660The current common framework for bank crisis management and national deposit guarantee schemes (CMDI) is tailored for banks which are considered too big (or too complex) to fail. Smaller banks are de facto excluded from the application of resolution, even though they are obliged to contribute to its functioning. In practice, not even the size element has been decisive and the crises of significant as well as less significant institutions have been managed at the national level instead of within the framework and conditions foreseen by the BRRD. The consequent and persistent fragmentation in the European financial market requires that the dichotomy between resolution and liquidation be overcome and that the scope of resolution also include smaller banks. The paper analyses the main reforms needed to achieve this goal, including the European Commission’s recent proposal to revise the CMDI.
{"title":"The Crisis Management of Smaller Banks: Perspectives of Reform","authors":"Irene Mecatti","doi":"10.2139/ssrn.4602928","DOIUrl":"https://doi.org/10.2139/ssrn.4602928","url":null,"abstract":"660The current common framework for bank crisis management and national deposit guarantee schemes (CMDI) is tailored for banks which are considered too big (or too complex) to fail. Smaller banks are de facto excluded from the application of resolution, even though they are obliged to contribute to its functioning. In practice, not even the size element has been decisive and the crises of significant as well as less significant institutions have been managed at the national level instead of within the framework and conditions foreseen by the BRRD. The consequent and persistent fragmentation in the European financial market requires that the dichotomy between resolution and liquidation be overcome and that the scope of resolution also include smaller banks. The paper analyses the main reforms needed to achieve this goal, including the European Commission’s recent proposal to revise the CMDI.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"17 1","pages":"660 - 691"},"PeriodicalIF":0.6,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139199173","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":"Gerald Spindler (1960–2023)","authors":"Christoph Teichmann","doi":"10.1515/ecfr-2023-0030","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0030","url":null,"abstract":"","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"359 ","pages":"591 - 592"},"PeriodicalIF":0.6,"publicationDate":"2023-11-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139204391","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}
519This work compares the general rules governing the unauthorised agent (falsus procurator) in French law with those provided for in French company law for persons acting in the name of a company in formation (Article 1843 of the Code civil and Article L. 210-6 para. 2 of the Code de commerce), in order to deduce the similarities and differences between the two sets of legal rules.
{"title":"Unauthorized Agent and Company in Formation in French Law","authors":"Mauricio Troncoso","doi":"10.1515/ecfr-2023-0016","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0016","url":null,"abstract":"<jats:target target-type=\"next-page\">519</jats:target>This work compares the general rules governing the unauthorised agent (falsus procurator) in French law with those provided for in French company law for persons acting in the name of a company in formation (Article 1843 of the Code civil and Article L. 210-6 para. 2 of the Code de commerce), in order to deduce the similarities and differences between the two sets of legal rules.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"41 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540230","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}
547Leveraged buyout (LBO) transactions are corporate acquisitions financed with multiple layers of debt and equity and form a large subset of the leveraged finance markets. In European LBOs various creditor-categories, the priorities, control and restructuring options are invariably controlled by intercreditor agreements. They set out a basis for a privatised insolvency procedure. Such privatised procedures are often considered both theoretically and practically impossible because of the risk of strategic creditor actions, the incomplete contracting problem, the incentive effects of agency costs and the difficulties of creditor coordination. This article sets out empirical findings how English law governed intercreditor agreements deal with strategic creditor actions and difficulties in creditor coordination, while creating a structured bargaining space for resolution of financial distress. The empirical analysis consists of content analysis of market ICAs and interviews. I argue that contractual solutions for dealing with financial distress in corporate finance are both theoretically and practically possible. ICAs deal with the most important strategic creditor actions and enable effective restructuring to take place contractually. Also, they can operate between sophisticated multi-round players and without necessarily resorting to the statutory procedures.548
