危机的机制。能够对基金经理施加更严格的条件，并确定有效干预的程序，从而能够有效应对金融冲击。虽然欧盟法律无法对金融市场的变化做出足够快的反应，但成员国及其各自的监管机构可以为在其领土内注册的每只基金及其管理人提供量身定制的方法。AIFMD、金融市场管理机构、投资基金（经理）、MiFID II
{"title":"Regulatory Discretion in Financial Markets Law: An Effective Remedy Against Financial Crises?","authors":"Mariia Domina","doi":"10.54648/eucl2021024","DOIUrl":"https://doi.org/10.54648/eucl2021024","url":null,"abstract":"This article discusses the regulatory discretion of competent national authorities as a mechanism to prevent financial crises, on the example of investment funds and their managers. The ability to impose stricter conditions on fund managers and define the procedures for efficient intervention allows responding efficiently to the financial shocks. Whilst EU law cannot respond quickly enough to the changes in financial markets, Member States and their respective regulatory authorities can provide for a tailor-made approach for each fund and its manager registered within their territories.\u0000AIFMD, financial markets authorities, investment funds (managers), MiFID II","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42785938","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The paper focuses on the evolution of the legal regime concerning Foreign Direct Investments (FDIs) both in the EU law and in national law, with special regard for Italy, where special powers on FDIs were recently activated to block Chinese investments. The paper, in the first place, sketches a brief overview on the evolution of such special powers in the last two decades within the EU; in the second place, it assesses the current legal regime at EU level in light of the changes brought by the Covid crisis. At the same time, the paper develops a comparative analysis between the European regime on FDIs and the Chinese one, in order to outline the main legal issues connected to the notion of public control over enterprises investing abroad. Foreign Direct Investments, Investment Regulation, Foreign Subsidies, Chinese Investments, Reg. 452/2019, Covid-related Economic Crisis, State Capitalism, EU-China Economic Relations, Industrial Policy, Golden Shares
{"title":"The ‘Golden Power’ on Foreign Investments in EU Law in the Light of Covid Crisis","authors":"G. Sabatino","doi":"10.54648/eucl2021025","DOIUrl":"https://doi.org/10.54648/eucl2021025","url":null,"abstract":"The paper focuses on the evolution of the legal regime concerning Foreign Direct Investments (FDIs) both in the EU law and in national law, with special regard for Italy, where special powers on FDIs were recently activated to block Chinese investments. The paper, in the first place, sketches a brief overview on the evolution of such special powers in the last two decades within the EU; in the second place, it assesses the current legal regime at EU level in light of the changes brought by the Covid crisis. At the same time, the paper develops a comparative analysis between the European regime on FDIs and the Chinese one, in order to outline the main legal issues connected to the notion of public control over enterprises investing abroad.\u0000Foreign Direct Investments, Investment Regulation, Foreign Subsidies, Chinese Investments, Reg. 452/2019, Covid-related Economic Crisis, State Capitalism, EU-China Economic Relations, Industrial Policy, Golden Shares","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47756392","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article we intend to provide a general overview of the Portuguese legal framework regarding the non-voting preferred shares (NVPS). We have also highlighted some of the issues and concerns that may be the reason to justify the almost no use of such shares. Non-Voting Preferred Shares, Preferred Dividend, Pre-Emption Right, No-Par Value Shares
{"title":"Non-voting Preferred Shares in Portugal: A General Overview","authors":"D. Pessoa","doi":"10.54648/eucl2021022","DOIUrl":"https://doi.org/10.54648/eucl2021022","url":null,"abstract":"In this article we intend to provide a general overview of the Portuguese legal framework regarding the non-voting preferred shares (NVPS). We have also highlighted some of the issues and concerns that may be the reason to justify the almost no use of such shares.\u0000Non-Voting Preferred Shares, Preferred Dividend, Pre-Emption Right, No-Par Value Shares","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46294058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The organizational and operational company purposes of the debtor company terminate in liquidation proceedings. In addition, the nonfinancial sustainability elements vanish in a piecemeal selling. Through a selling as a going concern, the operational company purpose and sustainability elements may be transferred to a byer company. In restructuring proceedings, both the organizational and operational company purposes remain, but the shareholder primacy shifts to a creditor priority. When choosing between liquidation and restructuring proceedings, there are two tests: the viability test and the best-interests-of-creditors test. In these tests, all obligatory non-financial sustainability elements, such as environmental requirements laid down in the law, must be considered. Voluntary non-financial sustainability investments for implementing the company operational purpose are allowed also during the restructuring plan if they benefit the creditors.
