(I) Legislative background of EU company law
The EU is a European coal and steel company (referred to as "European coal and steel company") and a EuropeanEconomicCommunity. EEC for short) and Euratom for short. The establishment of the European Union is due to the fact that all countries have experienced World War II, and the European economy urgently needs the cooperation of governments in order to revive the economy. In 195, RobertSchuman, then French Foreign Minister, put forward a plan of joint management of coal and steel production by European governments. This plan has been echoed by some European countries. On April 18th, 1951, six countries including France, the former Federal Republic of Germany, the Netherlands, Italy, Belgium and Luxembourg signed the "European Treaty of Coal and Steel" (also known as "Paris Treaty") in Paris, and formally established the European Coal and Steel * * *. With the development of the situation, the above-mentioned six countries signed the European Economic Treaty and the European Atomic Energy Treaty in Rome on March 25th, 1957 (collectively referred to as the Treaty of Rome). In the introduction of the first European Coal and Steel * * * treaty, it is also clearly pointed out that the purpose of establishing this * * * treaty is to "maintain their basic interests by establishing an economic * * * body to replace long-term hostility and serve as the basis for establishing a broader and deeper * * body among people divided by bloody conflicts for a long time." Subsequently, on January 1, 1981, Greece joined the above three * * * homologues. Spain and Portugal were the third batch to join the above-mentioned three * * * isomers on January 1, 1986. In 199, the former East Germany, as a part of the unified Federal Republic of Germany, naturally became a member of three identical bodies. By January 1, 1995, three more countries, including Austria, Finland and Sweden, had joined the three * * * bodies. Later, the Netherlands, Belgium and Luxembourg also joined the * * * bodies, thus bringing the total number of member countries to 15 at present. On February 7, 1992, the then 12 member States signed the Treaty of European Union in Maastricht, the Netherlands. This treaty reaffirms the purpose of "building a closer union among the European people" and proposes to establish the European Union on the basis of three * * * identical bodies. The EU Treaty was revised in Amsterdam, the Netherlands, in 1997.
At present, Czech Republic, Hungary and Poland are also preparing to join the EU, and their negotiations started as early as March 1998. In December 22, Copenhagen was the symbol of the EU summit? The negotiation process was successfully concluded. It is precisely because of the international attention paid to the unification of multinational alliances and the complicated process that the process of moving towards the Athens Treaty is not easy for existing EU member States or countries applying for accession. The accession treaty of the European Union signed in Athens on April 16th, 23 brought the process of European reunification into the final stage. There are still many internal preparations in the whole joining process, including the coordination of laws and the formulation of the constitution, especially the regional policy and agricultural policy. These countries will formally join the EU on May 1, 24 after the approval process for joining the EU is completed. At present, the three countries have become three new NATO countries, and they are also actively participating in the cooperation of VisegradGroup. The 25 allies of the European Union will remain strong in the future, joining the Congress to attend the upcoming intergovernmental international conference (IGC). The governments and business circles of Hungary, Czech Republic and Poland attach great importance to economic diversification, including actively establishing relations with countries outside the EU, especially in Greater China, including Macao and Hong Kong. The three governments are ready to conduct business matching for Macao companies and their domestic companies. In addition, after the three countries join the EU, product standards, technology, hygiene and safety rules will be unified with EU countries, and Macao's export products have already met EU standards, so electronic and electrical products exported from Macao can easily enter the Czech Republic, Poland and Hungary. Miroslaw, Polish Consul General in Hong Kong? When talking about the investment environment in Macau, Gaevski said that Poland is a bridge to eastern and western Europe, and the average hourly wage of labor in this country is $2.6, which is far lower than the French $19 and German 22 yuan. And after the country formally joins the European Union, investors can unconditionally enter the market with a population of 5 million and enjoy other investment preferences.
