AA 2021/2022 - Italian and European Company Law - dott. Giulia Gabassi - Moodle@Units
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AA 2021/2022 - Italian and European Company Law -
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dott. Giulia GabassiITALIAN AND EUROPEAN
COMPANY LAW
AA 2021/2022EUROPEAN COMPANY LAW
INTRODUCTION
LEGISLATIONFIRST COUNCIL DIRECTIVE of 9 March 1968 on co-ordination of
safeguards which, for the protection of the interests of members and
others, are required by Member States of companies within the
meaning of the second paragraph of Article 58 of the Treaty, with a view
to making such safeguards equivalent throughout the Community
• abolition of restrictions on freedom of establishment is a matter of
urgency, especially in regard to companies limited by shares or
otherwise having limited liability, since the activities of such
companies often extend beyond the frontiers of national territories
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dott. Giulia GabassiEUROPEAN COMPANY LAW
• STATE: administrative power, legislative power, judicial power
• SOVEREIGNTY
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dott. Giulia GabassiJudgment of the Court of Justice Van Geld en
Loos (C-26/62)
• «THE COMMUNITY CONSTITUTES A NEW LEGAL
ORDER OF INTERNATIONAL LAW FOR THE BENEFIT OF
WHICH THE STATES HAVE LIMITED THEIR SOVEREIGN
RIGHTS, ALBEIT WITHIN LIMITED FIELDS, AND THE
SUBJECTS OF WHICH COMPRISE NOT ONLY MEMBER
STATES BUT ALSO THEIR NATIONALS”
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dott. Giulia GabassiTUE - TREATY ON EUROPEAN UNION
Article 4:
1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain
with the Member States.
2. The Union shall respect the equality of Member States before the Treaties as well as their national
identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and
local self-government. It shall respect their essential State functions, including ensuring the territorial
integrity of the State, maintaining law and order and safeguarding national security. In particular,
national security remains the sole responsibility of each Member State.
3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full
mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of
the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure
which could jeopardise the attainment of the Union's objectives.
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dott. Giulia GabassiTUE - TREATY ON EUROPEAN UNION
Article 5 (ex Article 5 TEC)
1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is
governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by
the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the
Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act
only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States,
either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed
action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid
down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments
ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to
achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid
down in the Protocol on the application of the principles of subsidiarity and proportionality.
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dott. Giulia GabassiEUROPEAN COMPANY LAW
• HIERARCHY OF SOURCES
• ART. 117, 1° co. Costituzione italiana: «La potestà legislativa è esercitata
dallo Stato e dalle Regioni nel rispetto della Costituzione, nonché dei
vincoli derivanti dall'ordinamento comunitario e dagli obblighi
internazionali»
(L. Cost. 3/2001)
Art. 11 Cost.: «L'Italia ripudia la guerra come strumento di offesa alla libertà degli
altri popoli e come mezzo di risoluzione delle controversie internazionali;
consente, in condizioni di parità con gli altri Stati, alle limitazioni di sovranità
necessarie ad un ordinamento che assicuri la pace e la giustizia fra le Nazioni;
promuove e favorisce le organizzazioni internazionali rivolte a tale scopo.»
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dott. Giulia GabassiJudgment of the Court of 15 July 1964 -
Flaminio Costa v E.N.E.L.
• BY CONTRAST WITH ORDINARY INTERNATIONAL TREATIES, THE EEC TREATY HAS CREATED ITS OWN LEGAL SYSTEM
WHICH, ON THE ENTRY INTO FORCE OF THE TREATY, BECAME AN INTEGRAL PART OF THE LEGAL SYSTEMS OF THE
MEMBER STATES AND WHICH THEIR COURTS ARE BOUND TO APPLY .
• BY CREATING A COMMUNITY OF UNLIMITED DURATION, HAVING ITS OWN INSTITUTIONS, ITS OWN PERSONALITY, ITS
OWN LEGAL CAPACITY AND CAPACITY OF REPRESENTATION ON THE INTERNATIONAL PLANE AND, MORE PARTICULARLY,
REAL POWERS STEMMING FROM A LIMITATION OF SOVEREIGNTY OR A TRANSFER OF POWERS FROM THE STATES TO
THE COMMUNITY, THE MEMBER STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS AND HAVE THUS CREATED A BODY OF
LAW WHICH BINDS BOTH THEIR NATIONALS AND THEMSELVES .
• THE INTEGRATION INTO THE LAWS OF EACH MEMBER STATE OF PROVISIONS WHICH DERIVE FROM THE COMMUNITY
AND MORE GENERALLY THE TERMS AND THE SPIRIT OF THE TREATY, MAKE IT IMPOSSIBLE FOR THE STATES, AS A
COROLLARY, TO ACCORD PRECEDENCE TO A UNILATERAL AND SUBSEQUENT MEASURE OVER A LEGAL SYSTEM
ACCEPTED BY THEM ON A BASIS OF RECIPROCITY . SUCH A MEASURE CANNOT THEREFORE BE INCONSISTENT WITH
THAT LEGAL SYSTEM . THE LAW STEMMING FROM THE TREATY, AN INDEPENDENT SOURCE OF LAW, COULD NOT
BECAUSE OF ITS SPECIAL AND ORIGINAL NATURE, BE OVERRIDDEN BY DOMESTIC LEGAL PROVISIONS, HOWEVER
FRAMED, WITHOUT BEING DEPRIVED OF ITS CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS OF THE
COMMUNITY ITSELF BEING CALLED INTO QUESTION .
• THE TRANSFER BY THE STATES FROM THEIR DOMESTIC LEGAL SYSTEM TO THE COMMUNITY LEGAL SYSTEM OF THE
RIGHTS AND OBLIGATIONS ARISING UNDER THE TREATY CARRIES WITH IT A PERMANENT LIMITATION OF THEIR
SOVEREIGN RIGHTS .
