EUROPEAN COMPANY LAW

Member state through treaties gives up a part of their sovereignty, but with limits.

Italian legislation is influenced by the EU legislation because EU has power to create pieces of legislation
regarding some aspect of company law but we cannot find all complete discipline of company law in EU.

Principle of conferral : Principle of subsidiarity : Principle of proportionality :

EU shall act only on limits of In those areas where the EU has The actions of EU cannot exceed
competences conferred upon it. no full competence shall act only if what is necessary to achieve the
can help the member state object.
country.

There are 4 ways of regulation European law:

1) Treaty TEU: Treaty on European Union

Art.117 Italian Constitution: the legislative power is given to the country

and regions within the limits of the constitution and within the boundaries
of international obligations.

TFUE: Treaty on the functioning of the European Union

Article 49 TFUE —> The basic rule is: restriction on the freedom of
establishment of nationals of a member state in the territory of another
member state shall be prohibited. This prohibition shall also apply to
restriction on the setting up of agencies, branches or subsidiaries by
nationals of any member state established in the territory of any
member state.

Article 54 —> 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 be treated in the
same way as natural persons who are nationals of member states.

2) Regulations

Regulation is legislative act that is binding and immediately applicable and

applied across the eu. Imagine regulation as it were national pieces of regulation

3) Directives

With directive we have legislative act that sets out goal that are binding in eu
and all the eu countries must achieve goals written in directive but there is a
larger freedom of single member state in order to decide how concretely
achieve those goals.

4) Decisions Binding only to whom it is addressed

 RIGHT OF ESTABLISHMENT:

Real seat theory Incorporation theory

Centre of administration: you apply to Law of member state in which the

the company the law fo the state in company was incorporated, was created.
which the company has the centre of
administration or the basic interest.

Primary establishment: right to set up and manage companies in any member state,
under the same condition laid down for their own nationals.

Secondary establishment: right of company to set up agencies, branches or

subsidiaries in any members state, under same condition laid down for their own
nationals.

When national court should apply national legislation but has doubt if the national
rule they should apply is compatible or not with European legislation, an
INTERPRETATION should be made by the court of justice in order to have legal
certainty of uniform application of European law.

Circulation of shares - acquisition of its own shares

Company can purchase its own shares only up to amount of profits available and
available reserves. And can only purchase shares entirely paid up. We also need
authorisation of shareholders meeting that says maximum amount of shares that can
be purchased, a time limit, and a minimum and max share price.

For public listed companies, the shares that can be acquired by company itself
cannot represent more than 1/5 of the capital.

In GROUPS there is a prohibition of reciprocal subscription of shares between the

parent company and its subsidiary.
UNIFORM MODELS

We have 3 uniform models:

1) European economic interest grouping * similar to S.A.P.A. *

Contract among the members with official address (sede legale).

Official address should be in same place in which the real seat is located and cannot move to
another member state after declaration.
Management is organized in two organs: members and management organ.
No purpose to make profits for itself, the basic purpose is to facilitate economic activities for
the members.
There is a legal capacity of the grouping, but also members have a liability for the debts of
the company which can ended up in Beneficium Excussionis.
Cessation of participation: -Circulation -Death -Withdrawal right -Exclusion
Winding up: -Cease to be existence -Agreement -Impossibility to achieve a purpose

2) European company (societas Europaea) (SE)

Formation: by merger, by creating an holding, by creating a subsidiary or by conversion.

It must observe a large capital requirement, because operates at European levels, and
regulation like registering the office in the member state where the head office is.
Structure: Two Tier System or One Tier System
The members of organs are appointed every 6 years and they’re liable for their branch of
duties.

3) European cooperative society (SCE)

Rules that govern are to SE - Has not the profit purpose but mutual benefit purpose

Variable capital: capital not fixed but can change (not need amendment) in order to add new
members and to have the capital increased.