in addition to the treaty of Rome (1957), the constitution of the European central bank (1992) and the convention for the protection of human rights and fundamental freedoms (7.8.1952), in the field of economic law, it mainly focuses on company law (discussed in the next section) and competition law, which is the constitution of a market economy. In December 1985, the Committee's "White Paper" was approved by the Council. In order to promote the implementation of the White Paper, in February 1986, the European Council signed the legal Single European Document, which made the first important amendment to the Treaty of Rome, replacing the decision-making condition of "unanimous consent" with "effective majority", thus helping the European Council of Ministers and the Committee to build a unified internal market more effectively. The "European integration document" came into effect on July 1, 1987. After several years of efforts, the European unified market was officially launched on January 1, 1993, and goods, funds, services and personnel began to circulate freely within EU member States. The EU market needs corresponding unified market rules. As the main body of the market, the company has become the urgent research object of the European Union from the very beginning. Different corporate legal rules in member countries have extremely adverse effects on enterprises, shareholders and creditors in the legal field, especially different legal norms make it difficult for the good function of competition order to work. Therefore, the EU has made the following judicial efforts.
(II) The principle of interpretation of the priority of EU law
The European Court of Justice (EuGH) has successfully obtained the mode of priority application of EU law through precedents for decades. The earliest case on the priority of application of EU law is the case of VanGendenLoosa, a Dutch importer, in 1963. He imported chemical factory products from Germany, but the Dutch authorities demanded to collect special customs duties from Dutch importers in accordance with the legal provisions made by the Dutch law after signing the Rome Agreement. Based on the previous article 12 (now article 25) of EGVd, the European Court of Justice held that member States are obliged to cancel the collection of new taxes, which should not be higher than the tax regulations stipulated for citizens of member States. Member States are obliged by law not to do anything about it, and this importer does not have to pay special tariffs. In 1964, Italian lawyer Costa refused to pay the electricity bill demanded by Italian state-owned company ENEL. After accepting the case, the European Court of Justice held that Article 234(177) of EGV could not take precedence over Article 31(37). According to Article 31(37), state-owned monopoly enterprises must give up discriminatory practices against citizens in member countries in terms of power supply and related conditions. Since then, EU law has been applied before the laws of member States, which has been more clearly confirmed by subsequent cases. In the future practice, the European Court of Justice has made a new move on the priority of EU law, that is, the priority application of European body law is extended to the priority application of EU regulations, and it is regarded as the direct application law of super-EU countries. The European Court of Justice regards it as a subsidiary EU law, and claims that it has the same priority as EU law and is recognized by EU law. Finally, the European Court of Justice also regards the EU's directives to member States as a priority application. Under certain conditions, the directive can be directly applied. For example, in 1979, Mr. Ratti was punished more severely than the EU directive according to Italian regulations. The European Court of Justice has given priority to the application of the EU trademark directive on hazardous raw materials (after the issuance of this directive, Italy did not adjust its domestic policies in time according to the EU directive). The European Court of Justice pointed out that this EU directive can be directly applied to disputes between EU countries and their citizens, because the directive pays more attention to protecting the latter in the relationship between member States and their citizens, and this directive has concrete content rather than empty and abstract instructions. In the relationship between citizens of member States, the European Court of Justice refused to apply the directive priority to those member States that have not yet adjusted their policies according to the EU directive, but requested that their national laws should be interpreted according to the EU directive as far as possible.
If the above-mentioned consistent interpretation with the EU directive is not accepted by the member states or it is difficult to make enough consistent interpretation, so that citizens cannot be guaranteed not to suffer damage, then the European Court of Justice can sentence the member states to the obligation of compensation. This judgment was first made in the Francovich case in 1991. Francovich and Bonifaci suffered damages because their employers did not follow the EU's instructions to protect employees. Italy could have created a deposit to protect employees like other member States. On this basis, the European Court of Justice holds that if a member state fails to act in accordance with the EU directive and damages the interests of its citizens, and the damaged civil rights are sufficiently specific and determinable, and have a direct causal relationship with the country's violation of the EU directive, then the European Court of Justice can sentence its member state to be liable for compensation. The obligation of compensation demanded by the European Court of Justice is based on Article 1(5)EGV of the European Law, because each member state must take all feasible measures to fulfill its obligations under the contract or from the European Union. In 199, the European Court of Justice declared in the FactortameI case that a member state must provide effective legal protection against the violation of EU law in its domestic law. In addition, in the case of BritishTelecommunications, there has been a trend: if EU member states intentionally or negligently modify their member states' laws according to EU directives, which leads to the inconsistency of the directives and thus damages to citizens, they should be liable for damages. If the revised member state law is not equipped with corresponding and appropriate sanctions, it should also be liable for damages. The European Court of Justice hopes that the courts of member countries will attach importance to the principle of interpretation in favor of the European Union and attach importance to the consistency of existing domestic laws with European Union law in the interpretation.
