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Legal Periodicals: A Selection (May 2013 – June 2013)

Legal Periodicals: A Selection (May 2013 – June 2013) COLUMNS BY STEPHAN RAMMELOO, ASSOCIATE PROFESSOR IN COMPANY LAW AT MAASTRICHT UNIVERSITY, THE NETHERLANDS AND TOM DIJKHUIZEN, LL.M M.PHIL, PHD-FELLOW IN COMPANY LAW AT LEIDEN UNIVERSITY, THE NETHERLANDS 1. C.H. SEIBT, EUROPÄISCHE FINANZMARKTREGULIERUNG ZU INSIDERRECHT UND AD HOC-PUBLIZITÄT, ZHR 177 (2013), P. 389­426 either `value investors' or `trading investors' interests. A third model (Model C) distinguishes between crucial (`Kern') inside information, non-crucial `light insider' information and other `company related' information. Subsequently, an analysis of the EU law framework is followed by a comparative law analysis (Germany, UK, France, Italy and Austria). The final part is devoted to the draft Regulation and Directive on Market Abuse, including the amendments proposed by the EP and Council. The author inter alia concludes with the view that Model A is apt to meet the objectives underlying the proposed law reform and ends with an in depth treatment of (criminal and other) sanctions. shareholder identification, better shareholder oversight of remuneration policies and improving corporate governance reporting. The discussion of the content of the Action Plan is followed up by an elaboration on the current state of affairs of European company law and the central role of the European Court of Justice. The difficulty is that the European Court of Justice with its decisions based on the freedoms of the Treaty is not by itself in a position to create European company law. The consequence of that is that secondary law is needed. In the fourth paragraph the author deals with the two main aims of European company law, namely free mobility of enterprises and shareholder protection. In order to attain those aims, The European Commission plans both The approaching EU Law reform in the field of Insider Dealing gave rise to this contribution, as currently the draft Regulation of the Commission 20 October 2011 on Market Abuse and the newly elaborated Directive on criminal sanctions are debated in the European Parliament and the European Council. The law reform was inspired by the `Driving European Recovery' as initiated pursuant to the financial crisis by the Commission in the year 2009. The author in particular focuses on the legal `matrix' of the ad hoc disclosure duty on one hand (information transparency) and the requirement to abstain from insider dealing of secret information on the other. Ad hoc disclosure of relevant information fosters `market price integrity' of financial instruments (`Efficient Capital Market Hypothesis': public access to relevant information leads to reliable stock exchange ratings). Ad hoc disclosure further enables investors to appreciate opportunities and risks in an early stage. Any inadequacy as regards (non-)disclosed may even lead to disproportionate investments and desinvestments. Subsequently, potential ways to regulate ad hoc publicity are depicted. On the basis of two `models', Model A and Model B both related to: (i) ad hoc disclosure of inside information with, however, dispensation option, and other `company related' but not `insider' information the emphasis is placed on 2. K.J. HOPT, `EUROPÄISCHES GESELLSCHAFTSRECHT IM LICHTE DES AKTIONSPLANS DER EUROPÄISCHEN KOMMISSION VOM DEZEMBER 2012', ZGR (2013), 165­215 more transparency and partial harmonization and will therefore prepare the codification of major company law directives. It is the author's vision that transparency as a regulatory method will promote party autonomy and will support the market mechanisms, whilst harmonization must be limited to core areas of company law and even there national and European company law must complement each other. In the last section, the author discusses the key areas in the light of the Action Plan, namely: (i) European company forms, (ii) cross-border mergers, transfer of seat and division of companies, (iii) company finances, (iv) corporate governance, (v) shareholders, in particular institutional shareholders, (vi) controlling This treatise is based and built on a lecture in remembrance of Max Hachenburg held on the 26 October last year. The author states that European company law will see a revival after the European Commission has presented a new Action Plan that contains both company law and corporate governance rules. After an elaboration on the first European Action Plan of 2003 and the development since then, the author discusses the second Action Plan of December 2012 that lists sixteen main initiatives regarding, inter alia, `Columns'. European Company Law 10, no. 4/5 (2013): 171­172. © 2013 Kluwer Law International BV, The Netherlands COLUMNS shareholders and company groups and (vii) other stakeholders, in particular with regard to employee share ownership. The author concludes the article by stating that the proposals of the Commission in this Action Plan as well as the omissions and lacunae need a careful policy and comparative law discussion. but it is nowadays strongly influenced by English company and capital markets law. After an elaboration on the development of European company law, the author deals with the relationship between the German Supreme Court and the European Court of Justice. In his opinion, the German Supreme Court was initially rather open as regards company law references to the European Court of Justice, but the subsequent development their position in fundamental questions such as the so-called Existenzvernichtungshaftung. A last important feature of German company law that prohibits a leading German influence is employee co-determination at board level. In the opinion of the author, Germany has manoeuvred herself almost into an off-side position in the European legislative process as legal advisors in many cases avoid German law because of this aforementioned codetermination but also because it is considered to be too strict on protection of creditors and minorities. In the end the author comes to the conclusion that more awareness is needed for the future that German company law is in competition with the company laws of other countries and that, therefore, it is necessary also for legal political reasons to study the company law developments in other countries. The author concludes with an appeal on German company law for more openness and engagement towards Europe. 3. H-J. HELLWIG, `DAS DEUTSCHE GESELLSCHAFTSRECHT UND EUROPA: EIN APPELL ZU MEHR OFFENHEIT UND ENGAGEMENT', ZGR (2013), 216­236 is characterized by references denied or incorrect or not at the earliest possible date. Another interesting features are the views of German courts on the freedom of establishment and on the so-called Existenzvernichtungshaftung, which the author translates in the liability for destroying the economic basis of a company. The author states that German courts at the beginning had difficulties to accept the freedom of establishment under European company law and that German company law cannot have a leading influence on the development in Europe as the courts frequently change This treatise is also based and built on a lecture in remembrance of Max Hachenburg held on the 26 October last year. The lecture is especially about the development of European company law and the domestic influences upon that European company law. The author states in the first two paragraphs that at the beginning of European integration Germany had a significant impact on the development of European company law OCTOBER 2013, VOLUME 10, ISSUE 4/5 EUROPEAN COMPANY LAW http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Company Law Kluwer Law International

