Legal Capital in Europe

Legal Capital in Europe

In: European Company And Financial Law Review - Special Volume, 1

Edited by: Marcus Lutter

De Gruyter | 2006

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 Its result was that legal capital was costly and superfluous; hence, the Second Directive should be repealed.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

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

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

Legal Capital in Europe

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