Band 15, Heft 2

Controlling shareholders may cause a company to enter into transactions with themselves or one of their subsidiaries, thereby expropriating minority shareholders. General principles of company law, such as board autonomy, often do not adequately constrain controlling shareholders. Moreover, Belgian, French and Dutch courts apply deferential standards of review to related party transactions, while approval procedures in these jurisdictions are also flawed. A recent amendment to the Shareholder Rights Directive requires adequate protection of minority shareholders against self-dealing. Member States may subject related party transactions to a majority-of-minority vote, the approval of independent directors or judicial review. This paper discusses the efficiency of each of these mechanisms.

On 25 October 2017, the Court of Justice handed down a judgment in the Polbud case (C-106/16). This is the result of three preliminary questions raised by the Polish SC. The facts in the case concern the Polish private limited liability company which wanted to transfer its registered office to Luxembourg and to change its legal form. In general, the questions refer to two pertinent issues: first, if the national law providing for mandatory company’s liquidation in case of transferring the company’s seat abroad complies with the EU law, and second, if the so-called isolated cross-border conversion is covered by the freedom of establishment. With little doubt, the first question was answered in the negative. As to the second issue, the Court holds that it is not mandatory in the light of EU law for the company wishing to transfer its registered office and convert itself into a company governed by the law of another MS to establish an economic presence in that MS. It is likely that the Court of Justice’s findings will open another Pandora’s box with many unknown results, mainly concerning minority shareholders’ and creditors’ protection as well as further (un)desired liberalisation of the internal market.

Recent reports of the Commission and the European Parliament have revisited the concerns of protectionism in the EU. This article discusses these concerns in light of the liberal and protectionist divide in the EU market for corporate control, focusing on the board neutrality rule during takeovers. The arguments advanced in this article are threefold. First, that liberal markets are likely to encourage takeovers, but breed short-termism. Second, that protectionist markets are likely to discourage takeovers, but facilitate long-termism. Third, that short-termism in the UK and the so-called protectionism in Germany are the result of entrenched policy choices made in those jurisdictions in regard to the interests they protect in regulating the market for corporate control. The article draws a conclusion that it is hard for the UK and Germany to get the best of both worlds, that is, the liberal market and long-termism.

Credit rating agencies have assessed the creditworthiness of issuers and debt instruments for over a century. Nevertheless, in the United States and in the European Union a first regulation of rating services was passed only at the beginning of the twenty-first century, respectively in 2006 and 2009. Statutory liability rules were later adopted in the United States with the Dodd-Frank Act of 2010 and in the European Union with Regulation (EU) no 462/2013. Despite some similarities between the American and European existing discipline, significant differences still exist and pave the way for regulatory arbitrage opportunities in the ratings market. The reasons for divergence are clearly historically based and derive, in part, from the different traditions of the two legal systems. Accordingly, this article compares the evolution of the US regulatory framework and case law on the liability of rating organizations towards investors with the uniform rules adopted by the European Union since 2009, absent a comparable case law at the European level. It is argued that, in both systems, while it is easier to establish liability in case of intent, burden of proof rules generally place a significant, if not insurmountable, obstacle to damage compensation for investors.

In essence, insolvency law is collective debt collection law. By means of a collective procedure, insolvency law seeks to ensure that the going concern value is captured for the creditors. Where the shareholders possess the dominant voice outside of insolvency, in insolvency creditors take over this position and become the economic owners of the company. In three different settings shareholders can interfere with the insolvency process and try to capture all the value in the company or at least leave the creditors with the liquidation value and usurp the going concern surplus. These three settings are (i) shareholders as secured lenders, (ii) shareholders as acquirers out of pre-packs or other asset sales and (iii) shareholders under composition plans. The proposed EU Directive on Preventive Restructuring Frameworks and Second Chance (November 2016) contains measures in the field of composition plans as part of a preventive restructuring. The proposed directive addresses the potential problem that shareholders would usurp the going concern surplus by introducing the Absolute Priority Rule. The proposed directive should be considered a first step in the right direction. It should, however, be realized that the protection offered in the proposed directive could easily be circumvented by a shareholder financing not with capital but with secured shareholder loans. Also, if pre-pack sales or other sale processes do not limit interference by shareholders, shareholders will prefer the route of an asset sale above a restructuring.