The European Model Company Act – the collective wisdom for further legal harmonisation
Since European court cases such as Centros, Überseering, Inspire Art and Cartesio, it is clear that differences between the fundamental principles of the different European company law regimes entail a key obstacle to the free movement of companies within the European Union. Are there any alternative solutions?

In the past decades, the European Union has made various attempts to dismantle such obstacles by ensuring harmonisation in the field of company law and by providing means to companies to exercise their right to the freedom of establishment. Among these attempts was the enactment of various European company law directives as well as the cross-border merger directive.

 

However, whilst company law directives provided for harmonisation in certain particular areas of company law, they could not overcome the differences between the fundamental principles of European company law regimes. Therefore, the rather complicated cross-border merger of companies remained the only effective way to migrate a company from one EU Member State into another without having to dissolve and re-establish the company. Accordingly, a more intensive, fundamental harmonisation of the various European company law regimes appeared to be desirable.

 

In September 2015, the European Model Company Act (EMCA) Group presented the draft of the EMCA, a model set of company law provisions constituting a comprehensive company law regime. The EMCA Group consists of prominent company law scholars from 22 Member States and was formed at a meeting at Aarhus University in September 2007.

 

The aim of the EMCA Group was to provide European legislators with a comprehensive and uniform company law regime on the basis of input from multiple jurisdictions, which these legislators can adopt partially or entirely on a voluntary basis thereby further stimulating European harmonisation in the field of company law. Accordingly, since the EMCA is not mandatory, its effects on harmonisation are very likely to be indirect only in that the EMCA and the working materials of the EMCA Group may provide a valuable source of knowledge and a common discussion point for national and supranational legislators in the field of company law.

 


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