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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Forfatter: Davies

In12017 the European Union adopted amendments to the Shareholder Rights Directive enacted a decade earlier. Among the changes was a new Article 9c dealing with the topic of related party transactions (RPT). This paper analyses how that new provision has been implemented in a range of Member States and assesses its impact on the prior laws of those states.

Compared with the initial proposals of the European Commission, Article 9c as adopted was considerably watered down. Allegedly inspired by the related party provisions of the UK Listing Rules, those proposals mandated disclosure at the 1% level of significance (measured typically by the value of the company’s assets), accompanied by a fairness opinion, and approval by the independent shareholders (majority-of-the-minority (MOM)) at the 5% level). As enacted, MSS were given a choice of MOM or board approval and freedom to set the criterion for triggering the approval requirement. The same freedom as to trigger was accorded to the MSS in relation to disclosure and the requirement for a fairness opinion was dropped.

In consequence, MSS had a wide range of choices to make at the transposition stage. A major focus of this piece is an analysis of the choices actually made by the MSS (Part 3). This provides a basis for the assessment in Part 4 of the impact of Article 9c in moving the laws of the MSS towards a more demanding orientation. There are three main conclusions. First, the requirements of Article 9c for approval of RPT had limited impact. No MS which did not already have MOM adopted it in the transposition process. As for board approval, which was already widespread in the laws of the MSS, it is doubtful whether the transposition of the Article ensured the independence of the board members called upon to approve the transaction. Second, it is likely that the most important change required by the Article was public disclosure, even if shorn of the fairness opinion. The adverse impact of disclosure on the company’s share price is potentially capable of reducing the levels of wholly one-sided RPT. Public disclosure, although already required by the laws of some MSS, was not widespread.

Third, and more optimistic, there is evidence that the process of transposing Article 9c caused MSS to review their laws on RPT more generally and, in some MSS, this provided an opportunity for reformers to secure changes beyond those required by the Article itself. This might be termed the »catalysing« effect of transposition. The outcome in any particular MS turns on the balance of power between reformers and conservatives, but transposition gives reformers the opportunity to make a case which might otherwise not have been available to them.

Keywords: related party, approval, majority-of-the-minority, disclosure, materiality , Shareholder Rights Directive, harmonisation.

JEL classifications: H73, K22, Z18

Fodnoter

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.European Company Law Experts Group. The members of the group who contributed to this paper were: Paul Davies (Oxford & ECGI), Susan Emmenegger (Bern University), Guido Ferrarini (Genoa & ECGI), Klaus Hopt (Max Planck, Hamburg & ECGI), Adam Opalski (Warsaw), Alain Pietrancosta (Paris I & ECGI), Andrés Recalde (Autonomous University of Madrid), Markus Roth (Marburg & ECGI), Michael Schouten (Amsterdam), Rolf Skog (Gothenburg & ECGI), Martin Winner (Vienna University of Economics and Business), Eddy Wymeersch (Gent & ECGI).

Forfatter: Erik Sjöman

This article primarily addresses online general meetings and postal voting in Swedish listed companies. It does so in the form of remarks on a newly issued appendix to a book on general meetings written by Sven Unger. The article also addresses the temporary Swedish legislation on general meetings as a consequence of the covid-19 pandemic and new Swedish legislation on the prerequisites for participation in general meetings.

Ved årsskiftet træder nye regler i kraft, som vil gøre det ulovligt for medlemmer af ledelsen at lade sig udnævne uden faktisk at udøve det pågældende ledelseshverv. Tiltaget er et led i en større kontrolpakke, der tilsigter at imødegå svindel og skatteunddragelse, som bl.a. muliggøres ved stråmandsledelser. Artiklen viser, at allerede efter hidtil gældende ret kan stråmænd ifalde erstatningsansvar, blive pålagt konkurskarantæne og i visse situationer pålægges strafansvar. En analyse af de nye regler viser, at dette ansvar muligvis vil blive skærpet en smule, men at den væsentlige effekt af de nye regler er, at styrelsen får et grundlag for at imødegå stråmænd ved enten at nægte at registrere disse eller afregistrere dem. Definitionen af, hvornår en person er stråmand, er dog ikke særlig præcis, og det påpeges, at det kan give anledning til vigtige afgrænsningsspørgsmål i forskellige situationer, herunder i relation til tantebestyrelser, datterselskaber og delegation af ledelsesopgaver.

