Legal Capital in Europe

Europe has known very different systems of company laws for a long time. These differences do not only pertain to the board structures of public companies, where single-tier and two-tier structures can be distinguished, they also pertain to the principles of fixed legal capital. Fixed legal capital is not a traditional ingredient of English and Irish company law and had to be incorpo-rated into these legal systems (only) for public limited companies according to the Second European Company Law Directive of 1976. Both jurisdictions have never really embraced these rules. Against this background, the British Accounting Standards Board (ASB) and the Company Law Centre at the British Institute of International and Comparative Law (BIICL) have initiated and supported a study of the benefits of this legal system by a group of experts led by Jonathan Rickford. The report of this group has been published in 2004. Its result was that legal capital was costly and superfluous; hence, the Second Directive should be repealed. The British government has adopted this view and wants the European Commission to act accordingly.

Against this background a group of German and European company law experts, academics as well as practitioners, have come together to scrutinise sense and benefits of fixed legal capital and all its specific elements guided by the following questions:

What is the relevant legal concept supposed to achieve?
What does it achieve in reality?
What criticisms are there?
Which proposals or alternatives are available?

From the outset the group of experts has endeavoured to cooperate with foreign colleagues, which resulted in very fruitful and pleasant exchanges.

This volume contains, besides an executive summary of the results, 16 essays on specific aspects of legal capital in Germany covering also neighbouring fields of law (e.g. accounting, insolvency); 7 reports on fixed legal capital in other jurisdictions (France, Great Britain, Italy, the Netherlands, Poland, Spain and the U.S.A.) addressing the same questions as the essays on German law.

The British initiative disapproves of the Second Directive. The Directive does only deal with public limited companies in Europe, which is reflected in the analysis presented here. It is only concerned with the fixed legal capital of public limited companies, not with capital issues of private companies.

The study has arrived at a result that differs completely from that of the Rickford group. It verifies the usefulness of the concept of fixed legal capital and wishes to convince the European Commission of the benefits of the Second Company Law Directive.

Autorentext

Marcus Lutter, Zentrum für Europäisches Wirtschaftsrecht der Universität Bonn

Inhalt

Marcus Lutter: Legal capital of public companies in Europe - Executive summary of considerations by the expert group on "Legal Capital in Europe".

Part 1: Elements of Creditor Protection

Horst Eidenmüller/Barbara Grunewald/Ulrich Noack: Minimum Capital in the System of Legal Capital; Andreas Pentz/Hans-Joachim Priester/André Schwanna: Raising Cash and Contributions in Kind when forming a Company and for Capital Increases; Rüdiger Veil: Capital Maintenance - The regime of the Capital Directive versus Alternative Systems; Holger Fleischer: Disguised Distributions and Capital Maintenance in European Company Law; Susanne Kalss/Nikolaus Adensamer/Janine Oelkers: Director's Duties in the Vicinity of Insolvency - A comparative analysis with reports from Germany, Austria, Belgium, Denmark, England, Finland, France, Italy, the Netherlands, Norway, Spain and Sweden; Karsten Schmidt: Grounds for Insolvency and Liability for Delays in Filing for Insolvency Proceedings - Necessary Supplement to Capital Protection; Hanno Merkt/Gerald Spindler: Direct Liability of Controlling Parties (Piercing the Corporate Veil) and Related Legal Constellations; Tim Drygala: Directors Liability in the Member States of the European Union; Heribert Hirte/Tim Lanzius/Sebastian Mock: Director's disqualification and creditor protection; Jens Ekkenga/Walter Bayer: Fixed capital within the stock corporation law and its implication for minority and investor protection; Ulrich Huber/Mathias Habersack: Special Rules for Shareholder Loans (Part I): Which Consequences Would Arise For Shareholder Loans if the System of Legal Capital Should be Abolished? Christoph G. Paulus: Claw-back Rules and Creditors' Protection; Christoph Kuhner: The Future of Creditor Protection through Capital Maintenance Rules in European Company Law; Bernhard Pellens/Thorsten Sellhorn: Improving Creditor Protection through IFRS Reporting and Solvency Tests; Peter Mankowski: Does contract suffice to protect the creditors of a company and their interests?

Part 2: Single Country Reports

Great Britain *Eva Micheler: England; Thomas Bachner: Creditor protection through insolvency law in England; *France *Isabelle Urbain-Parleani: Working Group on the Share Capital in Europe - French Answers to the Questionnaire; Italy*Massimo Miola: Legal Capital Rules in Italian Company Law and the EU Perspectives; Netherlands Harm-Jan de Kluiver/Stephan F. G. Rammeloo: Capital and Capital Protection in The Netherlands: A Doctrine in Flux; Spain*José Miguel Embid Irujo: Capital Protection in Spanish Company Law; *Poland Andrzej Kidyba/Stanislaw Soltysinski/Andrzej Szumánski: A Report on Selected Aspects of Legal Capital under Polish Code of Commercial Companies; USA Richard A. Booth: Capital Requirements in United States Corporation Law; Andreas Engert: Life Without Legal Capital: Lessons from American Law.

Index