Legal Capital in Europe

Published by De Gruyter 2006

Legal Capital in Europe

Edited by: Marcus Lutter

Volume 1 in the series European Company And Financial Law Review - Special Volume

https://doi.org/10.1515/9783110926583

Overview
Contents

About this book

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 Its result was that legal capital was costly and superfluous; hence, the Second Directive should be repealed.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.

Author / Editor information

Marcus Lutter, Center for European Economic Law, University of Bonn

Topics

i-iv Requires Authentication Unlicensed Licensed Download PDF	i
Preface Marcus Lutter Requires Authentication Unlicensed Licensed Download PDF	v
Table of Contents Requires Authentication Unlicensed Licensed Download PDF	vii
List of Contributors Requires Authentication Unlicensed Licensed Download PDF	ix
Legal capital of public companies in Europe – Executive summary of considerations by the expert group on “Legal Capital in Europe” Marcus Lutter Requires Authentication Unlicensed Licensed Download PDF	1
Part 1: Elements of Creditor Protection
Minimum Capital in the System of Legal Capital Horst Eidenmüller, Barbara Grunewald and Ulrich Noack Requires Authentication Unlicensed Licensed Download PDF	17
Raising Cash and Contributions in Kind when forming a Company and for Capital Increases Andreas Pentz, Hans-Joachim Priester and André Schwanna Requires Authentication Unlicensed Licensed Download PDF	42
Capital Maintenance – The regime of the Capital Directive versus Alternative Systems Rüdiger Veil Requires Authentication Unlicensed Licensed Download PDF	75
Disguised Distributions and Capital Maintenance in European Company Law Holger Fleischer Requires Authentication Unlicensed Licensed Download PDF	94
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 Susanne Kalss, Nikolaus Adensamer and Janine Oelkers Requires Authentication Unlicensed Licensed Download PDF	112
Grounds for Insolvency and Liability for Delays in Filing for Insolvency Proceedings – Necessary Supplement to Capital Protection Karsten Schmidt Requires Authentication Unlicensed Licensed Download PDF	144
Direct Liability of Controlling Parties (Piercing the Corporate Veil) and Related Legal Constellations Hanno Merkt and Gerald Spindler Requires Authentication Unlicensed Licensed Download PDF	166
Directors Liability in the Member States of the European Union Tim Drygala Requires Authentication Unlicensed Licensed Download PDF	232
Directors’ disqualification and creditor protection Heribert Hirte, Tim Lanzius and Sebastian Mock Requires Authentication Unlicensed Licensed Download PDF	254
Fixed Capital under German Stock Corporation Law and its Significance for the Protection of Investors and Minority Shareholders Jens Ekkenga and Walter Bayer Requires Authentication Unlicensed Licensed Download PDF	280
Special Rules for Shareholder Loans: Which Consequences Would Arise for Shareholder Loans if the System of Legal Capital Should be Abolished? Ulrich Huber and Mathias Habersack Requires Authentication Unlicensed Licensed Download PDF	308
Claw-back Rules and Creditors’ Protection Christoph G. Paulus Requires Authentication Unlicensed Licensed Download PDF	325
The Future of Creditor Protection through Capital Maintenance Rules in European Company Law – An Economic Perspective Christoph Kuhner Requires Authentication Unlicensed Licensed Download PDF	341
Improving Creditor Protection through IFRS Reporting and Solvency Tests Bernhard Pellens and Thorsten Sellhorn Requires Authentication Unlicensed Licensed Download PDF	365
Does contract suffice to protect the creditors of a company and their interests? Peter Mankowski Requires Authentication Unlicensed Licensed Download PDF	394
Part 2: Single Country Reports
England Eva Micheler Requires Authentication Unlicensed Licensed Download PDF	413
Creditor protection through insolvency law in England Thomas Bachner Requires Authentication Unlicensed Licensed Download PDF	427
France. Working Group on the Share Capital in Europe – French Answers to the Questionnaire Isabelle Urbain-Parléani Requires Authentication Unlicensed Licensed Download PDF	480
Italy. Legal Capital Rules in Italian Company Law and the EU Perspective Massimo Miola Requires Authentication Unlicensed Licensed Download PDF	515
Netherlands. Capital and Capital Protection in The Netherlands: A Doctrine in Flux Harm-Jan de Kluiver and Stephan F. G. Rammeloo Requires Authentication Unlicensed Licensed Download PDF	558
Spain. Capital Protection in Spanish Company Law José Miguel Embid Irujo Requires Authentication Unlicensed Licensed Download PDF	582
Poland. A Report on Selected Aspects of Legal Capital under Polish Code of Commercial Companies Andrzej Kidyba, StanisŁaw SoŁtysiński and Andrzej Szumański Requires Authentication Unlicensed Licensed Download PDF	597
USA. Capital Requirements in United States Corporation Law Richard A. Booth Requires Authentication Unlicensed Licensed Download PDF	620
Life Without Legal Capital: Lessons from American Law Andreas Engert Requires Authentication Unlicensed Licensed Download PDF	646
Index Requires Authentication Unlicensed Licensed Download PDF	695

(Deutsch)

Language: English
Publisher: De Gruyter
Audience: Lawyers, Notaries, Certified Public Accountants, Trade Organizations, Legal Departments of Companies, Joint-Stock Companies, Ministries (Legal Departments), EC-Committees, Banks, Scholars, Academic Departments, Libraries
Pages
- Front matter: 10
- Main content: 701
Keywords: Legal capital

eBook

Published: December 22, 2011
ISBN: 9783110926583

Hardcover

Published: November 16, 2006
ISBN: 9783899493399