Volume 19, Issue 3

This article scrutinizes the new harmonized regime of creditor protection in cross-border mergers under Art. 126 b of Directive 2019/2121. The risks that creditors face at a cross-border merger revealed the need for harmonization. The previous regime based on old Art. 121(2) of Directive 2017/1132 together with old Art. 121(1)(b) of Directive 2017/1132 referred to national law with regard to the protection of creditors in cross-border mergers, which resulted in legal diversity at EU level. The new harmonized rules are analyzed. More specifically, this article examines creditor protection through the disclosure of the solvency declaration and the common draft terms of the cross-border merger and creditor protection through the possibility of dissatisfied creditors to apply for adequate safeguards. The argument that other national law mechanisms of general company law or civil law are available in parallel with the special harmonized provisions on protection of creditors of Art. 126 b could be underpinned by the application by analogy of the findings of the CJEU in I.G.I. Srl. Various other aspects of creditor protection are examined, such as the notion of creditor and the rebuttable presumption of Art. 126b(3) of the Proposed Directive. Additionally, a few proposals to Member States for the implementation of the new provisions of creditor protection in cross-border mergers are discussed. Some future perspectives on the possibility of full harmonization in this area and a few concluding remarks are inferred.

Transactions conducted between a SA and its related parties are at the forefront of domestic and foreign theory. The vast interest in this issue is justified by a series of scandals in the international financial system, which demonstrate in the best possible way that the law of dealing with related parties is not only law in the books, but also law in practice. This study aims to provide a legal analysis of related party transactions using Greek law as an example. It first highlights the risks arising from these transactions and then the mechanisms designed to deal therewith. Furthermore, it describes the incorporation of the EU rules into the Greek legal system and then it attempts to answer several key issues arising from the implementation of the provisions on RTPs. This paper concludes with an overall assessment of the application of the new institutional framework with regard to transactions of a SA with its related parties.

Greek Company Law has its origins in the French “Code de Commerce” of 1807, which, although never legislated in Greece, applied as a Greek law to the business transactions even before the Greek Independence (1830). The German influence took over progressively early in the 20 th century. Such influence is visible in the important Law on SAs (1920), the chapter of the Greek Civil Code on the contract of society (1946) and more recently in Law 4072 / 2012 on commercial partnerships. The list of business associations available in Greece includes the usual business forms (general and limited partnerships, silent partnership, and capital companies) provided in continental Europe. Recent legislative developments include a new law on SAs (2018) and a new company form, the Private Company (2012), which is mostly used by small and medium entreprises. The Greek Sarl is fading out. The introduction of a new entity has been envisaged (but not yet adopted), imitating the “individual enterprise with limited liability” of French law.

Efficient capital markets improve the financing options for corporations and enhance the efficiency of the real economy. A single market for capital for European Member States boosts these macroeconomic benefits. This is the basic idea of the Capital Markets Union (CMU). With the Targeted Consultation on the Listing Act, the European Commission aims to further develop the CMU and strengthen European capital markets. The Consultation focuses, among other things, on the attractiveness of European capital markets (especially for SMEs), the efficient design of disclosure on the primary and secondary markets, and enforcement. We welcome the European Commission’s initiative and consider it useful to capture the prevailing opinion of market participants on European capital markets law being in need of reform. However, more courageous, and balanced steps are needed to further develop the CMU in an effective and meaningful way. The European legislator can do more to overcome fragmentation of Member States’ capital markets (e. g. establishing a ‘Single European Market’ as an optional ‘28th regime’). Furthermore, we consider how the regulation of European capital markets law can help to facilitate capital market-based financing in the European Union. To that end, we address key regulatory issues of primary markets law as well as the regulation of insider trading and ad hoc disclosure. Finally, the Consultation is an opportunity to discuss the issue of capital markets law enforcement from a holistic perspective. The time is ripe for a European discussion on a coherent and efficient enforcement concept.