{"title":"Company Purpose in the Context of Business Sustainability and Insolvency Proceedings","authors":"Tu Linna","doi":"10.54648/eucl2021021","DOIUrl":"https://doi.org/10.54648/eucl2021021","url":null,"abstract":"The organizational and operational company purposes of the debtor company terminate in liquidation proceedings. In addition, the nonfinancial sustainability elements vanish in a piecemeal selling. Through a selling as a going concern, the operational company purpose and sustainability elements may be transferred to a byer company. In restructuring proceedings, both the organizational and operational company purposes remain, but the shareholder primacy shifts to a creditor priority. When choosing between liquidation and restructuring proceedings, there are two tests: the viability test and the best-interests-of-creditors test. In these tests, all obligatory non-financial sustainability elements, such as environmental requirements laid down in the law, must be considered. Voluntary non-financial sustainability investments for implementing the company operational purpose are allowed also during the restructuring plan if they benefit the creditors.","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41804406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The analysis presented in this article suggests that the Digital Markets Act (DMA) would be a game-changer for the digital economy. From a legal perspective, the DMA should be regarded as a sector-specific, ‘ex ante’ regulation, i.e., a ‘lex specialis’ in relation to the general EU competition law, which relies on ‘ex post’ enforcement. The DMA restricts self-interested behaviour by ‘big tech’ and grants smaller competitors affirmative competitive rights, even where there is no anticompetitive behaviour by big tech under general EU competition law. By its terms, the DMA is aimed at ensuring ‘contestable and fair digital markets’, irrespective of consumer welfare. To achieve this objective, it will impose generic obligations on big tech that resemble remedies previously employed by the Commission in specific antitrust enforcement measures or that address antitrust complaints that the Commission is currently investigating. Unlike conventional EU competition law, despite the DMA’s stated purpose, its main effect is not protection of European internet users (although they may benefit indirectly), but the protection of smaller European competitors against US ‘big tech’. These smaller competitors would no longer need to resort to the current system of ex post enforcement against abuse of monopoly power, which is believed to be insufficiently equipped to deal with digital monopoly power. Antitrust proceedings take a long time (five years or more is no exception), and in the meantime the competitive harm can increase. In many cases, the DMAwould make reliance on this slow, ex post enforcement program unnecessary. Instead, it would enable ‘ex ante’ enforcement actions to ensure competitive markets under the threat of very large fines. Due to its far-reaching terms, the DMA would likely require changes to the business models of big tech. The DMA restates Adam Smith’s famous quip ‘[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest’. For the digital economy, the saying would be rewritten as: ‘It is not from the regard for their own interest of the gatekeepers that we expect our dinner, but from their benevolence’. Mandatory ‘big tech benevolence’ may well benefit ‘business users’, i.e., people or companies that use platforms to provide goods or services to internet users. Changes in big tech’s business models prompted by the DMA, however, might also affect free internet services. In any event, the DMAwould give rise to significant changes and friction in the operation of the digital economy, which may result in frequent disputes and enforcement actions.
