The new agreement regulating the future relations between the EU and the UK entered into force by 1 January 2021. The agreement aims to allow the UK to remain on the fringe of the internal market. The agreement provides for an extensive free movement of goods, however, the free movement it provides to companies is more limited. The article outlines which companies can benefit from the right to make investments (including establishments) and to provide services, and it outlines the protection given to these companies when they perform such activities. It points out where the free movement of companies is most clearly diminished and furthermore, some issues that are likely to attract attention in the years to come.
For a number of years, sustainable growth and green investments have been a priority on the European political agenda and the EU Commission has set out to make Europe the first climate- neutral continent in 2050. If the EU is to meet this ambitious target, it will take a huge effort from not only Member States but also private businesses and investors. Thus, the EU Commission has initiated an enabling framework for private investors and the public sector to facilitate sustainable investments. A key element in the green transformation is the 2020 Regulation on the establishment of a framework to facilitate sustainable investment (the sustainable taxonomy), which sets a standard for how to identify environmentally sustainable economic activities. Another key element is private entities’ disclosure on how and to what extent their activities are associated with economic activities that qualify as environmentally sustainable as well as financial market participants’ disclosure of sustainability-related information in regard to the financial products they design and offer. The 2019 Regulation on sustainability‐related disclosures in the financial services sector regulates the latter. First, this article gives an overview of the two frameworks in order to analyse the disclosure regimes set out for companies and financial market participants. Second, it applies the new obligations to existing legislative measures, such as MiFID II and sector regulation and discusses how the new obligations call for amendments to the existing frameworks. The article concludes that the new sustainability‐related obligations are rather comprehensive, and that compliance with the obligations are complicated by the fact that while many of the obligations apply from 10 March 2021 the detailed level two regulation is still not in place.
The purpose of the paper is to illustrate alternative preference share models, notably structures frequently used in private equity and venture capital, and analyze key corporate and financing law issues. The paper describes preference share models ranging from traditional dividend focused structures and defensive “subordinated debt” type structures to more aggressive structures protecting investors while also providing for an upside in case of success. It is explained what purposes the different models can serve. The paper further compares the models with certain pertinent issues in the Danish Companies Act. The majority requirements for issuing preference shares are discussed, and the author on this point challenges predominant views, which – according to the author – are based on an exceedingly rigid and undesirable application of the principle of equal treatment of shareholders. The paper finally goes through the requirements for redeeming preference shares.
Limited1companies that lack sufficient economic strength can assume the risks that come with contingent liabilities although it is not beneficial for the company. The phenomenon has been noted in the Nordic legal context for half a century, but without any further analysis. This first article (I) presents two analyses of the risks that follows with contingent liabilities. Both analyses show the legal relevance of risks a company takes when agreeing to a contingent liability for a reason that does not gain the company itself. The risk analyses form the basis for further analyses of the five Nordic regulations and of how the issue can be handled in legal argumentation. Those further analyses are presented in a second article (II).
In12019 the Danish Minister for Industry, Business and Financial Affairs appointed a group of experts to assess how to ensure – to a greater extent than hitherto – that the management of a financial business can be held liable for damages and criminal offences. The group has now reached the conclusion that the measures already taken in respect of regulatory framework have ensured that liability already has been tightened compared to before and during the financial crisis. Therefore, the group proposes only few further measures. The author is sceptical about the group’s presumptions and therefore recommends further measures to tighten liability for damages, including to introduce professional liability and, in some cases, to reverse the burden of proof.
. Forfatteren har indtil udgangen af 2016 som partner i advokatfirmaet Kromann Reumert været involveret i ledelsesansvarssagerne på vegne af Finansiel Stabilitet. Arbejdet har især omfattet udarbejdelse af flere advokatundersøgelser samt processen mod ledelsesmedlemmer i Capinordic Bank i Østre Landsret.
The Danish Disciplinary Board on Auditors (in Danish ‘Revisornævnet’) is a court-like disciplinary board for approved auditors – for lawyers, much similar to the Disciplinary Board of the Danish Bar and Law Society (in Danish ‘Advokatnævnet’). The Disciplinary Board on Auditors gives many rulings, and some of these rulings are concerned with company law matters. This article deals with company law rulings from the Disciplinary Board on Auditors in 2020. The purpose with the article is partly to call the attention of auditors, lawyers and jurists as well as other dealing with company law to these specific rulings, partly – and generally – to point out that not only the courts and the Danish Commerce and Companies Appeals Board (in Danish ‘Erhvervsankenævnet) but also the Disciplinary Board on Auditors regularly gives rulings of relevance to company law. The Disciplinary Board on Auditors has the competence to deal with complaints regarding company law matters in two ways. Firstly, the Disciplinary Board on Auditors can deal with complaints regarding auditor reports regarding company law matters. Secondly, the Disciplinary Board on Auditors can deal with complaints regarding management liability information in auditor reports on, e.g., annual reports as a result of breaches of, e.g., the company law rules. On the other hand, the Disciplinary Board on Auditors cannot deal with complaints regarding company law matters if the specific engagement is not an assurance engagement – i.e., a mere advisory engagement.
In 2020, there were both judgments interpreting the company law directives, including the Takeover Directive and – for the first time – the former Sixth Company Law Directive on divisions. As always, there were several judgments addressing the free movement of companies. This includes a case which safeguards the freedom to provide services by companies from WTO Member States that are not EU/EEA members, thereby potentially opening for a new dimension of the free movement of companies: a genuine Delaware effect.