Transfer of Company’s Registered Office and Forum-Shopping in International Insolvency Cases: an Important Decision from Italy

The Italian Supreme Court (Corte di Cassazione) has issued an important decision on companies’ freedom of establishment in the European Union (EU) and on jurisdiction over insolvency proceedings. It was a typical forum-shopping case in insolvency situations, in which a company decides to shift its registered office abroad before a court from its original country declares the insolvency. The Cassazione did not apply EC-Regulation 1346/2000 on cross-border insolvency, but declared the company as liquidated because of the transfer of the registered office. This solution leaves many questions unclear, both under EC-freedom of establishment and under jurisdiction rules for cross-border insolvenc

White knights and black knights. Does the search for competitive bids always benefit the shareholders of “target” companies?

According to the EC Directive on Takeover Bids, defensive measures should be authorised by the general meeting of the target company. The incumbent board can, nonetheless, search for a competing bid, a so-called “white knight”. The rationale underpinning this exception is that competing bids always benefit target’s shareholders. In this paper I will tackle this rationale, arguing that even competing bids could generate a pressure to tender on target’s shareholders and, therefore, in this case should not be considered as a benefit for them

Cross-border reincorporations in the European Union: the case for comprehensive harmonisation

Despite recent decisions of the Court of Justice that liberalise inbound and outbound reincorporations, several Member States still prohibit these transactions or make them impossible or impractical. Even where reincorporations are available in principle, significant legal uncertainties often exist due to a lack of clear and interoperable rules. This situation may, for instance, jeopardise the interests of creditors and minority shareholders of the emigrating companies in circumstances where the involved jurisdictions do not provide for an explicit regulation of cross-border reincorporations aimed at protecting these stakeholders. Furthermore, when procedural rules are unclear or lacking, companies might be struck from the relevant register of the country of origin without being entered in the register of any other Member States. We argue that, as a consequence, harmonisation of the reincorporation process is necessary, and that it is desirable to reach a high minimum standard of creditor and minority shareholder protection

Not Just Efficiency: Insolvency Law in the EU and Its Political Dimension

Certain insolvency law rules, like creditors’ priorities and set-off rights, have a distributive impact on creditors. Distributional rules reflect the hierarchies of values and interests in each jurisdiction and, as a result, have high political relevance and pose an obstacle to reforming the EU Insolvency Regulation. This paper will show the difficulty of reform by addressing two alternative options to regulate cross-border insolvencies in the European Union. The first one is the ‘choice model’, under which companies can select the insolvency law they prefer. Although such a model would allow distressed firms to select the most efficient insolvency law, it would also displace Member States’ power to protect local constituencies. The choice model therefore produces negative externalities and raises legitimacy concerns. The opposite solution is full harmonisation of insolvency law at EU level, including distributional rules. Full harmonisation would have the advantage of internalising all externalities produced by cross-border insolvencies. However, the EU legislative process, which is still based on negotiations between states, is not apt to decide on distributive insolvency rules; additionally, if harmonisation includes such rules, it will indirectly modify national social security strategies and equilibria. This debate shows that the choice regarding power allocation over bankruptcies in the EU depends on the progress of European integration and is mainly a matter of political legitimacy, not only of efficiency

Company ‘Emigration’ and EC Freedom of Establishment: Daily Mail Revisited

Following the ECJ’s recent case law on EC freedom of establishment (the Centros, Überseering and Inspire Art cases), regulatory competition for corporate law within the European Union takes place at an early stage of the incorporation of new companies. In contrast, as regards the ‘moving out’ of companies from the country of incorporation, the ECJ once considered a tax law restriction against the transfer abroad of a company’s administrative seat as compatible with EC freedom of establishment (the Daily Mail case). For years, this decision has been regarded as applicable to all restrictions imposed by countries of incorporation, even the forced liquidation of the ‘emigrating’ company. This paper addresses the question whether EC freedom of establishment really allows Member States to place any limit on the ‘emigration’ of nationally registered companies. It argues that EC freedom of establishment covers the transfer of the administrative seat as well as the transfer of the registered office and, therefore, that the country of incorporation cannot liquidate ‘emigrating’ companies. In addition, it addresses the question whether a new Directive is needed to allow the transfer of a com- pany’s registered office and the identity-preserving company law changes. It argues that such a Directive is necessary to avoid legal uncertainty and to protect the interests of employees, creditors and minority shareholders, among others, who could be detrimentally affected by the ‘emigration’ of national companies

White knights and black knights

Il testo unico della finanza e la direttiva OPA vietano agli amministratori di società quotate di ostacolare le offerte pubbliche d’acquisto delle azioni della società, a meno che tali misure difensive non siano autorizzate dall’assemblea. Fa eccezione, e non necessità di autorizzazione assembleare, la ricerca di offerte concorrenti per le stesse azioni della società. La ragione di quest’eccezione è che: il divieto di misure difensive viene previsto per assicurare che i soci possano decidere liberamente sul merito dell’offerta, mentre la ricerca di offerte concorrenti altro non fa che aumentare le possibilità di scelta per i soci. Nel paper si sostiene che questo argomento è valido e fondato nella maggior parte delle situazioni, ma che l’offerta concorrente, sollecitata dagli amministratori, potrebbe essere costruita in maniera tale da essere “coercitiva” per gli azionisti, ancorché non vantaggiosa, nel senso che qualsiasi azionista razionale con valutazione ex ante viene indotto ad aderirvi

E pluribus unum? Language diversity and the harmonization of company law in the European Union

This work addresses the impact of language diversity and nation-specific doctrinal structures on harmonized company law in the EU. With this aim, two emblematic case studies will be analysed. The first case study is related to the definition of ‘merger’ adopted in the Company Law Directive 2017/1132 (originally in the Third Company Law Directive and the Cross-Border Merger Directive); by relying on the example of the SEVIC case decided by the Court of Justice of the European Union (CJEU), it will be shown that scholars’ and courts’ conception of the definition of ‘merger’ varies according to own domestic doctrinal structures. The second case study is related to the notion of ‘registered office’, which is key for establishing the scope of several harmonizing provisions and the freedom of establishment; this paper analyses terminological fluctuations across language versions of EU legislation and the impact of domestic taxonomies and legal debates upon the interpretation of these notions. These case studies show that company law concepts, despite their highly technical nature, are influenced by discourse constructions conducted within national interpretative communities, and by the language used to draft statutory instruments and discuss legal issues. The task of the CJEU is to counterbalance these local tendencies, and yet it is unlikely that doctrinal structures, rooted in national languages and legal cultures, will disappear

Art. 2542 c.c. (Consiglio di amministrazione)

Commento all'art. 2542 c.c., in tema di consiglio di amministrazione delle societ\ue0 cooperative