Legal Periodicals: A Selection (May 2013 – June 2013)

European Company Law , Volume 10 (5) – Aug 1, 2013

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Abstract

COLUMNS BY STEPHAN RAMMELOO, ASSOCIATE PROFESSOR IN COMPANY LAW AT MAASTRICHT UNIVERSITY, THE NETHERLANDS AND TOM DIJKHUIZEN, LL.M M.PHIL, PHD-FELLOW IN COMPANY LAW AT LEIDEN UNIVERSITY, THE NETHERLANDS 1. C.H. SEIBT, EUROPÄISCHE FINANZMARKTREGULIERUNG ZU INSIDERRECHT UND AD HOC-PUBLIZITÄT, ZHR 177 (2013), P. 389­426 either `value investors' or `trading investors' interests. A third model (Model C) distinguishes between crucial (`Kern') inside information, non-crucial `light insider' information and other `company related' information. Subsequently, an analysis of the EU law framework is followed by a comparative law analysis (Germany, UK, France, Italy and Austria). The final part is devoted to the draft Regulation and Directive on Market Abuse, including the amendments proposed by the EP and Council. The author inter alia concludes with the view that Model A is apt to meet the objectives underlying the proposed law reform and ends with an in depth treatment of (criminal and other) sanctions. shareholder identification, better shareholder oversight of remuneration policies and improving corporate governance reporting. The discussion of the content of the Action Plan is followed up by an elaboration on the current state of affairs of European company law and the central role of the European Court of Justice. The difficulty is that the European Court of Justice with its decisions based on the freedoms of the Treaty is not by itself in a position to create European company law. The consequence of that is that secondary law is needed. In the fourth paragraph the author deals with the two main aims of European company law, namely free mobility of enterprises and shareholder protection. In order to attain those aims, The European Commission plans both The approaching EU Law reform in the field of Insider Dealing gave rise to this contribution, as currently the draft Regulation of the Commission 20 October 2011 on Market Abuse and the newly elaborated Directive on criminal sanctions are debated in the European Parliament and the European Council. The law reform was inspired by the `Driving European Recovery' as initiated pursuant to the financial crisis by the Commission in the year 2009. The author in particular focuses on the legal `matrix' of the ad hoc disclosure duty on one hand (information transparency) and the requirement to abstain from insider dealing of secret information on the other. Ad hoc disclosure of relevant information fosters `market price integrity' of financial instruments (`Efficient Capital Market Hypothesis': public access to relevant information leads to reliable stock exchange ratings). Ad hoc disclosure further enables investors to appreciate opportunities and risks in an early stage. Any inadequacy as regards (non-)disclosed may even lead to disproportionate investments and desinvestments. Subsequently, potential ways to regulate ad hoc publicity are depicted. On the basis of two `models', Model A and Model B both related to: (i) ad hoc disclosure of inside information with, however, dispensation option, and other `company related' but not `insider' information the emphasis is placed on 2. K.J. HOPT, `EUROPÄISCHES GESELLSCHAFTSRECHT IM LICHTE DES AKTIONSPLANS DER EUROPÄISCHEN KOMMISSION VOM DEZEMBER 2012', ZGR (2013), 165­215 more transparency and partial harmonization and will therefore prepare the codification of major company law directives. It is the author's vision that transparency as a regulatory method will promote party autonomy and will support the market mechanisms, whilst harmonization must be limited to core areas of company law and even there national and European company law must complement each other. In the last section, the author discusses