JENNIFER TRINKS, Max Planck Institute for Comparative and International Private Law
Email: trinks@mpipriv.de

Deutsche Zusammenfassung: Stimmrechtslose Vorzugsaktionäre sind nach §§  141, 179 Abs. 3 AktG berufen, einem Verschmelzungs- oder Spaltungsbeschluss der Hauptversammlung zuzustimmen. Mit diesem Verweis auf die allgemeinen aktienrechtlichen Vorschriften hat der Bundesgerichtshof die Rechte stimmrechtsloser Vorzugsaktionäre in der Umwandlung vorderhand gestärkt, nimmt dem Sonderbeschlusserfordernis durch eine allzu vorsichtige Anwendung des § 141 Abs. 1 AktG in der Abspaltung aber die Durchschlagskraft. Der folgende Beitrag versucht, dieses Anwendungsdefizit aufzuzeigen und Grundsätze für eine umwandlungsspezifische Auslegung der §§ 141, 179 Abs. 3 AktG anzubieten.

English Abstract: Non-voting preferred stock shareholders have the right to approve a merger or division resolution of the general meeting pursuant to §§ 141, 179 para. 3 AktG. With this reference to general provisions of the German Stock Corporation Act, the Federal Court (BGH) has seemingly strengthened the rights of non-voting preferred stockholders in the conversion of companies. However, in the case of a spin-off, the court’s overly cautious application of § 141 para. 1 AktG ultimately relaxes the requirement for a special resolution. The following article describes this shortcoming in the application of the general provisions and formulates principles for a conversion-specific interpretation of §§ 141, 179 para. 3 AktG.

PAUL KRÜGER ANDERSEN, affiliation not provided to SSRN
NIKLAS ARVIDSSON, affiliation not provided to SSRN
GINTAUTAS BARTKUS, Vilnius University - Law Faculty
Email: gintautas.bartkus@tf.vu.lt
ANDRI FANNAR BERGTHÓRSSON, University of Copenhagen - Faculty of Law
Email: andri.fannar.bergthorsson@jur.ku.dk
VIRGINIJUS BIT?, Mykolas Romeris University
Email: virginijus.bite@mruni.eu
SØREN FRIIS HANSEN , Copenhagen Business School - CBS Law
Email: sfh.law@cbs.dk
JESPER LAU HANSEN, University of Copenhagen - Faculty of Law (FOCOFIMA)
Email: Jesper.Lau.Hansen@jur.ku.dk
SVANTE JOHANSSON, Linklaters
Email: svante.johansson@linklaters.com
MORTEN KINANDER, BI Norwegian Business School
Email: morten.kinander@bi.no
MÅRTEN KNUTS, affiliation not provided to SSRN
ERIK LIDMAN, Gothenburg School of Business, Economics and Law, Stockholm Corporate Governance Forum
Email: erik.lidman@law.gu.se
TROELS MICHAEL LILJA, Copenhagen Business School - CBS Law
Email: tml.law@cbs.dk
PAULIUS MILIAUSKAS, Vilnius University - Faculty of Law, Ghent University - Faculty of Law
Email: Paulius.Miliauskas@UGent.be
MATTI J. SILLANPÄÄ, University of Turku - Turku School of Economics
Email: matti.j.sillanpaa@utu.fi
GUSTAF SJÖBERG, Stockholm University
Email: Gustaf.Sjoberg@juridicum.su.se
DANIEL STATTIN, affiliation not provided to SSRN
THERESE STRAND, Copenhagen Business School, Center for Corporate Governance
Email: ts.int@cbs.dk
REBECCA SÖDERSTRÖM, Uppsala University
Email: rebecca.soderstrom@jur.uu.se
STEEN THOMSEN, Copenhagen Business School, European Corporate Governance Institute (ECGI)
Email: st.int@cbs.dk
VEIKKO VAHTERA, Tampere University
Email: veikko.vahtera@tuni.fi
SEPPO VILLA, affiliation not provided to SSRN
ANDRES VUTT, University of Tartu, School of Law
Email: andres.vutt@ut.ee
MARGIT VUTT, University of Tartu, School of Law
Email: margit.vutt@riigikohus.ee
JESSICA ÖSTBERG, Stockholm University

