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– 7 – Preface The harmonisation of company law has been constantly on the agenda of the European Union. With a view to protecting the interests of third parties and of participants in legal persons, Article 44(2)(g) of the Treaty of Rome prescribed the coordination of the guarantees required from such legal persons. Although third party and shareholder protection was certainly the main rationale underlying the Company Law Directives in the sixties, seventies and eighties of the last century, the Berkhouwer Report (1966) revealed two other objectives the founding fathers had in mind while conceiving the idea of company law harmonisation: first, promoting freedom of establishment and second, preventing the abuse of such freedom. In fact, it was most of all the latter, i.e. the fear of the Netherlands becoming the Delaware of Europe, that inspired Article 44(2)(g). At that time the Netherlands was the only one of the six original Member States where the real seat theory had, shortly after World War II, been replaced by the more Anglo-Saxon incorporation doctrine. Ironically, at the beginning of the 21st Century, it was the privilege of the Danish and the Dutch States, both “incorporation” countries, to fail in successfully making the abuse argument before the European Court of Justice: in the famous Centros (1999) and Inspire Art (2003) cases, the legislation these states had designed to protect their (third party) citizens against companies which were first artificially incorporated in other countries before really being established in theirs was held to be contrary to the freedom of establishment. The Court was apparently at ease with its reasoning since comparative law research had shown that the US model of state competition was more fruitful than harmful: Delaware was not so much the bottom state, but on the contrary one of the states with the most highly developed corporate law, and moreover with very experienced company law judges. Since then, the European Commission seemed convinced that the Court itself needed no further guidelines for shaping its policy on the freedom of establishment of companies. Therefore the Commission felt ready to refocus its company law strategy. The Commission instructed the Winter Group to prepare a comprehensive report on the subject, and on the basis of that report wrote its Company Law Action Plan which was issued on 21 May 2003. Reading the Plan, one cannot help having the impression that, from now on, European company law policy will focus on listed companies and will try to enhance their efficiency by way of state competition if possible, and by harmonisation only if need be. Even more than on substance – such as the “one share one vote” principle – the plan insists on methods to be used, both by the EU and the companies themselves: in the aftermath of the Lamfalussy process, the use of secondary legislation is strongly recommended, e.g. in the field of corporate governance; moreover, companies should be forced to focus – 8 – on disclosure and new technologies in building up their relationship with the market and the shareholders. Immediately after the launching of the Plan, at the beginning of 2004, the IFRS rules became everyday practice. The “one share one vote” principle was given a lot of praise and attention, but after thorough study did not, for the time being, survive the impact assessment phase (December 2007). With regard to non-listed companies, freedom of establishment should, according to the Plan, be additionally furthered by new types of European companies: after the Societas Europaea (Regulation 2001/2157) came the Societas Cooperativa Europaea (Regulation 2003/1435). Europe is still awaiting the light vehicle, the European Private Company. Other freedom of establishment priorities which were put forward in the Plan have meanwhile been realised, such as the Cross Border Merger Directive (2005/56) and Directive 2006/68 which modified the Capital Directive (1977/91). On the other hand, the Draft Directive on transfer of the registered office did not make it through the impact assessment at the end of 2007. Six years have passed since the Company Law Action Plan was launched. Thus the appropriate time has come to revisit it, in the light of the most recent developments (including the Cartesio decision of the European Court of Justice of 16 December 2008). Such is precisely the purpose of this book. Five papers on the main topics of company law reform were prepared by the Jan Ronse Institute of KULeuven for a conference held on 9 January 2009, and it had the...

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