Does Europe still need a Fourteenth Company Law Directive?

Abstract

This paper explores the progression of European Law that may have pre-empted the introduction of the 14th Company Law Directive, a piece of European secondary legislation that has been under discussion for many years as an attempt to solve the problem of corporate mobility within the internal market. For so long indeed that it is conceivable that judgements of the ECJ and other primary and secondary legislation already in force have provided solutions to the corporate mobility question which will result in the Directive no longer being necessary. This article examines the complicated nature of company law particularly the interaction of international conflict provisions and the law of the European Internal Market. It considers the case law of the European Court of Justice (ECJ) in such judgements as Centros and Uberseering, seen by some as an ‘attack’ on the ‘real seat’ theory of corporate recognition. It moves on to identify primary and secondary legislation, focussing on the Statute for a European Company (SE) as potential ways forward for corporate mobility within the EU. Company law has a multi-layered persona, so within the confines of this paper only the concept of tax provisions and concerns over employee participation in the event of a change in applicable law will be considered. Finally, it will consider the draft 14th Company Law Directive,comparing it with the Statute for a European Company and involving a critique of articles 10 and 3 as potentially problematic for Member States and possibly providing a source of discontent that will make it less likely that the proposed Directive becomes adopted as legislation. The conclusion of the paper will draw on the arguments within the body of the text to propose that there is still an inherent need for the proposed directive in order to ensure the grant of a fundamental freedom.