At the end of the year, new Danish rules requiring that a member of management actually conduct the management of the company will enter into force. These rules aim to prevent criminal activities including tax fraud, which inter alia is made possible by the use of so-called straw-men directors or nominee directors. In the article, it is shown that nominee directors according to the existing rules in Denmark are likely to incur either civil or sometimes even criminal liability as well as they may be disqualified. The likelihood of such consequences may increase slightly with the entering into force of the new rule, but overall, the main effect of the new rules will be that the Danish Business Authority will be authorised to deny the registration of such nominees or may deregister them. The definition of when management does not actually conduct the management is, however, far from easy to use, and it is shown that it may course problems, for instance in subsidiaries, when management duties are delegated or when family members are appointed to the board.

Forfatter: Jesper Seehausen

This article deals with the effect of the partial abolition of the ‘audit protocol’ (the ‘auditor’s records’ or the ‘long form audit report’), which is a result of the ‘new’ audit legislation, on auditors’ reporting to those charged with governance. Specifically, this partial abolition of the ‘audit protocol’ entails that, for Public-Interest Entities (PIEs), the auditor is still required to prepare an ‘audit protocol’ whereas, for non-PIEs, the auditor is no longer required to prepare an ‘audit protocol’. The main argument of the article is that it is indeed necessary to distinguish between PIEs and non-PIEs. However, not only for PIEs but also for non-PIEs, the auditor is still required to report to those charged with governance – the difference being that, for PIEs, the requirements are found in both the PIE Regulation and the International Standards on Auditing (ISAs) whereas, for non-PIEs, the requirements are only found in the ISAs. Thus, the fact that, for non-PIEs, the auditor is no longer required to prepare an ‘audit protocol’ does not mean that the auditor is no longer required to report to those charged with governance. However, the auditor’s reporting to those charged with governance does not have to be in an ‘audit protocol’ but can take other forms. In conclusion, the article argues that the partial abolition of the ‘audit protocol’ is one step forward but two steps back.

Most Member States have rules on disqualification and in 2019 the EU, for the first time, adopted rules in this area. The adopted rules regulate the functioning of existing national rules. This article examines the impact of the newly adopted rules and considers if and how rules on disqualification can be enforced. It is concluded that while the new legislation creates a certain degree of clarity in relation to the enforcement of national rules, much uncertainty still remains; for the Directive to truly succeed, it is to a great extent reliant on the Member States’ will to cooperate. However, an enforcement of rules is deemed possible both when the rules are first applied, typically at an insolvency, and at later attempts to appoint the director, usually in other Member States.

The article examines the competence of the Board of Directors in Danish listed companies in connection with takeover bids to allow for the amendment of warrant terms, e.g. to permit transfer or early exercise. It is thus examined whether the Board of Directors may allow a potential bidder to acquire or exercise warrants, otherwise subject to restrictions or prohibitions on transfer and exercise, and thus reach the threshold necessary to complete a takeover bid and subsequent compulsory redemption. Further, the article examines other actions that could possibly be taken by the Board of Directors to facilitate a takeover bid, and the interests that the Board of Directors should protect and take into consideration. In addition to considering the provisions of specific takeover-legislation, the article also addresses the protection of individual rights under Danish law, and the reluctance by Danish courts to limit especially ownership rights. It is thus concluded that the shareholders and not the Board of Directors should decide on the acceptance of a takeover bid, and that a bidder wishing to obtain a majority sufficient for carrying out compulsory resolution, must do so by obtaining necessary acceptance from shareholders and not through decisions made by the Board of Directors.

Forfatter: Tore Bråthen

The Norwegian regulation of Related Parties Transactions (RPT) has been developed through a total of five phases. The development startet with the EEA-adaption of the former Limited Liability Act of 1976 in 1995. Originally, a rule on «Nachgrundung» in public limited companies was enacted. The General Assembley had to approve specified agreements for them to be valid. The statutory provision largely coincided with the requirements of the EU’s Second Company Law Directive. With The Limited Companies Acts of 1997 the rule was significantly extended to include agreements on both limited companies’ and public limited companies’ acquisitions from shareholders as well as from natural and legal persons treated as shareholders. The provisions made exceptions for, amongst others, commercial agreements. Later the provision was extended to cover all types of agreements (acquisitions as well as disposals, etc.) with an expanding circle of natural and legal persons. Attempts were made to precisely define the exception for commercial agreements and additional exceptions were introduced. By amendments in 2019, the Public Limited Companies Act was adapted to the requirements of SRD II. For limited liability companies and for non-listed public limited companies substantial amendments were enacted. The number of agreements that should apply with the procedural rules was in reality significantly reduced, attempts were made to further specify the exception for commercial agreements, the necessary resolutions shall be made by the Board of Directors and not any longer by the General Assembley, and the invalidity rule was softended. The paper reviews the development of the Norwegian rules on RPTs and the circumstances leading to the various amendments of these rules. Furthermore, it includes an analysis of the new rules on RPTs applicable to limited companies and non-listed public limited companies.

 

  • 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.