E pluribus unum? Language diversity and the harmonization of company law in the European Union
| Author | Federico M Mucciarelli |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| DOI | http://doi.org/10.1177/1023263X19871023 |
| Subject Matter | Articles |
Article
E pluribus unum? Language
diversity and the harmonization
of company law in
the European Union
Federico M Mucciarelli*
Abstract
This work addresses the impact of language diversity and nation-specific doctrinal structures on
harmonized company law in the EU. With this aim, two emblematic case studies will be analysed.
The first case study is related to the definition of ‘merger’ adopted in the Company Law
tice of the European Union (CJEU), it will be shown that scholars’ and courts’ conception of the
definition of ‘me rger’ varies acc ording to own domes tic doctrinal str uctures. The sec ond case
study is related to the notion of ‘registered office’, which is key for establishing the scope of
several harmonizing provisions and the freedom of establishment; this paper analyses termi-
nological fluctuations across language versions of EU legislation and the impact of domestic
taxonomies and legal debates upon the interpretation of these notions. These case studies show
that company law concepts, despite their highly technical nature, are influenced by discourse
constructions conducted within national interpretative communities, and by the language used to
draft statutory instruments and discuss legal issues. The task of the CJEU is to counterbalance
these local tendencies, and yet it is unlikely that doctrinal structures, rooted in national languages
and legal cultures, will disappear.
Keywords
Company law, EU law, legal harmonization, law and language, comparative law
* University of Modena & Reggio Emilia, Modena, Italy
Corresponding author:
Federico M Mucciarelli, Professor at University of Modena & Reggio Emilia, Department of Economics and CEFIN, Viale
Berengario 51, Modena, 41121, Italy.
E-mail: federicomaria.mucciarelli@unimore.it
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(5) 669–690
ªThe Author(s) 2019
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DOI: 10.1177/1023263X19871023
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1. Introduction
Over the last fifty years, the European Union has extensively tried to harmonize Member States’
company law regimes. Although relevant matters, such as director duties, are still entirely left to
Member States’ domestic rules, company law directives cover a broad spectrum of topics, such as
companies’ formation, their financial structure, their accounts, and significant corporate transac-
tions, such as capital amendments, mergers and divisions.
1
The main policy goal of these harmo-
nizing directives is to repeal restrictions to freedom of establishment
2
and approximating Member
States’ laws with the aim of creating a single market.
3
The underlying assumption of this effort is
1. First Council Directive 68/151/EEC of 9 March 1968 on co-ordination of safeguards which, for the protection of the
interests of members and others, are required by Member States of companies within the meaning of the second
paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community,
[1968] OJ L65, repealed by Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009
on coordination of safeguards which, for the protection of the interests of members and others, are required by Member
States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such
safeguards equivalent, [2009] OJ L258; Second Council Directive 77/91/EEC of 13 December 1976 on coordination of
safeguards which, for the protection of the interests of members and others, are required by Member States of companies
within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited
liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equiv-
alent, [1977] OJ L 26, repealed by Directive 2012/30/EU of the European Parliament and of the Council of 25 October
2012 on coordination of safeguards which, for the protection of the interests of members and others, are required by
Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning
of the European Union, in respect of the formation of public limited liability companies and the maintenance and
alteration of their capital, with a view to making such safeguards equivalent, [2012] OJ L 315; Third Council Directive
78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning domestic mergers of public limited
liability companies, [1978] OJ L 295, repealed by Directive 2011/35/EU of the European Parliament and of the Council
of 5 April 2011 concerning mergers of public limited liability companies, [2011] OJ L 110; Fourth Council Directive
78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of com-
panies, [1978] OJ L 222; Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the
Treaty, concerning the division of public limited liability companies, [1982] OJ L 378; Seventh Council Directive
83/349/EEC of 13 June 1983 based on the Article 54(3)(g) of the Treaty on consolidated accounts, [1983] OJ L 193;
Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54(3)(g) of the Treaty on the approval of
persons responsible for carrying out the statutory audits of accounting documents, [1984] OJ L 126; Directive 2005/56/
EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability
companies, [2005] OJ L 310 (‘Cross-Border Merger Directive’); Eleventh Council Directive 89/666/EEC of 21
December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of
company governed by the law of another State, [1989] OJ L 395; Twelfth Council Company Law Directive 89/667/EEC
of 21 December 1989 on single-member private limited liability companies, [1989] OJ L 395; Directive 2004/25/EC of
the European Parliament and of the Council of 21 April 2004 on takeover bids, [2004] OJ L 142 (‘Takeover Directive’);
Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of
shareholders in listed companies (‘Shareholder Rights Directive’). Directive 68/151/EEC, Directive 77/91/EEC,
Directive 78/855/EEC, Directive 82/891/EEC, Directive 2005/56/EC and Directive 89/666/EEC have been replaced
with Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects
of company law (‘Directive 2017/1132’).
2. See Article 50(2)(g) of the Consolidated versions of the Treaty on the Functioning of the European Union (‘TFEU’),
[2008] OJ C 115 (formerly Article 44(2)(g) of the Treaty Establishing the European Community).
3. Article 26 TFEU: ‘1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the
internal market, in accordance with the relevant provisions of the Treaties; 2. The internal market shall comprise an area
without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance
with the provisions of the Treaties; 3. The Council, on a proposal from the Commission, shall determine the guidelines
and conditions necessary to ensure balanced progress in all the sectors concerned.’
670 Maastricht Journal of European and Comparative Law 26(5)
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