MAPPING DIRECTORS’ DUTIES: STRATEGIES AND TRENDS IN THE EU

Carsten Gerner-Beuerle & Edmund-Philipp Schuster

1.Introduction

As corporate mobility in Europe continues to be on the rise and exert an impact on the European corporate landscape by allowing regulatory arbitrage as well as by influencing legislators,1 the importance of highlighting similarities of, as well as differences between, European company laws will increase. This chapter seeks to provide an overview of one aspect of company law – the design and enforcement of directors’ duties – across Europe.

The data reported here derive from a study on this topic prepared for the European Commission in 2012.2 A few cautionary remarks are in order before one embarks on a journey through a core area of company law across a large and diverse group of jurisdictions, each with its own legal and economic background and history such as the EU Member States. The present analysis is based on our interpretation of the various national sources gathered by us for the study mentioned above. We do not, of course, pretend to have come even close to understanding all (or, for that matter, any) of the company law systems and their regulation of directors’ duties in their entirety, and we are well aware of the fact that we – as everyone doing comparative legal work – are necessarily influenced by the legal systems we know and understand best. Thus, our account of the legal systems described is bound to be inaccurate in some respects and biased in others. Furthermore, the relatively narrow focus of our analysis also bears the risk of overlooking some of the functional complements and crossdoctrinal interdependencies that exist in different jurisdictions. While we have tried to address this problem, inter alia, by interviewing expert practitioners as well as scholars in the relevant jurisdictions, it would be presumptuous to think that we have come close to obtaining a complete picture of the complex interactions between the different legal rules and legal and extra-legal institutions in the jurisdictions we focus on.

Nevertheless, our discussions with national experts from the relevant jurisdictions, who have generously devoted much of their time to explaining their national legal systems and the functioning of the rules in the areas relevant to our questions, provide us with a level of confidence that our

“mapping” of the law may create, overall, a useful starting point for a discussion of directors’ duties in Europe.

This chapter is based on Carsten Gerner-Beuerle, Philipp Paech and Edmund-Philipp Schuster, Directors’ Duties and Liabilities in Europe – Final Report, see infra n 2. We are indebted to the many experts who contributed to the study for providing us with information about their national legal systems and for clarifying many open questions in relation to the application of national laws. All remaining errors are our own.

1See e.g. John Armour, Who should make corporate law? EC legislation versus regulatory competition, 58 Current Legal Problems 369 (2005); Luca Enriques and Martin Gelter, Regulatory Competition in European Company Law and Creditor Protection, 7 European Business Organization Law Review 417 (2006); Martin Gelter, The Structure of Regulatory Competition in European Corporate Law, 5 Journal of Corporate Law Studies 247 (2005); John Armour and Georg Ringe, European Company Law 1999-2010: Renaissance and Crisis, 48 Common Market Law Review 125 (2011).

2See Carsten Gerner-Beuerle, Philipp Paech and Edmund-Philipp Schuster, Directors’ Duties and Liabilities in

Europe – Final Report, (#.#.2013) available at <www.europa.ec\[REFERENCE ]>.

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