Volume 19, Issue 1

Jurisdictions around the world have developed different mechanisms to balance the need to enforce corporate law with the problem of non-meritorious litigation when derivative suits can be brought bring easily. One instrument to channel shareholder litigation is preliminary procedures, which typically constitute a screening stage before fact-finding. These have been adopted in several jurisdictions in recent years. This article argues that in jurisdictions applying the “loser pays” rule, preliminary procedures can serve as cutoff points for potential plaintiffs’ litigation cost risk, which often blunts incentives to litigate. To make preliminary procedures an effective instrument this article proposes two elements of institutional design. First, the risk of paying litigation costs should initially be limited to the preliminary procedure. Second, at the preliminary stage, shareholders should not be required to provide evidence about the merits of the suit or whether the company would benefit from it. Instead, as in the US, the emphasis of the preliminary stage should be on conflicts of interest of directors that make it unlikely that they bring such a suit themselves. Such a system would permit courts to screen our abusive lawsuits at an early stage while at the same time reducing incentive problems that have long plagued shareholder litigation.

In the current EU legislative framework for investment funds – UCITS Directive and AIFMD – credit funds have rightly been singled out as something quite unique. In fact, they stand at the crossroads of capital markets’ and credit institutions’ regulations, playing a role of both an investor in a particular asset class, and of a credit facility provider. They may also effectively perform other functions, such as those of securitization vehicles, or comparable to Asset Management Companies (“AMCs”) for the management and processing of non-performing loans. They are, therefore, hybrid creatures, difficult to regulate and, sometimes, to understand. This is due not only to the absence of any specific product regulation in the context of the AIFMD, but also to the uncertainties surrounding the notion of “credit” and “credit granting” in EU law. Within the EU, legislation on credit funds developed, until now, in a haphazard manner. Absent a clear reference scheme, the result is unsatisfactory, and far from being able to integrate EU Markets in this respect. Further, more robust harmonization is therefore needed in this area, now more than ever in the context of the debate on the effects of the pandemic and the management of NPLs. The paper aims to provide sufficient evidence to support these assumptions, also taking into account the lively debate on the role of Asset Management Companies and the development of an efficient secondary market for loans in the EU.

The overall study provides a comprehensive analysis of the enforcement of fines and other pecuniary obligations imposed by the ECB within the Eurosystem and Single Supervisory Mechanism (SSM) and it highlights how the mismatch between European and national law inherent in Art. 299 TFEU could be resolved. While the focus in Part I was on the European law requirements with regard to the enforcement of pecuniary obligations imposed by the ECB, Part II focuses on the Member State’s (MS) perspective and is based on a comparative analysis of the respective data collected in 2020 via a questionnaire survey in 21 MSs. This data will serve not only to have a closer look if and how the European law requirements are implemented but also to analyse how effective the different legal systems are and to identify gaps in legal protection in practice. The results of the analysis of the realisation at national level are not only relevant for the enforcement of obligations imposed by the ECB, but rather also for the enforcement of legal acts of the Council and the EC However, not the EP, see ECJ, 6 July 2017, C-189/17 P(R), Gollnisch v Parliament , ECLI:EU:C:2017:528, para. 46; Matthias Ruffert , in: Christian Callies/Matthias Ruffert (eds.), EUV/AEUV, Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta, 5th edn., 2016, Art. 299 TFEU 1; differing Maria Geismann , in: Hans von der Groeben/Jürgen Schwarze/Armin Hatje (eds.), Europäisches Unionsrecht, 7th edn., 2015, Art. 299 TFEU 2; Martin Gellermann , in: Rudolf Streinz (ed.), EUV/AEUV, Vertrag über die Europäische Union, Vertrag über die Arbeitsweise der Europäischen Union, Charta der Grundrechte der Europäischen Union, 3rd edn., 2018, Art. 299 TFEU 4. In my opinion, it should be indicated of which of the commented instruments Art. 299 is meant. Obviously it can only be the TFEU, but for clarity it should be indicated. as well as judgments of the CJEU (Art. 280 TFEU) as they generally follow the same rules under national law.

The world is currently facing a COVID-19 pandemic which exerts a considerable impact on all areas of society. The need to avoid personal contact with other people gives rise to major problems in personal life, education, labor market, services and many others. The public had to rapidly adjust to the new situation and national legislators have played a pivotal role by making amendments to national legal orders to facilitate everyday life. The difficulties affected the functioning of companies’ organs, in particular, the adoption of resolutions by shareholders’ meetings. Due to the obstacles in the functioning of these bodies, the legislators were forced to make amendments to company law that allow for the adoption of resolutions and the exercise of shareholders’ rights without the physical attendance at the meeting. The aim of this paper is to carry out a brief comparative analysis of the regulations concerning the use of electronic communication means at shareholders’ meetings in Poland and in some selected European legal orders and formulate de lege ferenda postulates for the legislators to introduce flexible instruments that will allow companies to operate using electronic means on a larger scale and simultaneously protect shareholders’ rights.

The Digital Finance/Fintech Action Plan and the Sustainable Finance Strategy both represent important pillars of the current EU policy agenda. Nonetheless, the two areas have been treated as separate for a long time, while they present certain common features and great potential when combined. In particular, Fintech appears able to respond to some shortcomings in the current sustainable finance framework (e. g. access to retail financing, ESG disclosure, verification and ratings, etc.). The relevance of the link between sustainability, finance and technology has also been evidenced by the COVID-19 pandemic crisis, which has urged all countries to re-think the models traditionally deployed and rely more on technology and sustainability. However, Fintech/digital finance still raises per se relevant technical and legal issues that need to be addressed to fulfil its promises and potential in the sustainable finance sector. The present paper aims at starting a debate about “Green Fintech” in order to effectively connect the two worlds and spur the research in such a new and promising area. Special attention will be also reserved to the recent proposal for a European Single Access Point for corporate financial and non-financial disclosure.