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dott. Giulia GabassiJudgment of the Court of 9 March 1978
Simmenthal s.p.a.
• THE DIRECT APPLICABILITY OF COMMUNITY LAW MEANS THAT ITS RULES MUST BE FULLY AND UNIFORMLY APPLIED IN ALL THE
MEMBER STATES FROM THE DATE OF THEIR ENTRY INTO FORCE AND FOR SO LONG AS THEY CONTINUE IN FORCE . DIRECTLY
APPLICABLE PROVISIONS ARE A DIRECT SOURCE OF RIGHTS AND DUTIES FOR ALL THOSE AFFECTED THEREBY , WHETHER MEMBER
STATES OR INDIVIDUALS ; THIS CONSEQUENCE ALSO CONCERNS ANY NATIONAL COURT WHOSE TASK IT IS AS AN ORGAN OF A
MEMBER TO PROTECT THE RIGHTS CONFERRED UPON INDIVIDUALS BY COMMUNITY LAW .
• IN ACCORDANCE WITH THE PRINCIPLE OF THE PRECEDENCE OF COMMUNITY LAW , THE RELATIONSHIP BETWEEN PROVISIONS OF
THE TREATY AND DIRECTLY APPLICABLE MEASURES OF THE INSTITUTIONS ON THE ONE HAND AND THE NATIONAL LAW OF THE
MEMBER STATES ON THE OTHER IS SUCH THAT THOSE PROVISIONS AND MEASURES NOT ONLY BY THEIR ENTRY INTO FORCE RENDER
AUTOMATICALLY INAPPLICABLE ANY CONFLICTING PROVISION OF CURRENT NATIONAL LAW BUT - IN SO FAR AS THEY ARE AN
INTEGRAL PART OF , AND TAKE PRECEDENCE IN , THE LEGAL ORDER APPLICABLE IN THE TERRITORY OF EACH OF THE MEMBER
STATES - ALSO PRECLUDE THE VALID ADOPTION OF NEW NATIONAL LEGISLATIVE MEASURES TO THE EXTENT TO WHICH THEY WOULD
BE INCOMPATIBLE WITH COMMUNITY PROVISIONS .
• ANY RECOGNITION THAT NATIONAL LEGISLATIVE MEASURES WHICH ENCROACH UPON THE FIELD WITHIN WHICH THE COMMUNITY
EXERCISES ITS LEGISLATIVE POWER OR WHICH ARE OTHERWISE INCOMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW HAD
ANY LEGAL EFFECT WOULD AMOUNT TO A CORRESPONDING DENIAL OF THE EFFECTIVENESS OF OBLIGATIONS UNDERTAKEN
UNCONDITIONALLY AND IRREVOCABLY BY MEMBER STATES PURSUANT TO THE TREATY AND WOULD THUS IMPERIL THE VERY
FOUNDATIONS OF THE COMMUNITY .
• A NATIONAL COURT WHICH IS CALLED UPON , WITHIN THE LIMITS OF ITS JURISDICTION , TO APPLY PROVISIONS OF COMMUNITY
LAW IS UNDER A DUTY TO GIVE FULL EFFECT TO THOSE PROVISIONS , IF NECESSARY REFUSING OF ITS OWN MOTION TO APPLY ANY
CONFLICTING PROVISION OF NATIONAL LEGISLATION , EVEN IF ADOPTED SUBSEQUENTLY , AND IT IS NOT NECESSARY FOR THE COURT
TO REQUEST OR AWAIT THE PRIOR SETTING ASIDE OF SUCH PROVISIONS BY LEGISLATIVE OR OTHER CONSTITUTIONAL MEANS .
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dott. Giulia Gabassiwww.europa.eu - primary and secondary UE
legislation
• The European Union is based on the rule of law. This means that every action
taken by the EU is founded on treaties that have been approved voluntarily and
democratically by all EU member countries. For example, if a policy area is not
cited in a treaty, the Commission cannot propose a law in that area.
• A treaty is a binding agreement between EU member countries. It sets out EU
objectives, rules for EU institutions, how decisions are made and the relationship
between the EU and its member countries.
• Treaties are amended to make the EU more efficient and transparent, to prepare
for new member countries and to introduce new areas of cooperation – such as
the single currency.
• Under the treaties, EU institutions can adopt legislation, which the member
countries then implement. The complete texts of treaties, legislation, case law
and legislative proposals can be viewed using the EUR-Lex database of EU law.
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dott. Giulia Gabassi• The aims set out in the EU treaties are achieved by several types of legal act.
Some are binding, others are not. Some apply to all EU countries, others to just a
few.
Regulations
• A "regulation" is a binding legislative act. It must be applied in its entirety across
the EU. For example, when the EU wanted to make sure that there are common
safeguards on goods imported from outside the EU, the Council adopted a
regulation.
Directives
• A "directive" is a legislative act that sets out a goal that all EU countries must
achieve. However, it is up to the individual countries to devise their own laws on
how to reach these goals. One example is the EU consumer rights directive,
which strengthens rights for consumers across the EU, for example by
eliminating hidden charges and costs on the internet, and extending the period
under which consumers can withdraw from a sales contract.
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dott. Giulia GabassiDecisions
• A "decision" is binding on those to whom it is addressed (e.g. an EU country or an individual
company) and is directly applicable. For example, the Commission issued a decision on the
EU participating in the work of various counter-terrorism organisations. The decision related
to these organisations only.
