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The EC Commission's Company Law Action Plan — A Proposal to Amend the 2nd EC Company Law Directive. Law Competition in a Globalizing World?

The privilege of a limited liability regime for companies is commonly considered a condition sine qua non for business entrepreneurs to undertake risk-carrying economic activities. This privilege should, however, be counterbalanced by sufficient safeguards for both company creditors and investors, i.e. company shareholders. Currently, this goal is served, on the basis of Article 44 (2) (g) of the EC Treaty, by, notably, the 2nd EC Council Directive 77/91 EEC of 13 December 1976 on the formation of public limited liability companies and the maintenance and alteration of their capital. From May 2003 onwards, the European Commission initiated the Company Law Action Plan on Company Law and Corporate Governance with a view to harmonizing various subject matter such as cross-border mergers, cross-border seat transfers, directors’ remuneration, the responsibility of board members, shareholders rights, and, last but certainly not least, the capital of (public) companies. ‘Fostering efficiency and competitiveness of business’ and ‘stimulating discussions between Member States on the modernization of company law’ are key expressions in the Plan. In respect of the proposal for a revised 2nd EC Company Law Directive, the Commission even speaks of ‘one of the most important modernizations of company law which should be executed in a short term’, further being suited to ‘updating and simplifying the Community Aquis’.