the key areas in the light of the Action Plan, namely: (i) European company forms, (ii) cross-border mergers, transfer of seat and division of companies, (iii) company finances, (iv) corporate governance, (v) shareholders, in particular institutional shareholders, (vi) controlling This treatise is based and built on a lecture in remembrance of Max Hachenburg held on the 26 October last year. The author states that European company law will see a revival after the European Commission has presented a new Action Plan that contains both company law and corporate governance rules. After an elaboration on the first European Action Plan of 2003 and the development since then, the author discusses the second Action Plan of December 2012 that lists sixteen main initiatives regarding, inter alia, `Columns'. European Company Law 10, no. 4/5 (2013): 171­172. © 2013 Kluwer Law International BV, The Netherlands COLUMNS shareholders and company groups and (vii) other stakeholders, in particular with regard to employee share ownership. The author concludes the article by stating that the proposals of the Commission in this Action Plan as well as the omissions and lacunae need a careful policy and comparative law discussion. but it is nowadays strongly influenced by English company and capital markets law. After an elaboration on the development of European company law, the author deals with the relationship between the German Supreme Court and the European Court of Justice. In his opinion, the German Supreme Court was initially rather open as regards company law references to the European Court of Justice, but the subsequent development their position in fundamental questions such as the so-called Existenzvernichtungshaftung. A last important feature of German company law that prohibits a leading German influence is employee co-determination at board level. In the opinion of the author, Germany has manoeuvred herself almost into an off-side position in the European legislative process as legal advisors in many cases avoid German law because of this aforementioned codetermination but also because it is considered to be too strict on protection of creditors and minorities. In the end the author comes to the conclusion that more awareness is needed for the future that German company law is in competition with the company laws of other countries and that, therefore, it is necessary also for legal political reasons to study the company law developments in other countries. The author concludes with an appeal on German company law for more openness and engagement towards Europe. 3. H-J. HELLWIG, `DAS DEUTSCHE GESELLSCHAFTSRECHT UND EUROPA: EIN APPELL ZU MEHR OFFENHEIT UND ENGAGEMENT', ZGR (2013), 216­236 is characterized by references denied or incorrect or not at the earliest possible date. Another interesting features are the views of German courts on the freedom of establishment and on the so-called Existenzvernichtungshaftung, which the author translates in the liability for destroying the economic basis of a company. The author states that German courts at the beginning had difficulties to accept the freedom of establishment under European company law and that German company law cannot have a leading influence on the development in Europe as the courts frequently change This treatise is also based and built on a lecture in remembrance of Max Hachenburg held on the 26 October last year. The lecture is especially about the development of European company law and the domestic influences upon that European company law. The author states in the first two paragraphs that at the beginning of European integration Germany had a significant impact on the development of European company law OCTOBER 2013, VOLUME 10, ISSUE 4/5 EUROPEAN COMPANY LAW

Journal

European Company LawKluwer Law International

Published: Aug 1, 2013

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