Recommendations
• A "recommendation" is not binding. When the Commission issued a recommendation that
EU countries' law authorities improve their use of videoconferencing to help judicial services
work better across borders, this did not have any legal consequences. A recommendation
allows the institutions to make their views known and to suggest a line of action without
imposing any legal obligation on those to whom it is addressed.
Opinions
• An "opinion" is an instrument that allows the institutions to make a statement in a non-
binding fashion, in other words without imposing any legal obligation on those to whom it is
addressed. An opinion is not binding. It can be issued by the main EU institutions
(Commission, Council, Parliament), the Committee of the Regions and the European
Economic and Social Committee. While laws are being made, the committees give opinions
from their specific regional or economic and social viewpoint. For example, the Committee
of the Regions issued an opinion on the clean air policy package for Europe.
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dott. Giulia GabassiArticle 288 (ex Article 249 TEC) TFUE -
TREATY ON THE FUNCTIONING OF THE
EUROPEAN UNION
To exercise the Union's competences, the institutions shall adopt
regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its
entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods.
A decision shall be binding in its entirety. A decision which specifies
those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
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dott. Giulia GabassiTFUE - TREATY ON THE FUNCTIONING OF THE
EUROPEAN UNION
Article 352 (ex Article 308 TEC)
1. If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to
attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the
Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the
European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the
Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the
Commission and after obtaining the consent of the European Parliament.
2. Using the procedure for monitoring the subsidiarity principle referred to in Article 5 of the Treaty on European
Union, the Commission shall draw national Parliaments' attention to proposals based on this Article.
3. Measures based on this Article shall not entail harmonisation of Member States' laws or regulations in cases where
the Treaties exclude such harmonisation.
4. This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and
any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on
European Union.
[c.d. flexibility clause]
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dott. Giulia GabassiEUROPEAN COMPANY LAW
• ITALIAN COMPANIES VS FOREIGN COMPANIES
• CONNECTING FACTOR
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dott. Giulia GabassiS.MOCK, HARMONISATION, REGULATION AND LEGISLATIVE COMPETITION IN
EUROPEAN CORPORATE LAW, in Ger. Law Jour., 2002
“Investors and companies are more attracted by foreign markets which
are similar to their own markets. A harmonized Corporate Law
therefore attracts companies and investors to expand into the markets
of the other Member States. Due to the harmonization of Corporate
Law, trade among Member States is expected to increase and national
markets are seen to become more integrated into the European
Common Market. Finally, a harmonized Corporate Law gives the
European Community more influence on the international development
and debate on Corporate Law.”
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dott. Giulia Gabassi“The process of harmonization of Corporate Law in the European Community has to be
seen in relation to the right of establishment of companies (art. 43, 48 EC). The
freedom to create subsidiaries and branches in other Member States with different
Corporate Laws could lead to different legal conditions for creditors. As a consequence,
the creditors of such subsidiaries and branches are confronted with a different legal
system than the creditors of the holding company. Therefore the harmonization of the
national Corporate Laws was regarded as a necessary compensation for the right of
establishment of companies. All creditors should ideally be in same legal position and
should have the same rights even if in the context of different national Corporate Laws.
In theory, the differences of the national Corporate Laws should be of no importance
to the choice of one Member state for the establishment of a company. Instead, firms
should consider economic aspects, not the corporate law of a Member State, when
deciding where to incorporate. The harmonization process therefore is focused on the
creation of a legal playing field. Another aspect of the harmonization process was the
creation of equal conditions in competition for the companies in all Member States.
The differences among the national Corporate Laws should not give advantages or
disadvantages to certain companies. Corporate Law should therefore also have to be
neutral to competition.”
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dott. Giulia GabassiEUROPEAN COMPANY LAW
SOVEREIGNTY
• approximation • freedom of
of laws establishment
harmonisation
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dott. Giulia GabassiEUROPEAN COMPANY LAW
EUROPEAN LEGISLATION COURT OF JUSTICE
REGULATIONS
DIRECTIVES
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dott. Giulia GabassiLEGISLATION - BASIS
• TREATY ON THE FUNCTIONING OF THE
EUROPEAN UNION (TFUE)
• TITLE IV FREE MOVEMENT OF PERSONS,
SERVICES AND CAPITAL
• CHAPTER 2 - RIGHT OF ESTABLISHMENT
• ARTT. 49 - 54
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dott. Giulia GabassiART. 49 TFUE (ex Article 43 TEC)
Within the framework of the provisions set out below, restrictions on the
freedom of establishment of nationals of a Member State in the territory of
another Member State shall be prohibited. Such prohibition shall also apply
to restrictions on the setting-up of agencies, branches or subsidiaries by
nationals of any Member State established in the territory of any Member
State.
Freedom of establishment shall include the right to take up and pursue
activities as self-employed persons and to set up and manage undertakings,
in particular companies or firms within the meaning of the second paragraph
of Article 54, under the conditions laid down for its own nationals by the law
of the country where such establishment is effected, subject to the
provisions of the Chapter relating to capital.
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dott. Giulia GabassiArticle 50 (ex Article 44 TEC)
1. In order to attain freedom of establishment as regards a particular activity, the European Parliament and the Council, acting in accordance with the
ordinary legislative procedure and after consulting the Economic and Social Committee, shall act by means of directives.
