Nordisk Tidsskrift for Selskabsret

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Nordisk Tidsskrift for Selskabsret behandler aktuelle juridiske og økonomiske emner af betydning for selskabsretten; herunder også konkurrenceret, skatteret, regnskab og revision.

Udkommer 4 gange om året.

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Directfinancial supervision includes powers to investigate the supervised firm or entity fully; to conduct on-site inspections; to address sanctions such as fines, periodic penalty payments, and other administrative sanctions; and to have full mandate to enforce applicable legal requirements. In the EU, such powers were long only at Member States’ disposal to confer on competent national authorities in the field of financial market supervision. Since the financial crisis of 2007-2008, a new system of financial supervision has been established at the Union level. It partly includes direct financial supervision, and the powers have increased over the years since the crisis. The development has been part of the regulatory tightening of the EU financial markets since the financial crisis, driven mainly by the concern for financial stability.

Moving supervisory competence from Member State level to Union level brings forth several issues, such as constitutional aspects, coordination challenges, and efficiency of the conductance of supervision. Most importantly, perhaps, is the issue of reasons for direct EU financial supervision. Can financial stability justify a shift of competence from national to EU level in this field, and if so, to what extent? This article discusses the rationale of financial stability and its relation to direct financial supervision at the EU level.

Fodnoter

1

. Associate Professor in Private Law, Uppsala University (Docent i civilrätt, Uppsala universitet).

The article explores the historic and contemporary development of the EU supervisory framework in Anti-Money Laundering/Combating the Financing of Terrorism (AML/CTF). First, it makes the key argument that the development has an incremental or evolutionary nature where the operational capacity of the former 3L3 committees was gradually expanded in response to external shocks; such as the global financial crisis of 2007-2008. However, this development path has not allowed the ESAs to address a number of fundamental challenges in the area of AML/CTF. The article then analyzes the most important changes brought by the amending Regulation (EU) 2019/2175 to the intervention powers, governance arrangements and funding model of the ESAs. This includes the brand-new power to request a national competent authority to investigate possible breaches of Union law by a financial sector operator. On this basis, the article evaluates whether the amending Regulations in fact address the historic challenges of the EU supervisory framework in AML/CTF.

Thearticlepresents a concluding remark in relation to the following articles: 1. Initial Coin Offerings – Are tokens transferable securities?, 2. The ESAs’ Union Strategic Supervisory Priorities: A new effective tool to promote supervisory convergence in Europe?, 3. The New Role of the European Banking Authority in AML/CTF: Strong Agency Powers and Sectoral Legislation Without Direct Effect?, 4. The principles guiding the ECB’s enforcement and sanctioning powers, and 5. Direct financial supervision in the EU and financial stability published in this and the previous issue of NTS regarding the enforcement of the Single Rulebook.

Fodnoter

1

. Associate Professor, CBS LAW, Copenhagen Business School.

2

. Associate Professor, University of Southern Denmark.

Theboard of directors and management of Norwegian companies may be held personally liable for failure to warn creditors of a company`s financial difficulties per the Norwegian

Limited Liability Companies Act Section 17-1. The question of liability will typically arise in a bankruptcy situation, where the company is not able to fulfil its obligations to creditors. The subject matter of the article is what degree of financial difficulties should trigger this obligation to warn creditors.

The Norwegian Supreme Court has in its latest verdict on the topic (HR 2017-2375-A Ulvesund) stated that directors’ liability towards creditors does not necessarily correspond to the liability of the companies themselves. According to the verdict, the directors can in certain situations refrain from warning creditors, even after the company has become insolvent. The company, on the other hand, has an obligation to warn creditors from the point of insolvency.

The article discusses the legal basis for this threshold in relation to previous case-law and especially the obligation in the Norwegian Limited Liability Companies Act Section 3-4. The latter entails an obligation for the board of directors to ensure that the company at all times has equity and liquidity which is sufficient based on the risk and extent of its operations. The conclusion of the article is that the Ulvesund-verdict represents a step too far in disregard of the interests of the creditors.  

Fodnoter

1

. Advokat/partner Henning Rosenlund Wahlen, Advokatfirmaet Selmer AS

Forfatter:

InJune 2021 the Danish FSA published an update of the guideline »Hvornår skal en udsteder offentliggøre oplysninger i finansielle rapporter som intern viden?«. The purpose is to set guidelines for issuers admitted to trading, as to when an information, received during the preparation of the issuers financial reports, may constitute inside information and thus shall be disclosed as soon as possible in accordance with the Market Abuse Regulation (MAR) art. 17. The FSA´s interpretation of changes to an issuer´s financial outlook may be problematic, as the interpretation expressed in the guideline could lead to information, which would be likely to have a significant effect on the prices, not being disclosed to the market. Accordingly, it is a possibility that the guideline does not aid to protect the market integrity and protect the public confidence in the markets.

Fodnoter

1

. Regulatory Compliance Analyst, Nasdaq Copenhagen.

2

. VEJ nr. 9449 af 14/06/2021, »Hvornår skal en udsteder offentliggøre oplysninger i finansielle rapporter som intern viden?«.

3

. Europa-Parlamentets og Rådets forordning (EU) nr. 596/2014 af 16. april 2014 om markedsmisbrug.

Forfatter:

This article discusses the EU proposal for a new Directive on Corporate Sustainable Due Diligence that was made public in February 2022. It reviews the content of the new draft Directive compared with the two previous separate initiatives on due diligence and directors’ duties that constitute its base. Parallel, the article highlights problems that still remain, particularly regarding the corporate governance part. Finally, the article discusses the reactions that the draft Directive has so far given rise to. The article is a follow-up to a previous article; ‘EU and Sustainable Corporate Governance’, that was published in NTS no.3 2021 and which reviews the earlier EU proposal on directors’ duties in greater detail.

In both financial law and company law, how we should treat security tokens in relation to initial coin offerings is potentially problematic. This paper examines the legal qualification of security tokens in financial law and the derived consequences it should have for the treatment of security tokens in company law. Through an analysis of the applied approaches in the US and the EU it is argued that both jurisdictions prioritise function over form in the assessment of tokens. This leads to the conclusion that within the EU, security tokens are covered by the definition of transferable securities in Article 4(1)(44) of Directive 2014/65/EU. It is further concluded that this legal qualification should in most cases be applied within company law as the difference between transferable securities and company shares and other financing instruments available to the company is insignificant. Finally, it is recommended that the supervisory authorities in the EU centralise their activities to a higher degree in order to achieve greater harmonisation across Member States.

 

  • Professor, dr.jur., dr. h.c. Paul Krüger Andersen (ansvarshavende), University of Aarhus
  • Professor, dr.jur. Jesper Lau Hansen, University of Copenhagen, Denmark
  • Adj. professor, ekon.lic. Rolf Skog, Justitiedepartementet, Sweden
  • Professor, dr.juris Tore Bråthen, Handelshøyskolen, Norway Associate
  • Professor Andri Fannar Bergþórsson, dr. juris, Reykjavik University Menntavegur, Iceland
  • Professor Matti Sillanpää, dr. juris, Turku School of Economics, Finland LLM Erik Lidman, Handelshögskolan i Göteborg, Sweden.
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  • Udvid