Supranationale Rechtsformen und vertikaler Wettbewerb der Gesetzgeber im europäischen Gesellschaftsrecht Plädoyer für ein marktimitierendes Rechtsformangebot der EU
Jahrgang 76 (2012) / Heft 2, S. 276-315 (40)
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Supranational Legal Entities and Vertical Regulatory Competition in European Corporate Law The Case for Market-Mimicking EU Corporate Forms This article states the case for market-mimicking supranational corporate forms in Europe. It argues that the form and substance of European Union (EU) incorporation options, such as the Societas Europaea or the Societas Privata Europaea, depend on the extent to which there can be regulatory competition between the European Union Member States (horizontal competition), and between the EU and its Member States (vertical competition). At present, there is some passive horizontal competition, but there can be no proactive vertical regulatory competition in Europe. However, as the Canadian experience shows us, there might be temporary passive vertical competition causing Member States to copy certain features of supranational corporate forms which are perceived as better matching the preferences of those facing a decision on where to incorporate. Therefore, when offering corporate forms, the EU should mimic a functioning European corporate law market. It should adopt those rules which would prevail under such conditions. The concept of market-mimicking corporate forms adds a third, »diagonal« dimension to regulatory competition in European company law. It confronts Member States' regulators with the result of hypothetical proactive horizontal regulatory competition. If this result better matches the preferences of entrepreneurs, mere incentives to enter into passive competition will suffice for this result to prevail in national company laws. When drafting such rules European regulators can seek guidance from over 35 years of economic analysis of corporate law. Examples of such analysis can be found in respect of Delaware's General Corporation Law.