{"title":"Intercreditor Agreement and Contractual Restructuring of LBOs","authors":"Mika J. Lehtimäki","doi":"10.1515/ecfr-2023-0020","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0020","url":null,"abstract":"<jats:target target-type=\"next-page\">547</jats:target>Leveraged buyout (LBO) transactions are corporate acquisitions financed with multiple layers of debt and equity and form a large subset of the leveraged finance markets. In European LBOs various creditor-categories, the priorities, control and restructuring options are invariably controlled by intercreditor agreements. They set out a basis for a privatised insolvency procedure. Such privatised procedures are often considered both theoretically and practically impossible because of the risk of strategic creditor actions, the incomplete contracting problem, the incentive effects of agency costs and the difficulties of creditor coordination. This article sets out empirical findings how English law governed intercreditor agreements deal with strategic creditor actions and difficulties in creditor coordination, while creating a structured bargaining space for resolution of financial distress. The empirical analysis consists of content analysis of market ICAs and interviews. I argue that contractual solutions for dealing with financial distress in corporate finance are both theoretically and practically possible. ICAs deal with the most important strategic creditor actions and enable effective restructuring to take place contractually. Also, they can operate between sophisticated multi-round players and without necessarily resorting to the statutory procedures.<jats:target target-type=\"next-page\">548</jats:target>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"21 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138543569","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}
438The recently adopted Corporate Sustainability Reporting Directive (CSRD) requires all large undertakings as well as listed SMEs to report on sustainability matters. Albeit not in the direct scope of the CSRD, non-listed SMEs will be de facto obliged by their business partners and investors to report accordingly. Hence, a separate reporting standard for non-listed SMEs is of pivotal importance. The CSRD, however, fails to endow the European Commission with the necessary delegated legislative power. Yet, EFRAG plans to develop standards specifically designed for non-listed SMEs. The European Commission may and should publish those standards as non-binding recommendations under Art. 288 para. 5 TFEU. Prior to that, the Commission must feed those standards into the endorsement procedure established by the CSRD regarding delegated acts.439
{"title":"CSRD Sustainability Reporting For Non-listed SMEs: European Regulators Remain Challenged","authors":"Sina Allgeier, Robert Feldmann","doi":"10.1515/ecfr-2023-0019","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0019","url":null,"abstract":"<jats:target target-type=\"next-page\">438</jats:target>The recently adopted Corporate Sustainability Reporting Directive (CSRD) requires all large undertakings as well as listed SMEs to report on sustainability matters. Albeit not in the direct scope of the CSRD, non-listed SMEs will be de facto obliged by their business partners and investors to report accordingly. Hence, a separate reporting standard for non-listed SMEs is of pivotal importance. The CSRD, however, fails to endow the European Commission with the necessary delegated legislative power. Yet, EFRAG plans to develop standards specifically designed for non-listed SMEs. The European Commission may and should publish those standards as non-binding recommendations under Art. 288 para. 5 TFEU. Prior to that, the Commission must feed those standards into the endorsement procedure established by the CSRD regarding delegated acts.<jats:target target-type=\"next-page\">439</jats:target>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"19 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540201","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}
409As part of the 2019 reform of the European System of Financial Supervision, the three European Supervisory Authorities were granted a completely new convergence tool in Article 29a to promote a common supervisory culture. This tool allows them to identify up to two Union Strategic Supervisory Priorities that the National Competent Authorities shall take into account when drawing up their work programme. The article provides a doctrinal legal analysis of each procedural step in Article 29a; from information gathering to assessment of national work programmes and follow-up measures. On this basis, it is argued that Article 29a has expanded the scope of the ESAs’ existing toolkit; from the operational to the strategic level. Hereby the USSPs have essentially brought a new strategic orientation to the former level 3 of the Lamfalussy process. However, this institutional development also raises several key challenges related to the ESA/NCA relationship that call for attention in the further development of this convergence tool.410
{"title":"Article 29a – Towards a new Strategic Dimension in Supervisory Convergence?","authors":"Niels Skovmand Rasmussen, Nina Dietz Legind","doi":"10.1515/ecfr-2023-0022","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0022","url":null,"abstract":"<jats:target target-type=\"next-page\">409</jats:target>As part of the 2019 reform of the European System of Financial Supervision, the three European Supervisory Authorities were granted a completely new convergence tool in Article 29a to promote a common supervisory culture. This tool allows them to identify up to two Union Strategic Supervisory Priorities that the National Competent Authorities shall take into account when drawing up their work programme. The article provides a doctrinal legal analysis of each procedural step in Article 29a; from information gathering to assessment of national work programmes and follow-up measures. On this basis, it is argued that Article 29a has expanded the scope of the ESAs’ existing toolkit; from the operational to the strategic level. Hereby the USSPs have essentially brought a new strategic orientation to the former level 3 of the Lamfalussy process. However, this institutional development also raises several key challenges related to the ESA/NCA relationship that call for attention in the further development of this convergence tool.<jats:target target-type=\"next-page\">410</jats:target>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"10 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540204","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}