2. The European Parliament, the Council and the Commission shall carry out the duties devolving upon them under the preceding provisions, in
particular:
(a) by according, as a general rule, priority treatment to activities where freedom of establishment makes a particularly valuable contribution to the
development of production and trade;
(b) by ensuring close cooperation between the competent authorities in the Member States in order to ascertain the particular situation within the Union
of the various activities concerned;
(c) by abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded
between Member States, the maintenance of which would form an obstacle to freedom of establishment;
(d) by ensuring that workers of one Member State employed in the territory of another Member State may remain in that territory for the purpose of
taking up activities therein as self-employed persons, where they satisfy the conditions which they would be required to satisfy if they were entering that
State at the time when they intended to take up such activities;
(e) by enabling a national of one Member State to acquire and use land and buildings situated in the territory of another Member State, in so far as this
does not conflict with the principles laid down in Article 39(2);
(f) by effecting the progressive abolition of restrictions on freedom of establishment in every branch of activity under consideration, both as regards the
conditions for setting up agencies, branches or subsidiaries in the territory of a Member State and as regards the subsidiaries in the territory of a Member
State and as regards the conditions governing the entry of personnel belonging to the main establishment into managerial or supervisory posts in such
agencies, branches or subsidiaries;
(g) by coordinating to the necessary extent the safeguards which, for the protection of the interests of members and others, are required by Member
States of companies or firms within the meaning of the second paragraph of Article 54 with a view to making such safeguards equivalent throughout the
Union;
(h) by satisfying themselves that the conditions of establishment are not distorted by aids granted by Member States.
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dott. Giulia GabassiArticle 51 (ex Article 45 TEC)
The provisions of this Chapter shall not apply, so far as any given
Member State is concerned, to activities which in that State are
connected, even occasionally, with the exercise of official
authority.
The European Parliament and the Council, acting in accordance
with the ordinary legislative procedure, may rule that the
provisions of this Chapter shall not apply to certain activities.
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dott. Giulia GabassiArticle 52 (ex Article 46 TEC)
The provisions of this Chapter and measures taken in pursuance
thereof shall not prejudice the applicability of provisions laid down by
law, regulation or administrative action providing for special treatment
for foreign nationals on grounds of public policy, public security or
public health.
2. The European Parliament and the Council shall, acting in
accordance with the ordinary legislative procedure, issue directives for
the coordination of the abovementioned provisions.
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dott. Giulia GabassiArticle 53 (ex Article 47 TEC)
1.In order to make it easier for persons to take up and pursue activities
as self-employed persons, the European Parliament and the Council
shall, acting in accordance with the ordinary legislative procedure,
issue directives for the mutual recognition of diplomas, certificates and
other evidence of formal qualifications and for the coordination of the
provisions laid down by law, regulation or administrative action in
Member States concerning the taking-up and pursuit of activities as
self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions,
the progressive abolition of restrictions shall be dependent upon
coordination of the conditions for their exercise in the various Member
States.
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dott. Giulia GabassiArticle 54 (ex Article 48 TEC)
Companies or firms formed in accordance with the law of a Member
State and having their registered office, central administration or
principal place of business within the Union shall, for the purposes of
this Chapter, be treated in the same way as natural persons who are
nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil
or commercial law, including cooperative societies, and other legal
persons governed by public or private law, save for those which are
non-profit-making.
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dott. Giulia GabassiArticle 55 (ex Article 294 TEC)
Member States shall accord nationals of the other
Member States the same treatment as their own
nationals as regards participation in the capital of
companies or firms within the meaning of Article 54,
without prejudice to the application of the other
provisions of the Treaties.
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dott. Giulia GabassiHARMONISATION
•FREEDOM OF ESTABLISHMENT
•SAFE TRADE
•EQUAL OPPORTUNITIES BETWEEN
COMPETITORS
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dott. Giulia GabassiLEGISLATION – DIRECTIVES/REGULATIONS
• MAIN TOPICS
• Publicity of the companies
• Safeguard of third parties, creditors and shareholders
• Shareholders’ rights
• Capital
• Accounts and audit
• Mergers and divisions, conversions
• Internal/external
• UNIFORM MODELS
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dott. Giulia GabassiLEGISLATION - COMPANIES
• FIRST DIRECTIVE
• DIR. 68/151/CEE of 9 March 1968 on co-ordination of safeguards
which, for the protection of the interests of members and others,
are required by Member States of companies within the meaning of
the second paragraph of Article 58 of the Treaty, with a view to
making such safeguards equivalent throughout the Community
• Directive 2003/58/EC of 15 July 2003 amending Council Directive
68/151/EEC, as regards disclosure requirements in respect of certain
types of companies
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dott. Giulia GabassiLEGISLATION - COMPANIES
• FIRST DIRECTIVE repealed by
• DIRECTIVE 2009/101/EC of 16 September 2009 on
coordination of safeguards which, for the protection of the
interests of members and third parties, are required by
Member States of companies within the meaning of the
second paragraph of Article 48 of the Treaty, with a view to
making such safeguards equivalent
• repealed by
• DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL of 14 June 2017 relating to certain
aspects of company law (codification)
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dott. Giulia GabassiLEGISLATION - COMPANIES
• SECOND DIRECTIVE
• DIR. 77/91/CEE of 13 December 1976 on coordination of safeguards
which, for the protection of the interests of members and others, are
required by Member States of companies within the meaning of the
second paragraph of Article 58 of the Treaty, in respect of the formation of
public limited liability companies and the maintenance and alteration of
their capital, with a view to making such safeguards equivalent
• DIR. 2006/68/EC of 6 September 2006 amending Council
