Academic journal article Chicago Journal of International Law

Issues in Transactions within Groups of Companies: A Greek and European Law Perspective

Academic journal article Chicago Journal of International Law

Issues in Transactions within Groups of Companies: A Greek and European Law Perspective

Article excerpt

The meaning of the terms "group of companies" and "affiliated companies"1 is not defined by Greek law in a uniform way, but by a variety of provisions that serve different purposes. There are several regulatory frameworks in which one can find a definition of the notion "groups of companies," such as consolidated accounts and transfer pricing.2 Business transactions may result in the creation of several types of groups of companies; this leads to the development of a uniform language among practitioners and law specialists. The creation of the groups can stem from a merger, a takeover, or a deliberate segmentation of a company into parts whose business is carried on by separate organizational (management) and legal entities.3

The common characteristic of all provisions related to companies limited by shares is the strengthening and completion of the legal provisions in force, by virtue of which the legislator opts to provide protection to several groups of persons (stakeholders). They include (a) the persons who do business with companies, especially creditors; (b) employees; and (c) shareholders. Regulation of transactions between companies belonging to the same group also achieves, or hopes to achieve, a significant reduction in income tax avoidance. Traditional legislation has proved inadequate to treat effectively problems arising from transactions that take place within groups of companies.

Before addressing traditional Greek legislation and recent European Union ("EU") directives regulating groups of companies, it will be helpful to define such groups more precisely. An acceptable identifying characteristic of groups of companies could be that a company is in a position to control the administration and management of one or more other companies, with which it comprises a group. A group may exist on either a permanent or temporary basis, even by virtue of a single transaction, especially if the control results in a detriment to the other members of the group. This situation amounts to a relation of dependence of the latter companies on the controlling one. This phenomenon occurs either when one company controls another directly or indirectly through a parentsubsidiary relationship, or when companies of equal standing are run under the same administration, in which case there is also a relation of dependence. However, dependence in the sense of the de facto ability to control a different company's administration on a permanent or temporary basis does not always presuppose the existence of a group of companies, since dependence is a broader term than the term group of companies. As a result, it is imperative to monitor transactions within groups of companies wherever there is a relation of dependence, without focusing on whether we stand before a financial conglomerate or not.

A traditional subject matter falling under the general heading of our Article is related to the Greek and European legislators' reaction towards the negative consequences and unfair practices in which intragroup transactions may result. Such transactions may result in detriment to shareholders, employees, and creditors, as well as of the state's interests regarding taxation policies. Currently, these considerations are not fully addressed by the traditional legal regime in Greece; as a result, discussion is still in progress.

At an EU level, the recent legislative initiatives-in particular Directive 2002/87/EC on the supplementary supervision of credit institutions, insurance undertakings, and investment firms in a financial conglomerate-seek to introduce specific prudential legislation for financial conglomerates. These directives also take the first steps to align the legislation on the European level with national laws concerning financial groups and financial conglomerates in the same sector, thus ensuring a minimum level of equal treatment of these groups throughout the European Union. The main objective, however, of the new EU regime is to ensure that separate state regulators-who typically focus on one sector in order to ensure capital adequacy of the entities under their supervision-are not hindered because of the existence of cross-sector financial conglomerates. …

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