447Investors’ individual reliance on misstated inside information as an element of causation in securities litigation has provoked criticism. Scholarship has long acknowledged that a reliance requirement is not justified as damage may occur without an investor’s reliance on misstated inside information in the secondary market. This article analyses the reliance requirement in select European jurisdictions (the Netherlands, Germany, Sweden, Norway, Denmark, Finland, and the United Kingdom) and the United States. The article investigates whether a reliance requirement exists in the secondary market litigation regime in said jurisdictions and analyses whether a presumption of reliance exists to fulfil the reliance requirement. The article argues that most of the suggested solutions to resolve the reliance problem are not entirely satisfactory. An often-suggested presumption of reliance, while leavening the investors’ burden of proof, keeps the reliance requirement in place. This article submits that proof of individual investors’ reliance should not be required in secondary market inside information misstatement cases. Discarding the reliance requirement altogether makes any presumptions redundant as well.448
{"title":"Moving Past Reliance – The Problem of a Reliance Requirement in Secondary Market Securities Litigation and Solutions from Select Jurisdictions","authors":"Heidi M. K. Yli-Kankahila","doi":"10.1515/ecfr-2023-0023","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0023","url":null,"abstract":"<jats:target target-type=\"next-page\">447</jats:target>Investors’ individual reliance on misstated inside information as an element of causation in securities litigation has provoked criticism. Scholarship has long acknowledged that a reliance requirement is not justified as damage may occur without an investor’s reliance on misstated inside information in the secondary market. This article analyses the reliance requirement in select European jurisdictions (the Netherlands, Germany, Sweden, Norway, Denmark, Finland, and the United Kingdom) and the United States. The article investigates whether a reliance requirement exists in the secondary market litigation regime in said jurisdictions and analyses whether a presumption of reliance exists to fulfil the reliance requirement. The article argues that most of the suggested solutions to resolve the reliance problem are not entirely satisfactory. An often-suggested presumption of reliance, while leavening the investors’ burden of proof, keeps the reliance requirement in place. This article submits that proof of individual investors’ reliance should not be required in secondary market inside information misstatement cases. Discarding the reliance requirement altogether makes any presumptions redundant as well.<jats:target target-type=\"next-page\">448</jats:target>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"20 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540214","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}
481This paper aims at contributing to the existing debate on online formation of companies. It will analyse the current system of full online formation which is available in the Republic of Serbia since 2018 and put it into European perspective. Even though many challenges were related to the full online registration in general, the Republic of Serbia introduced this procedure relatively easy, even though amending the traditional system of registration on several occasions. The last amendments introduced exclusive online formation of companies which is applicable since mid-May 2023. The most challenging issues in regard to full online registration were to accommodate existing system of preventive administrative and prevailingly formal dual control of formation procedure to be performed fully online. In that regard introduction and use of qualified electronic certificate provided high level of assurance in electronic identification, as one of cornerstones of online registration. Nevertheless, this system remained susceptible to negative effects and needs additional attention. It should be important that, beside efficiency, legal certainty and trust in business registers remain the most prominent features of formation of companies, not only in domestic, but above all in cross-border context.482
{"title":"Online Formation of Companies – Serbian Experience and Way Forward","authors":"Tatjana Jevremović Petrović","doi":"10.1515/ecfr-2023-0021","DOIUrl":"https://doi.org/10.1515/ecfr-2023-0021","url":null,"abstract":"<jats:target target-type=\"next-page\">481</jats:target>This paper aims at contributing to the existing debate on online formation of companies. It will analyse the current system of full online formation which is available in the Republic of Serbia since 2018 and put it into European perspective. Even though many challenges were related to the full online registration in general, the Republic of Serbia introduced this procedure relatively easy, even though amending the traditional system of registration on several occasions. The last amendments introduced exclusive online formation of companies which is applicable since mid-May 2023. The most challenging issues in regard to full online registration were to accommodate existing system of preventive administrative and prevailingly formal dual control of formation procedure to be performed fully online. In that regard introduction and use of qualified electronic certificate provided high level of assurance in electronic identification, as one of cornerstones of online registration. Nevertheless, this system remained susceptible to negative effects and needs additional attention. It should be important that, beside efficiency, legal certainty and trust in business registers remain the most prominent features of formation of companies, not only in domestic, but above all in cross-border context.