Directive 77/91/EEC as regards the formation of public limited liability
companies and the maintenance and alteration of their capital
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dott. Giulia GabassiLEGISLATION - COMPANIES
• SECOND DIRECTIVE REPEALED BY
• DIRECTIVE 2012/30/EU of 25 October 2012 on coordination of
safeguards which, for the protection of the interests of members and
others, are required by Member States of companies within the
meaning of the second paragraph of Article 54 of the Treaty on the
Functioning of the European Union, in respect of the formation of
public limited liability companies and the maintenance and alteration
of their capital, with a view to making such safeguards equivalent
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dott. Giulia Gabassi• repealed by
• DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 14 June 2017 relating to certain aspects of company law
(codification)
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dott. Giulia GabassiLEGISLATION - COMPANIES
• ELEVENTH DIRECTIVE
• DIR. 89/666/EEC of 21 December 1989 concerning disclosure
requirements in respect of branches opened in a Member State by
certain types of company governed by the law of another State
• repealed by
• DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL of 14 June 2017 relating to certain aspects of company
law (codification)
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dott. Giulia GabassiLEGISLATION - COMPANIES
• TWELFTH DIRECTIVE
• DIR. 89/667/EEC of 21 December 1989 on single-member private
limited-liability companies
repealed by
• DIR. 2009/102/EC of 16 September 2009 in the area of company law
on single-member private limited liability companies (codified
version)
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dott. Giulia GabassiLEGISLATION - COMPANIES
• DIRECTIVE 2007/36/EC of 11 July 2007 on the exercise
of certain rights of shareholders in listed companies
• DIRECTIVE (EU) 2017/828 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL of 17 May 2017
amending Directive 2007/36/EC as regards the
encouragement of long-term shareholder
engagement
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dott. Giulia GabassiLEGISLATION – ACCOUNTS AND AUDIT
• FOURTH DIRECTIVE
• DIR. 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of the Treaty on
the annual accounts of certain types of companies
• SEVENTH DIRECTIVE
• DIR. 83/349/EEC of 13 June 1983 based on the Article 54 (3) (g) of the
Treaty on consolidated accounts
• DIRECTIVE 2009/49/EC of 18 June 2009 amending Council Directives
78/660/EEC and 83/349/EEC as regards certain disclosure requirements for
medium-sized companies and the obligation to draw up consolidated
accounts
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dott. Giulia GabassiLEGISLATION - ACCOUNTS AND AUDIT
• EIGHT DIRECTIVE
• DIR. 84/253/EEC of 10 April 1984 based on Article 54 (3) (g) of the
Treaty on the approval of persons responsible for carrying out the
statutory audits of accounting documents
• DIR. 2006/43/EC of 17 May 2006 on statutory audits of annual
accounts and consolidated accounts, amending Council Directives
78/660/EEC and 83/349/EEC and repealing Council Directive
84/253/EEC
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dott. Giulia GabassiLEGISLATION – ACCOUNTS AND AUDIT
• DIRECTIVE 2013/34/EU of 26 June 2013 on the annual
financial statements, consolidated financial statements and
related reports of certain types of undertakings, amending
Directive 2006/43/EC of the European Parliament and of the
Council and repealing Council Directives 78/660/EEC and
83/349/EE
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dott. Giulia GabassiLEGISLATION - ACCOUNTS AND AUDIT
• DIRECTIVE 2014/56/EU OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 16 April 2014 amending Directive 2006/43/EC on
statutory audits of annual accounts and consolidated accounts
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dott. Giulia GabassiLEGISLATION - ACCOUNTS AND AUDIT
• REGULATION (EU) No. 537/2014 of 16 April 2014 on
specific requirements regarding statutory audit of
public-interest entities and repealing Commission
Decision 2005/909/EC
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dott. Giulia GabassiLEGISLATION – MERGERS AND DIVISIONS
• THIRD DIRECTIVE
• DIR. 78/855/EEC of 9 October 1978 based on Article 54 (39 (g) of the
Treaty concerning mergers of public limited liability companies
• REPEALED…
• SIXTH DIRECTIVE
• DIR. 82/891/EEC of 17 December 1982 based on Article 54 (3) (g) of
the Treaty, concerning the division of public limited liability
companies
• REPEALED…
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dott. Giulia GabassiLEGISLATION – MERGERS AND DIVISIONS
• DIRECTIVE 2005/56/EC OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL of 26 October
2005 on cross-border mergers of limited liability
companies
• repealed by
• DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 14 June 2017 relating to certain aspects of company law
(codification)
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dott. Giulia GabassiLEGISLATION – MERGERS AND DIVISIONS
• DIRECTIVE 2009/109/EC of 16 September 2009 amending
Council Directives 77/91/EEC, 78/855/EEC and 82/891/EEC,
and Directive 2005/56/EC as regards reporting and
documentation requirements in the case of mergers and
divisions
• repealed by
• DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL of 14 June 2017
relating to certain aspects of company law (codification)
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dott. Giulia GabassiLEGISLATION – MERGERS AND DIVISIONS
• THIRD DIRECTIVE REPEALED BY
• DIRECTIVE 2011/35/EU of 5 April 2011 concerning mergers
of public limited liability companies (codification)
• repealed by
• DIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL of 14 June 2017 relating to certain aspects of company
law (codification)
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dott. Giulia GabassiLEGISLATION – MERGERS AND DIVISIONS
• Dir. 2019/2121 OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL of 27 November 2019
amending Directive (EU) 2017/1132 as regards
cross-border conversions, mergers and divisions
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dott. Giulia GabassiLEGISLATION – LISTED COMPANIES
• DIRECTIVE 2004/25/EC OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 21 April 2004
on takeover bids
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dott. Giulia GabassiLEGISLATION – LISTED COMPANIES
• Directive 2004/109/EC of the European Parliament and of the Council
of 15 December 2004 on the harmonisation of transparency
requirements in relation to information about issuers whose
securities are admitted to trading on a regulated market and
amending Directive 2001/34/EC
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dott. Giulia GabassiLEGISLATION - digital tools and processes in
company law
• DIRECTIVE (EU) 2019/1151 OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL of 20 June 2019 amending Directive (EU) 2017/1132 as regards
the use of digital tools and processes in company law
• Whereas:
2) The use of digital tools and processes to more easily, rapidly and time- and
cost-effectively initiate economic activity by setting up a company or by
