Normes d’encadrement | Page 2

Belle synthèse et réflexion que partage Jospeh Liptrap sur la mise en place d’un modèle d’entreprise sociale à l’échelle européenne : « European Parliament Recommends Creating EU-Wide Social Entreprise Legal Status -A Misstep? ». Ce texte est disponible sur l’Oxford Business Law Blog.

Extrait :

Compared with previous vertical attempts to bore through Member States’ “armour of sovereignty” by introducing supranational organisational forms, the Parliament’s suggested solution represents a cautious departure in approach. Exacerbated by the implications of Brexit, this may stem from a climate of general hostility to new initiatives in areas where there have been calls for redistributing matters dealt with by the EU back to Member States. Similar to the Societas Unius Personae directive following the failure of the European private company project, the proposal would take the shape of a directive introducing partially harmonised rules. It would only concentrate on the “core” elements of social enterprises, leaving other aspects of regulation to the national law of each Member State. The legal status would be voluntarily conferrable on any private law entity. To be eligible, an interested firm would be required to include within its articles of association certain express provisions:

1. it must have a social purpose;
2. it must engage in a socially useful activity (e.g. work integration to combat labour market exclusion);
3. it must be subject to at least a partial constraint on profit distribution and have specific rules on the allocation of profits, with some profits made reinvested to achieve its social purpose;
4. its governance model must democratically involve stakeholders affected by its activities; and
5. it must incur extra reporting obligations.

The “European Social Enterprise” (ESE) legal status would be valid and recognised in all Member States, also extending to a certification label for social enterprises’ products.

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Le 7 mars 2019, ecoDa a pris position sur le devoir de loyauté des administrateurs : « ecoDa’s position paper on Directors Duties »

Extrait :

ecoDa supports the fundamental concept of Corporate purpose. However the European Commission should propose policy principles and refrains from trying to standardize directors’ duties among Member States and sectors. ecoDa believes that soft law through Corporate Governance codes is more suitable to adapt to an evolving context.

Acknowledging that shareholders define the company’s purpose does not mean neither that the interests of other stakeholders should not be taken into account by the directors when fulfilling their duties towards the company. On the contrary, there is no doubt that boards are taking such interests into account to an extent deemed consistent with the company’s purpose. Basically, there is a sound business case for more social and environmental involvement. Understanding consumers’ expectations and employees’ aspiration is becoming a prerequisite to become more innovative, to attract the right talents and to ensure sustainability in the long run. It is obvious that companies cannot be run in a sustainable manner if boards ignore the context in which they operate.

Therefore, the European Commission should refrain from trying to harmonize the fundamental concept of corporate interest and directors’ duties due to the very important legal differences across Europe and the different contexts across sectors. No law should hold directors accountable to several “principals”, arguably with often mutually contradictory interests. The board can solely be accountable to the company for the discharge of its duty to promote the purpose of the company. If the criteria for liability are not clearly defined, the boards will be liable to nobody for nothing or to everybody for anything. “Being liable to everybody means being liable to nobody”. Legal certainty is the basis of a competitive economic environment.

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Bonjour à toutes et à tous, l’ESMA vient de publier la réponse à sa consultation sur l’intégration des risques et des facteurs de durabilité (ici).

The European Securities and Markets Authority (ESMA) has published the responses received to its Consultations on integrating sustainability risks and factors in MiFID II, and in the UCITS Directive/AIFMD.

Pour accéder aux documents de réponse :

• Consultation on integrating sustainability risks and factors in MiFID II
• Consultation on integrating sustainability risks and factors in the UCITS Directive and AIFMD

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Alors que la fiscalité des GAFA soulève de nombreuses discussions (discussions qui montrent que la RSE est loin d’avoir intégrée un volet fiscalité !), voici une nouvelle qui se doit d’être relayée : « EU Commission pushes plan to tax internet companies » (euobserver, 3 janvier 2019).

The European Commission is pushing ahead with plans to end unanimity on tax, asking member states to respond before 17 January to a consultation on producing a plan of action in the first quarter of 2019, reports the Irish Times. EU countries have so far failed to agree on a joint digital sales tax on multinational internet giants, as individual states plan national taxes on such companies.

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Ivan

L’EMCA (un groupe d’experts de haut niveau en droit des sociétés) vient de rendre publique sur le site SSRN son modèle de droit des sociétés par actions à l’échelle européenne : « European Model Company Act (EMCA) ». Ce document d’harmonisation est très intéressant et propose des solutions pertinentes, tout en proposant un bilan de la position des différents États sur leur droit des sociétés.

While harmonization or convergence of European Company Law can be achieved by a toolbox of measures, until now the tools have been confined largely to Regulations, Directives, Recommendations and Corporate Governance Codes. It is submitted that there is a need to provide new measures to develop future European company law and that a European Model Act (EMCA) would be a useful tool for European integration in this area. The objective of the EMCA project thus is to establish, on a solid scientific foundation, a new way forward in European company law inspired by the US Model Business Corporation Act (MBCA).

The EMCA is designed as a free-standing general company statute that can be enacted by Member States either substantially in its entirety or by the adoption of selected provisions.

This approach differs from previous European company law initiatives, as it is a general settlement of the debate on which of the two regulatory approaches is superior – regulatory competition or harmonization. The EMCA offers the Member States a harmonized company law, but leaves it to each Member State to decide whether it will offer its businesses the advantages given by harmonization. The major benefit from an integrated company law framework is that it establishes similar conditions for company shareholders and third parties all over the EU, thus facilitating cross-border investment and trading by ensuring shareholder rights and rebuilding investor confidence. The EMCA is not a mandatory harmonization instrument, as Member States are not bound to follow the Model Act. Thus the EMCA can promote regulatory competition, but can also act as a tool for a harmonization of, and convergence between, Member States’ company laws.

At the same time the EMCA allows for special local considerations and for experimentation with new or different ideas, as Member States are free to opt out of parts of the Model Act in order to implement national company law innovations.

The EMCA can be regarded as a tool for better regulation in the EU since it provides a coherent, dynamic and responsive European legislative framework. Member States can benefit from using the Model Act as a company law paradigm, as it will be a modern competitive Companies Act. Moreover, the project allows the EU Commission the opportunity to take part in, or to support, a continuous modernization of the Model Act, without forcing legislation on the Member States.

The EMCA may be viewed as a dynamic piece of legislation capable of being continuously developed in response to the changing environment and market conditions that modern businesses face. The EMCA may thus overcome some of the criticism of traditional inflexible law-making, as it will offer a more informal and organic convergence of European company law.

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Ivan Tchotourian

À la prochaine…

Ivan Tchotourian