Abstract

The European Commission has published a discussion paper as a basis for the exchange of views between high-ranking representatives of Member States and the European Commission on future work with respect tothe European company law. The Commission has come to the conclusion that the company law is an essential tool in fostering the effectiveness and competitiveness of European undertakings, deepening of the internal market and establishment of a fully integrated market for capital. However, over the last few years, the company law proposals have had only a limited degree of success in the Council. The negotiations were marked by what seems to be a lack of mutual confidence of Member States concentrating vigorously onprotectiing their national legal traditions. In the past decades, the European legislator harmonised a number of areas, such as protection of interests of shareholders and others through disclosure, constitution and maintenance of the capital of public limited-liability companies, takeover bids, disclosure for subsidiaries, mergers and divisions, minimum rules for a_single-member private limited-liability company, shareholders’ rights, as well as related areas, such as financial reporting and accounting. Considerable work has also been accomplished with respect to different legal forms such as the European Company (SE), the European Economic Interest Grouping (EEIG) and the European Cooperative Society (SCE). The Commission has stressed that most of these measures had been adopted in a climate of greater confidence and consensus during the years 1968--1989,whereas in the 1990s there was no notable harmonisation. As for the new millennium, the degree of harmonisation has been much more limited and has been only aimed at facilitating the exercise of certain rights and performance of operations, such as takeover bids, cross-border mergers, shareholders’ rights and simplification measures. The Commission suggested organising the reflection process around three large building blocks: corporate mobility, long-term viability of companies and management/oversight structures, and groups of companies. There is also the big question of what instruments should be used in the future. The classical approach has shown its limits: most of the harmonisation effort has been so far done through directives, which require only qualified majority. But directives often contain considerable exemptions or references to national law, substantially limiting the harmonisation effect. One may wonder whethera greater progress could be achieved through enhanced cooperation. Compared to regulations and directives, recommendations are relatively easy to adopt. But by their very nature, they are not very effective, resulting in an even patchier rag rug. Therefore, the Commission is looking also for a_different approach. In this context, the initiative of a “European Model Company Act” (EMCA) could be taken into account. In a nutshell, the EMCA will be designed as a free-standing general corporate statute that can be enacted substantially by Member States in its entirety or partly. The main goal of this article is to discuss whether the EMCA may have a real chance to play a role of an effective tool for further harmonisation of the national company law, overcoming the problem of a lack of confidence, and be an alternative for the classic approach.