opening a branch of that company in another Member State, and to provide
comprehensive and accessible information on companies, is one of the
prerequisites for the effective functioning, modernisation and administrative
streamlining of a competitive internal market and for ensuring the
competitiveness and trustworthiness of companies
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dott. Giulia GabassiDIRECTIVE (EU) 2017/1132 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 14 June 2017
relating to certain aspects of company law (codification)
• TITLE I GENERAL PROVISIONS AND THE ESTABLISHMENT AND
FUNCTIONING OF LIMITED LIABILITY COMPANIES
• Chapter I Subject matter
• Chapter II Incorporation and nullity of the company and validity of its obligations
• Chapter III Disclosure and interconnection of central, commercial and companies
registers
• Chapter IV Capital maintenance and alteration
• TITLE II MERGERS AND DIVISIONS OF LIMITED LIABILITY COMPANIES
• Chapter I Mergers of public limited liability companies
• Chapter II Cross-border mergers of limited liability companies
• Chapter III Divisions of public limited liability companies
• TITLE III FINAL PROVISIONS
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dott. Giulia GabassiWhereas:
• (3) In order to ensure minimum equivalent protection for both
shareholders and creditors of public limited liability companies, the
coordination of national provisions relating to the formation of such
companies and to the maintenance, increase or reduction of their
capital is particularly important
• (4) In the Union, the statutes or instrument of incorporation of a
public limited liability company must make it possible for any
interested person to acquaint oneself with the basic particulars of
the company, including the exact composition of its capital
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dott. Giulia GabassiWhereas:
• (5) The protection of third parties should be ensured by provisions which
restrict to the greatest possible extent the grounds on which obligations
entered into in the name of companies limited by shares or otherwise having
limited liability are not valid.
• (6) It is necessary, in order to ensure certainty in the law as regards relations
between companies and third parties, and also between members, to limit the
cases in which nullity can arise and the retroactive effect of a declaration of
nullity, and to fix a short time limit within which third parties may enter an
objection to any such declaration.
• (7) The coordination of national provisions concerning disclosure, the validity of
obligations entered into by, and the nullity of, companies limited by shares or
otherwise having limited liability, is of special importance, particularly for the
purpose of protecting the interests of third parties.
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dott. Giulia GabassiWhereas:
• (12) Cross-border access to company information should be facilitated by allowing, in
addition to the compulsory disclosure made in one of the languages permitted in the
company's Member State, the voluntary registration in additional languages of the
required documents and particulars. Third parties acting in good faith should be able
to rely on the translations thereof.
• (15) In respect of branches, the lack of coordination, in particular concerning
disclosure, gives rise to some disparities, in the protection of shareholders and third
parties, between companies which operate in other Member States by opening
branches and those which operate there by creating subsidiaries.
• (16) To ensure the protection of persons who deal with companies through the
intermediary of branches, measures in respect of disclosure are required in the
Member State in which a branch is situated. In certain respects, the economic and
social influence of a branch can be comparable to that of a subsidiary company, so that
there is public interest in disclosure of the company at the branch. To effect such
disclosure, it is necessary to make use of the procedure already instituted for
companies with share capital within the Union.
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dott. Giulia GabassiWhereas:
• (23) The interconnection of central, commercial and companies
registers is a measure required to create a more business-friendly
legal and fiscal environment. It should contribute to fostering the
competitiveness of European business by reducing administrative
burdens and increasing legal certainty and thus contributing to an
exit from the global economic and financial crisis, which is one of the
priorities of the agenda of Europe 2020. It should also improve cross-
border communication between registers by using innovations in
information and communication technology.
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dott. Giulia GabassiWhereas:
• (40) Union provisions are necessary for maintaining the capital,
which constitutes the creditors' security, in particular by prohibiting
any reduction thereof by distribution to shareholders where the latter
are not entitled to it and by imposing limits on the right of public
limited liability companies to acquire their own shares.
• (41) The restrictions on a public limited liability company's
acquisition of its own shares apply not only to acquisitions made by a
company itself but also to those made by any person acting in his
own name but on the company's behalf.
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dott. Giulia GabassiWhereas:
• (46) It is necessary, having regard to the objectives of Article 50(2)(g)
of the Treaty, that the Member States' laws relating to the increase or
reduction of capital ensure that the principles of equal treatment of
shareholders in the same position and of protection of creditors
whose claims exist prior to the decision on reduction are observed
and harmonised.
• (47) In order to enhance standardised creditor protection in all
Member States, creditors should be able to resort, under certain
conditions, to judicial or administrative proceedings where their
claims are at stake, as a consequence of a reduction in the capital of a
public limited liability company.
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dott. Giulia GabassiWhereas:
• (49) The protection of the interests of members and third parties requires
that the laws of the Member States relating to mergers of public limited
liability companies be coordinated, and that provision for mergers be made
in the laws of all the Member States.
• (56) In order to facilitate cross-border merger operations, it should be
specified that, unless this Directive provides otherwise, each company taking
part in a cross-border merger, and each third party concerned, remains
subject to the provisions and formalities of the national law which would be
applicable in the case of a national merger. None of the provisions and
formalities of national law, to which reference is made in this Directive,
should introduce restrictions on freedom of establishment or on the free
movement of capital, save where these can be justified in accordance with
the case-law of the Court of Justice of the European Union and in particular,
by requirements of the general interest and are both necessary for, and
proportionate to, the attainment of such overriding requirements.