Although EU law and the laws of member states are different legal systems, especially the case of the European Court of Justice (EuGH) is only the judicial practice of EU law, the courts of member states all make their judgments under the influence of EU law. The European Commission, the European Court of Justice and the companies of the member countries are all related to the free market principle of the EU agreement, especially to the principle of freedom of movement in Articles 43-48 of the EU agreement, so the understanding of the precedent of the European Court of Justice can often be better explained in the comments on the above principles. In this regard, Germany is relatively cautious. The precedents of the European Court of Justice are more integrated into the goal of EU integration.
Part II
(III) Legislation of EU company law
The EU company law is one of the most important legislative actions. It is mainly divided into two categories:
First, the European Company Act: its original name is a proposal stipulated by the Council on European Company Law, which is not based on the company laws of the member States of the European Union, but a bill on the establishment and legal relationship of European companies with the same applicable law. Therefore, European companies are not actually established or existing companies now. Moreover, this European Company Act embodies many contents of the German Joint-stock Company Law enacted by Germany on September 6, 1965 and revised according to the European Company Law on June 6, 1998, including some contents of the French Company Law.
second, the company law directive: it is only a tool to balance the laws of member countries, and their differences still exist. The wording of the company law directive is not clear, and its purpose is to provide more space for interpretation in this way. In the field of company law, as early as 1968, the European Union began to formulate the No.1 Company Law Directive. At present, the European Union has issued nearly 2 directives on company law. The European Union clearly and earlier than individual directives and rules formulated the authority of company legislation in the field of company law. As far as the company law is concerned, in order to form a common market in Europe and eliminate the obstacles caused by the free exchange of people and goods, it was once again agreed in the EC Uniform Law promulgated in 1987 that the legal coordination among member States should be carried out in various fields. The European Union (EU) company law directive and the amendments to the company laws of member countries should enable their nationals to conduct business activities freely in other countries. To this end, the enterprise organizations owned by each member country must coordinate their actions, and efforts should be made to set up the same protection devices for the activities of companies and enterprises in each member country.
the company law directive is one of the most important legislative actions. It is mainly divided into two categories: company law directive and capital market directive:
First, company law directive
It mainly includes:
register-oder publication and registration directive, which is also the No.1 directive:
In order to protect the interests of shareholders and other stakeholders of the company referred to in Item 2 of Article 58 of the European Treaty, Europe * * * These measures are integrated with company law directive no.1. In 1969, Germany turned this into domestic law.
Kapitalrechtlinie
In order to coordinate member countries to protect the interests of shareholders and other interested parties of the company referred to in Item 2 of Article 58 of the Treaty of Europe, the Council of Europe formulated safeguard measures for the establishment of a joint stock limited company and the maintenance and change of its capital in 1976, which are called the No.2 Company Law Directive. The directive requires the laws of member countries to stipulate the minimum amount of actual subscribed share capital. This amount shall not be less than 25, European currency units. The European monetary unit is defined by Resolution No.3289/75 of the European Commission. The conversion of European monetary units into the currencies of equivalent member countries shall be based on the exchange rate on the day when this Directive is adopted. If the currency of a member country equivalent to the European Monetary Unit changes, so that the minimum capital amount denominated in the currency of the member country is lower than 22,5 "European Monetary Unit for one year, the Committee shall notify the member country concerned to amend its legislation within 12 months after the expiration of the one-year period, so as to comply with the provisions of item 1 of this article. However, member States may stipulate that the revised legislation shall not apply to existing companies within 18 months from the date of its entry into force. According to the recommendation of the Committee, the Council should comprehensively consider the economic and monetary trends of the European countries. And only large and medium-sized companies are allowed.