Droit européen des sociétés et gouvernance d'entreprise

The foundation stone of the development of European company law was laid in 1968 with the enactment of the ‘first company law directive’. Another eight directives and a regulation followed, but after 1989 development of the company-law acquis stagnated. A new impetus came in 2001 with the passing of the law on the European Company (Societas Europaea). During the same period a number of financial scandals (Enron, Worldcom) indicated a need for further action in the area of company law (corporate governance). The Commission reacted to these scandals with the appointment of an expert group (the ‘Winter group’) tasked with drawing up modernisation measures in the field of company law (corporate governance). The bulk of the Winter group’s proposals were adopted in the ‘Action Plan on the modernisation of company law and the improvement of corporate governance’, passed by the Commission in 2003. The Action Plan contained 24 measures in all, to be implemented over the next few years. Most of the measures announced as short-term in the Action Plan had been implemented by 2005.

When new Internal Market Commissioner McCreevy took office in 2005 the Commission decided to fundamentally review the whole Action Plan in respect of its continuing relevance and suitability. At the same time, new criteria for the decision-making process of the Commission were agreed upon, according to which all new proposals must be scrutinised with regard to their economic efficiency (!). In parallel with this the Commission adopted an initiative to simplify existing European regulations, including the different company-law directives. Against this background in 2005/2006 a public consultation procedure was conducted on further priorities in company law. Finally, a summary report on future priorities in the field of company law was presented in summer 2006. The main field of action according to the new priorities should have been enabling legislation, such as a 14th company law directive or anchoring the one-share/one-vote principle in European law. But Commissioner McCreevy switched the agenda with a speech presented before the European Parliament’s Legal Committee in October 2007, in which he announced that work on the 14th company law directive and the one-share/one-vote principle would cease, and set out as a new top priority the European Private Company (SPE).

In June 2008, the Commission launched a first proposal, which contained a number of serious shortcomings, especially in the area of worker participation. On 10 March 2009, the European Parliament adopted a report on the European Private Company (SPE) to complement the Commission’s proposal. It can be expected that the Swedish Presidency, in the second half of 2009, will launch a new proposal.

Despite the obvious relevance of company-law issues for workers’ interests the European Commission (DG Internal Market) has largely left them off its agenda. Instead, it has directed its attention – in accordance with the traditional corporate governance standpoint – to relations between company management and shareholders. This narrow view is hardly in keeping with the European Social Model as it found expression in the Lisbon Agenda. Rather workers’ interests – which, for example, in the form of board-level representation rights play a significant role in the company law of many member states – will have to find appropriate expression in the debate on European company law and corporate governance. This is due to the fact that no stakeholder group is more vitally affected by enterprise decision-making than the employees.