Yearbook of European Law - Vol. 4

By A. Barav; D. A. Wyatt | Go to book overview

The Harmonization of Company Law in the
European Community*

JANET DINE

Few would doubt that the commercial success of the single European market depends to a considerable degree on the performance of companies.1 'The limited liability corporation is the greatest single discovery of modern times. Even steam and electicity are less important than the limited liability company.' 2


1. Nature of company law

Companies can only exist and perform within a legal framework. The importance of providing the right legal framework is therefore considerable. The first step to achieving this end is to discover the nature of company law. Two disparate approaches may be discerned. The first is that the importance of companies in the economic system makes them an important tool in social engineering. This approach is evidenced by detailed regulations aimed at protection of shareholders or public, or in the German and Dutch worker participation provisions. The opposing position is that company law should provide a simple enabling framework with the minimum of restrictions on entrepreneurial freedom consistent with the prevention of major injustices. These two opposing conceptions of company law must be further examined. If the conceptual basis for harmonization measures is not consistent with a philosophy of company law, the measures adopted would seem to have little chance of forming a commercially effective framework within which that immensely important entity, the company, will have to operate.


2. Is company law the correct medium for achieving social engineering?

One of the consequences of the central economic importance of the corporation is that 'from the perspective of the policy-maker the business

____________________
*
© Janet Dine, 1989, Lecturer at King's College, University of London.
1
For a discussion of the importance of companies see Dickerson, Howard, Getz, and Bertrand, Proposals for a New Business Corporations Law for Canada (Government of Canada No RG35-1-1971-1).
2
N. M. Butler, President of Columbia University, quoted by A. L. Diamond in Orhnial (Ed) Limited Liability and the Corporation ( 1982) 42; and see Sealy, Company Law and Commercial Reality ( Sweet & Maxwell 1984) 1.

-93-

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