{"title":"The Proposed EU Digital Markets Act: A New Era for the Digital Economy in Europe","authors":"Penelope A. Bergkamp","doi":"10.54648/eucl2021020","DOIUrl":"https://doi.org/10.54648/eucl2021020","url":null,"abstract":"The analysis presented in this article suggests that the Digital Markets Act (DMA) would be a game-changer for the digital economy. From a legal perspective, the DMA should be regarded as a sector-specific, ‘ex ante’ regulation, i.e., a ‘lex specialis’ in relation to the general EU competition law, which relies on ‘ex post’ enforcement. The DMA restricts self-interested behaviour by ‘big tech’ and grants smaller competitors affirmative competitive rights, even where there is no anticompetitive behaviour by big tech under general EU competition law. By its terms, the DMA is aimed at ensuring ‘contestable and fair digital markets’, irrespective of consumer welfare. To achieve this objective, it will impose generic obligations on big tech that resemble remedies previously employed by the Commission in specific antitrust enforcement measures or that address antitrust complaints that the Commission is currently investigating.\u0000Unlike conventional EU competition law, despite the DMA’s stated purpose, its main effect is not protection of European internet users (although they may benefit indirectly), but the protection of smaller European competitors against US ‘big tech’. These smaller competitors would no longer need to resort to the current system of ex post enforcement against abuse of monopoly power, which is believed to be insufficiently equipped to deal with digital monopoly power. Antitrust proceedings take a long time (five years or more is no exception), and in the meantime the competitive harm can increase. In many cases, the DMAwould make reliance on this slow, ex post enforcement program unnecessary. Instead, it would enable ‘ex ante’ enforcement actions to ensure competitive markets under the threat of very large fines.\u0000Due to its far-reaching terms, the DMA would likely require changes to the business models of big tech. The DMA restates Adam Smith’s famous quip ‘[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest’. For the digital economy, the saying would be rewritten as: ‘It is not from the regard for their own interest of the gatekeepers that we expect our dinner, but from their benevolence’. Mandatory ‘big tech benevolence’ may well benefit ‘business users’, i.e., people or companies that use platforms to provide goods or services to internet users. Changes in big tech’s business models prompted by the DMA, however, might also affect free internet services. In any event, the DMAwould give rise to significant changes and friction in the operation of the digital economy, which may result in frequent disputes and enforcement actions.","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42739698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"On the Stability of the EU Banking System Amidst the Pandemic","authors":"Christos V. Gortsos","doi":"10.54648/eucl2021019","DOIUrl":"https://doi.org/10.54648/eucl2021019","url":null,"abstract":"","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42164118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article discusses and compares Belgian and Dutch gender quota legislation. In Belgium, a mandatory quota that imposes sanctions for non-compliance was introduced in 2011. From 2013–2020, a target figure (streefcijfer) was in force in the Netherlands. This target figure applied on a comply-or-explain basis with no sanctions for non-compliance. The Netherlands is currently in the process of introducing mandatory gender quota, as the target figure did not yield the desired result of increasing the number of women on boards to the required level. This article discusses the key features of the Belgian mandatory quota and of the Dutch former target figure and proposed mandatory quota. Subsequently, this article compares the Belgian and Dutch quota legislation in terms of introduction of the quota, scope, application, implementation deadlines and sanctions. The analysis of the existing Belgian quota and the proposed Dutch quota legislation reveals that there are some similarities with regard to their application and sanctions. This article concludes with a discussion about what the Dutch legislator can learn from the Belgian gender quota legislation in order to succeed in increasing the number of women on corporate boards in the Netherlands. gender equality, gender quota, women, corporate law, corporate governance, women on boards
{"title":"Gender Quotas for Corporate Boards: A Comparison Between Belgium and the Netherlands","authors":"Rosalien A. van ‘t Foort-Diepeveen","doi":"10.54648/eucl2021016","DOIUrl":"https://doi.org/10.54648/eucl2021016","url":null,"abstract":"This article discusses and compares Belgian and Dutch gender quota legislation. In Belgium, a mandatory quota that imposes sanctions for non-compliance was introduced in 2011. From 2013–2020, a target figure (streefcijfer) was in force in the Netherlands. This target figure applied on a comply-or-explain basis with no sanctions for non-compliance. The Netherlands is currently in the process of introducing mandatory gender quota, as the target figure did not yield the desired result of increasing the number of women on boards to the required level. This article discusses the key features of the Belgian mandatory quota and of the Dutch former target figure and proposed mandatory quota. Subsequently, this article compares the Belgian and Dutch quota legislation in terms of introduction of the quota, scope, application, implementation deadlines and sanctions. The analysis of the existing Belgian quota and the proposed Dutch quota legislation reveals that there are some similarities with regard to their application and sanctions. This article concludes with a discussion about what the Dutch legislator can learn from the Belgian gender quota legislation in order to succeed in increasing the number of women on corporate boards in the Netherlands.\u0000gender equality, gender quota, women, corporate law, corporate governance, women on boards","PeriodicalId":11843,"journal":{"name":"European Company Law","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45578537","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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