Chapter 3: From the Limits of the EC Company Law Harmonization Programme to the ‘Limited Supranationality’ in the SE
Along with the Directives aimed at approximating national company laws, the Community’s legislative effort in this area has resulted in the European legal forms recently introduced, the SE and the SCE. This chapter will, however, demonstrate with particular regard to the SE (the main legal instrument) that, from the company law viewpoint, they evidence strong limitations in respect of their objectives, which, together with some envisaged developments, have far-reaching implications on the legal competition between Member States. 3.1 REVIEW OF THE RESULTS OF THE COMPANY LAW HARMONIZATION PROGRAMME AND ENVISAGED DEVELOPMENTS The literature identified two substantial limits in the company law harmonization programme consisting of the Directives introduced from 1968 to 1989:1 (a) the differences which the programme has allowed to remain between the company laws of Member States are significant; (b) the range of companies affected, which has been influenced by compromise and by the choices granted to Member States, turns out to be narrow in relation to the economic reality of businesses within the EC. A key reason lies behind both limits: the existence as between Member States of deep-rooted differences about the conception of the role of company law, which has caused the Directives to be fitted into existing structures rather than to induce fundamental structural changes in national legal systems.2 The first limit has resulted, with regard to the first two Directives, characterized by an apparently prescriptive nature, from the fact that Member States used the derogations allowed by the Directives, interpreted the Directives’ provisions...
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