On February 23, 2022, The EU Commission published its Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937 (“CSDDD” or “the Proposal”). The purpose of the Proposal, to further the “Union’s transition to a climate-neutral and green economy in line with the European Green Deal and in delivering on the UN Sustainable Development Goals”, is of great importance, and the Commission’s initiative is therefore commendable. However, it is our firm opinion that the Proposal should not be enacted in its present form, and that if it were to be, it would not only damage European businesses but also run the risk of having an adverse effect on both the transition to a climate-neutral economy as well as the goal of delivering on the UN Sustainable Development Goals. This is to a large extent because many of the Proposal’s provisions are excessive, unfounded and disproportionate and as such in violation of the fundamental principles of subsidiarity and proportionality safeguarded by Art. 5 TEU as well as having a questionable basis in Art. 50 TFEU. Furthermore and in regard of procedure, we find that the presentation of the Proposal by the Commission represents a disregard for the principles of better regulation that should not pass unnoticed and must be observed in the future to maintain trust in the legislative process of the Union.

In this response to the consultation, we have presented an analysis of the key issues of the Proposal from a corporate governance perspective. We have divided the response into two parts: one on the pure corporate governance parts of the Proposal (article 15, 25 and 26) and one of the due diligence parts of the Proposal. With regards to the corporate governance parts of the Proposal, our conclusion is that they, by and large, should not be included in the proposed directive at all. Including them would in several ways be in breach of the EU principles on subsidiarity and proportionality, but perhaps more importantly, they are not only unsubstantiated by available empirical evidence on corporate behaviour, but also refuted by what we know. There is also good reason to believe that the proposed rules on director’s duties and environmental remuneration would risk decreasing the effectiveness of the stock markets within the EU contrary to the goal of a Capital Market Union, which also risk slowing down the necessary transition to a green economy and the goals of the EU Green Deal. The regulation necessary for the Capital Market Union and the EU Green Deal should complement each other, not collide as would be the outcome if the Proposal is adopted in its present form.

With regards to the due diligence parts of the Proposal, our criticism is limited to corporate governance aspects and far less fundamental. We primarily believe that grounds for harmonisation needs further consideration in the present very challenging times, that Article 22 on Civil Liability might in several ways be counter-productive to the goals of the Proposal, that the effects on SMEs as well as for the financial companies included covered by the Proposal warrants further analysis, that the choice to focus the Proposal on individual companies instead of company groups needs to be reviewed, and that a risk based approach should be taken rather than an approach were companies are unable to focus their efforts to where they can be most effective. Overall, these issues can be worked out, but if they are not, then the proposed directive would not only have a severe adverse impact on EU companies and possibly capital markets, but might actually hinder EU companies from acting in the way that the Proposal aims for them to do.

This joint response to the public consultation is made by a group of Nordic and Baltic company law scholars who, although we may not agree on every detail, do share the main arguments and grave concerns expressed here.

VIRGINIA E. HARPER HO, City University of Hong Kong (CityU) - School of Law
Email: v.harperho@cityu.edu.hk

For much of its history, corporate law in the United States has been diverging from its roots in public law in a way that has distanced the field and corporations themselves from questions of accountability beyond responsibility to advance the economic interests of shareholders. In recent years, however, shareholders have used the tools of corporate governance to advocate for a broader, more public vision of the corporation. These trends have emerged in the context of rising attention across global capital markets to the need for a sustainable finance transition and international efforts to encourage (or require) investors to take account of climate risk and other sustainability concerns. This chapter highlights how sustainable finance and the public turn in corporate law and practice are mutually reinforcing. It then identifies areas of research that may help better align corporate law with a sustainable finance transition.