<jats:target target-type=\"next-page\">482</jats:target>","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"126 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-11-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138540173","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}
Pub Date : 2023-10-23DOI: 10.4467/22996834flr.23.012.18596
Anna Drywa
The considerations concern a problem that is rarely raised on the basis of tax issues, namely the taxpayer's right to privacy. They are carried out in the context of one of the legal regulations which has a significant impact on the development of the protection of the privacy of the taxpayer. It should be noted that the changes to tax rules introduced in the last decade clearly indicate that the tax legislator shifts the boundaries of the taxpayer's inviolable privacy sphere. In the first part, an theoretical understanding of the notion of taxpayer's privacy will be considered. The considerations will serve as a starting point for the second part of the discussion, which focuses on the taxpayer’s right to privacy by exploring normative basis for protection of taxpayer’s privacy. The following third part addresses how specific tax rules affect the development of the protected and inviolable sphere of the privacy of a taxpayer. The study carried out leads inter alia to conclusion that the current status of the taxpayer's right to privacy seems questionable and not spotted enough, as the legislator invasions the private sphere of taxpayers using a number of tools to this end. The author therefore argues that the strengthening and updating the taxpayer's right to privacy protection is necessary.
{"title":"The Taxpayer’s Right to Privacy in Context of the Article 48 of the Polish Act on National Revenue Administration (KAS)","authors":"Anna Drywa","doi":"10.4467/22996834flr.23.012.18596","DOIUrl":"https://doi.org/10.4467/22996834flr.23.012.18596","url":null,"abstract":"The considerations concern a problem that is rarely raised on the basis of tax issues, namely the taxpayer's right to privacy. They are carried out in the context of one of the legal regulations which has a significant impact on the development of the protection of the privacy of the taxpayer. It should be noted that the changes to tax rules introduced in the last decade clearly indicate that the tax legislator shifts the boundaries of the taxpayer's inviolable privacy sphere. In the first part, an theoretical understanding of the notion of taxpayer's privacy will be considered. The considerations will serve as a starting point for the second part of the discussion, which focuses on the taxpayer’s right to privacy by exploring normative basis for protection of taxpayer’s privacy. The following third part addresses how specific tax rules affect the development of the protected and inviolable sphere of the privacy of a taxpayer. The study carried out leads inter alia to conclusion that the current status of the taxpayer's right to privacy seems questionable and not spotted enough, as the legislator invasions the private sphere of taxpayers using a number of tools to this end. The author therefore argues that the strengthening and updating the taxpayer's right to privacy protection is necessary.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"40 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135460375","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}
Pub Date : 2023-10-23DOI: 10.4467/22996834flr.23.013.18597
Mária Sabayová, Karolína Červená
In the paper, the authors focus on selected aspects (concept and interference) of the currently dynamically developing economic model called digital economy, with the aim of defining the content of the digital economy using the comparison, analysis, deduction and induction of existing definitions and characteristics of the concept of digital economy and the available data and information on the current state of the digital economy in the EU, as well as outlining the regulatory problems associated with it, with a vision of their possible solution.
{"title":"Challenges of Digital Economy","authors":"Mária Sabayová, Karolína Červená","doi":"10.4467/22996834flr.23.013.18597","DOIUrl":"https://doi.org/10.4467/22996834flr.23.013.18597","url":null,"abstract":"In the paper, the authors focus on selected aspects (concept and interference) of the currently dynamically developing economic model called digital economy, with the aim of defining the content of the digital economy using the comparison, analysis, deduction and induction of existing definitions and characteristics of the concept of digital economy and the available data and information on the current state of the digital economy in the EU, as well as outlining the regulatory problems associated with it, with a vision of their possible solution.","PeriodicalId":54052,"journal":{"name":"European Company and Financial Law Review","volume":"76 3-4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135460380","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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