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dott. Giulia GabassiWhereas:
• (66) If employees have participation rights in one of the merging companies
under the circumstances set out in this Directive and, if the national law of the
Member State in which the company resulting from the cross-border merger has
its registered office does not provide for the same level of participation as
operated in the relevant merging companies, including in committees of the
supervisory board that have decision-making powers, or does not provide for the
same entitlement to exercise rights for employees of establishments resulting
from the cross- border merger, the participation of employees in the company
resulting from the cross-border merger and their involvement in the definition of
such rights should be regulated. To that end, the principles and procedures
provided for in Council Regulation (EC) No 2157/2001 (1) and in Council Directive
2001/86/EC (2), should be taken as a basis, subject, however, to modifications
that are deemed necessary because the resulting company will be subject to the
national laws of the Member State where it has its registered office. A prompt
start to negotiations under Article 133 of this Directive, with a view to not
unnecessarily delaying mergers, may be ensured by Member States in
accordance with Article 3(2)(b) of Directive 2001/86/EC.
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dott. Giulia GabassiArticle 1 Subject matter
• This Directive lays down measures concerning the following:
— the coordination of safeguards which, for the protection of the interests of
members and others, are required by Member States of companies within the
meaning of the second paragraph of Article 54 of the Treaty, in respect of the
formation of public limited liability companies and the maintenance and
alteration of their capital, with a view to making such safeguards equivalent,
— the coordination of safeguards which, for the protection of the interests of
members and third parties, are required by Member States of companies within
the meaning of the second paragraph of Article 54 of the Treaty, in respect of
disclosure, the validity of obligations entered into by, and the nullity of,
companies limited by shares or otherwise having limited liability, with a view to
making such safeguards equivalent,
— the disclosure requirements in respect of branches opened in a Member State
by certain types of company governed by the law of another State,
— mergers of public limited liability companies,
— cross-border mergers of limited liability companies,
— the division of public limited liability companies.
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dott. Giulia GabassiIncorporation
• Compulsory information to be provided in the statutes or instruments
of incorporation or separate documents
• Authorisation for commencing business and liabilities incurred by or
on behalf of the company during the period before such authorisation
is granted or refused
• Acts of the organs of a company and its representation
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dott. Giulia GabassiNullity
• Conditions for nullity of a company and consequences (11-12)
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dott. Giulia GabassiDisclosure
• Documents and particulars to be disclosed by companies
• Disclosure of documents and particulars relating to a branch
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dott. Giulia GabassiCapital maintenance and alteration
• Minimum capital
• Subscribed capital may be formed only of assets capable of economic
assessment. However, an undertaking to perform work or supply
services may not form part of those assets
• Experts' report on consideration other than in cash
• Rules on distribution
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dott. Giulia GabassiCirculation of shares - Acquisition of its own
shares
• [DIR. 77/91/CEE (second directive) as amended by dir. 2006/68/CE
repealed by dir. 2012/30/UE and lastly repealed by dir.
2017/1132/UE; REGULATION (EU) No 596/2014 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL of 16 April 2014 on market abuse
(market abuse regulation) and repealing Directive 2003/6/EC of the
European Parliament and of the Council and Commission Directives
2003/124/EC, 2003/125/EC and 2004/72/EC]
• Artt. 2357ss. c.c.
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dott. Giulia GabassiSubscription of its own shares
• Problems:
• Watered-down capital
• Exercise of patrimonial and administrative rights
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dott. Giulia GabassiProhibition to subscribe
2357quater c.c. – the company cannot subscribe its own shares
Direct Indirect
• In case of subscription • In case of subscription
• The shares shall be fully • The third party which
paid up by the founders subscribed in its own name
and on behalf of the
or the promoting company shall be considered
members or by the as subscriber
directors, in case of • + liability of
increase of the capital founders/promoting
members/directors
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dott. Giulia GabassiAcquisition of its own shares
• The company can purchase its own shares except to the extent of profits
available and available reserves
• Only shares entirely paid up
• Authorization of the shareholders’ meeting
• Maximum amount
• Time limit
• Share price (minimum/maximum)
• Quantity limits: for companies which resort to risk capital market = 1/5 of
the capital
• The rules apply also to purchases executed by fiduciary
• Financial statement: reserve for own shares
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dott. Giulia GabassiAcquisition of its own shares
• What happens in case of violation?
• The shares must be sold within one year
• If not, they must be cancelled and the capital must be reduced
• Exceptions (2357-bis)
• Reduction of the capital
• Without consideration (but totally paid up)
• Universal succession
• Enforcement of civil judgement
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dott. Giulia GabassiAcquisition of its own shares
• Rules
• The directors cannot dispose of the purchased shares without
previous authorization of the shareholders’ meeting
• The right to receive dividends and the option right are
proportionally allocated to the other shares
• The voting right is suspended
• Companies which not resort to risk capital market: calculated for the
constitution/resolution quorum
• Companies which resort to risk capital market: calculated only for the constitution
quorum
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dott. Giulia GabassiOther transactions (2358 c.c.)
• Prohibition to grant loan or give guarantees for the purchase or
subscription of its own shares, unless conditions required by art. 2358
c.c.
• Authorization of the extraordinary shareholders’ meeting
• Report of the directors (interest of the company, risks, price)
• Limit of the profits available for distribution and available reserves
• Financial statement: unavailable reserve
• Prohibition to accept its own shares as security
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dott. Giulia Gabassi…and groups
• 2359 ss. c.c.
• Fundamental rules:
• The controlled (subsidiary) company cannot purchase shares of the
controlling (parent) company except for the amount of the available profits
and reserves (and only shares fully paid up)
• The subsidiary company cannot subscribe shares of the parent company
• Prohibition of reciprocal subscription
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dott. Giulia GabassiMAJOR SHAREHOLDINGS IN LISTED
COMPANIES
• DIR. 2004/25/EC – DIR. 2004/109/EC
• Regolamento (UE) 2017/1129 del Parlamento europeo e del Consiglio,
del 14 giugno 2017, relativo al prospetto da pubblicare per l’offerta
pubblica o l’ammissione alla negoziazione di titoli in un mercato
regolamentato, e che abroga la direttiva 2003/71/CETesto rilevante ai
fini del SEE.
