The Structure of European Company Law: From Crisis to Boom

Abstract

The two constitutional principles of subsidiarity and integration in the European Union clearly force the system to be one of jurisdictional competition. The text books still do not start from the assumption that diversity, and the tools for making it compatible with integration, are just as important an element of European company law as harmonisation. This paper argues that they should. This would then lead them to discuss in which areas there should be such competition, to identify the conditions for functioning competition and to try to suggest where and how to enhance it. Diversity clearly requires information. Therefore, the second core element of the structure of European company law consists of disclosure rules. These rules are indeed clearly dominant in European company law, be it in accounting law, the law of capital markets or in traditional EU Company Law Directives. On this basis, other important features – pairs of concepts – can also be explained: (1) the fact that European company law focuses on limited liability companies and sometimes exclusively on PLCs; (2) the fact that European company law is so extroverted, that is to say, the regulation of the third-party relationship is so dominant, that shareholders' rights are really regulated only insofar as the proportionate share is ‘constitutionally’ guaranteed; and (3) the fact that capital markets must clearly be seen as an integral part of European company law and may not be disregarded in any description.