L’EMCA (un groupe d’experts de haut niveau en droit des sociétés) vient de rendre publique sur le site SSRN son modèle de droit des sociétés par actions à l’échelle européenne : « European Model Company Act (EMCA) ». Ce document d’harmonisation est très intéressant et propose des solutions pertinentes, tout en proposant un bilan de la position des différents États sur leur droit des sociétés.
While harmonization or convergence of European Company Law can be achieved by a toolbox of measures, until now the tools have been confined largely to Regulations, Directives, Recommendations and Corporate Governance Codes. It is submitted that there is a need to provide new measures to develop future European company law and that a European Model Act (EMCA) would be a useful tool for European integration in this area. The objective of the EMCA project thus is to establish, on a solid scientific foundation, a new way forward in European company law inspired by the US Model Business Corporation Act (MBCA).
The EMCA is designed as a free-standing general company statute that can be enacted by Member States either substantially in its entirety or by the adoption of selected provisions.
This approach differs from previous European company law initiatives, as it is a general settlement of the debate on which of the two regulatory approaches is superior – regulatory competition or harmonization. The EMCA offers the Member States a harmonized company law, but leaves it to each Member State to decide whether it will offer its businesses the advantages given by harmonization. The major benefit from an integrated company law framework is that it establishes similar conditions for company shareholders and third parties all over the EU, thus facilitating cross-border investment and trading by ensuring shareholder rights and rebuilding investor confidence. The EMCA is not a mandatory harmonization instrument, as Member States are not bound to follow the Model Act. Thus the EMCA can promote regulatory competition, but can also act as a tool for a harmonization of, and convergence between, Member States’ company laws.
At the same time the EMCA allows for special local considerations and for experimentation with new or different ideas, as Member States are free to opt out of parts of the Model Act in order to implement national company law innovations.
The EMCA can be regarded as a tool for better regulation in the EU since it provides a coherent, dynamic and responsive European legislative framework. Member States can benefit from using the Model Act as a company law paradigm, as it will be a modern competitive Companies Act. Moreover, the project allows the EU Commission the opportunity to take part in, or to support, a continuous modernization of the Model Act, without forcing legislation on the Member States.
The EMCA may be viewed as a dynamic piece of legislation capable of being continuously developed in response to the changing environment and market conditions that modern businesses face. The EMCA may thus overcome some of the criticism of traditional inflexible law-making, as it will offer a more informal and organic convergence of European company law.
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Ce contenu a été mis à jour le 9 mars 2018 à 14 h 23 min.