• DECRETO LEGISLATIVO 2 febbraio 2021 , n. 17
• Transparency
• Takeover bids
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dott. Giulia GabassiRIGHTS OF THE SHAREHOLDERS IN LISTED
COMPANIES
• DIRECTIVE 2007/36/EC of 11 July 2007 on the exercise of certain rights
of shareholders in listed companies
(c.d. Shareholders’ Rights Directive )
• Amended by
• Dir. 2014/59/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15
May 2014 establishing a framework for the recovery and resolution of credit
institutions and investment firms and amending Council Directive 82/891/EEC,
and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC,
2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010
and (EU) No 648/2012, of the European Parliament and of the Council
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dott. Giulia Gabassi• Transposed in Italy by
• DECRETO LEGISLATIVO 27 gennaio 2010, n. 27 Attuazione della
direttiva 2007/36/CE, relativa all'esercizio di alcuni diritti degli azionisti
di societa' quotate.
• Amended by
• DECRETO LEGISLATIVO 18 giugno 2012, n. 91 Modifiche ed integrazioni al decreto legislativo
27 gennaio 2010, n. 27, recante attuazione della direttiva 2007/36/CE, relativa all'esercizio di
alcuni diritti degli azionisti di societa' quotate
• CONSOB, Regolamento emittenti, adottato con delibera n.
11971 del 14 maggio 1999
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dott. Giulia Gabassi• DIRECTIVE (EU) 2017/828 OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL of 17 May 2017
amending Directive 2007/36/EC as regards the
encouragement of long-term shareholder
engagement (c.d. Shareholders’ Rights Directive II)
• DECRETO LEGISLATIVO 10 maggio 2019 n. 49 (in Gazz. Uff., 10
giugno 2019, n. 134). - Attuazione della direttiva 2017/828 del
Parlamento europeo e del Consiglio, del 17 maggio 2017, che
modifica la direttiva 2007/36/CE per quanto riguarda
l'incoraggiamento dell'impegno a lungo termine degli
azionisti.
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dott. Giulia GabassiDECRETO LEGISLATIVO 10 maggio 2019, n. 49
Attuazione della direttiva 2017/828 del Parlamento europeo e del
Consiglio, del 17 maggio 2017, che modifica la direttiva 2007/36/CE per
quanto riguarda l'incoraggiamento dell'impegno a lungo termine degli
azionisti.
DECRETO LEGISLATIVO 14 luglio 2020, n. 84
Attuazione dell'articolo 7 della legge 4 ottobre 2019, n. 117, per quanto
riguarda l'incoraggiamento dell'impegno a lungo termine degli azionisti e
la disciplina del sistema di governo societario.
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dott. Giulia GabassiDIR. 2007/36/EC Whereas:
• (1)… new tailored initiatives should be taken with a view to enhancing
shareholders’ rights in listed companies and that problems relating to
crossborder voting should be solved as a matter of urgency
• (2) intention to strengthen shareholders’ rights, in particular through the
extension of the rules on transparency, proxy voting rights, the possibility of
participating in general meetings via electronic means and ensuring that
cross-border voting rights are able to be exercised
• (3) Holders of shares carrying voting rights should be able to exercise those
rights given that they are reflected in the price that has to be paid at the
acquisition of the shares. Furthermore, effective shareholder control is a
prerequisite to sound corporate governance and should, therefore, be
facilitated and encouraged. It is therefore necessary to adopt measures to
approximate the laws of the Member States to this end. Obstacles which deter
shareholders from voting, such as making the exercise of voting rights subject
to the blocking of shares during a certain period before the general meeting,
should be removed. However, this Directive does not affect existing
Community legislation on units issued by collective investment undertakings or
on units acquired or disposed of in such undertakings.
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dott. Giulia GabassiDIR. 2007/36/EC Whereas:
• (5) Significant proportions of shares in listed companies are held by
shareholders who do not reside in the Member State in which the
company has its registered office. Non-resident shareholders should be
able to exercise their rights in relation to the general meeting as easily
as shareholders who reside in the Member State in which the company
has its registered office. This requires that existing obstacles which
hinder the access of non-resident shareholders to the information
relevant to the general meeting and the exercise of voting rights without
physically attending the general meeting be removed. The removal of
these obstacles should also benefit resident shareholders who do not or
cannot attend the general meeting
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dott. Giulia GabassiDIR. 2007/36/EC Whereas:
• (6) … All shareholders should have sufficient time to consider the documents
intended to be submitted to the general meeting and determine how they will vote
their shares. To this end, timely notice should be given of the general meeting, and
shareholders should be provided with the complete information intended to be
submitted to the general meeting…
• (7) …Shareholders should, in principle, have the possibility to put items on the agenda
of the general meeting and to table draft resolutions for items on the agenda…
• (8) Every shareholder should, in principle, have the possibility to ask questions related
to items on the agenda of the general meeting and to have them answered…
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dott. Giulia GabassiDIR. 2007/36/EC Whereas:
• (9) Companies should face no legal obstacles in offering
to their shareholders any means of electronic
participation in the general meeting. Voting without
attending the general meeting in person, whether by
correspondence or by electronic means, should not be
subject to constraints other than those necessary for
the verification of identity and the security of electronic
communications…
• (10) Good corporate governance requires a smooth and
effective process of proxy voting…But good corporate
governance also requires adequate safeguards against
a possible abuse of proxy voting…
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dott. Giulia GabassiYou can also read
