The Gazette 1974

sional standards. The Communities' legislator, the Council of Ministers, has before it a volume of propos* als for approximation of national laws far e x c e e d i ng the usual workload of a national parliament. High ° n its list of priorities are several proposals concerning company law. The Commission's programme of com* pany law approximation has attracted comments an" criticism at every level, particularly from the three ne^ Member States. Such a reaction is quite understandably The programme and the proposals have been drafts" by the former Commission without benefiting from th e participation of experts from the new Member States- Because these draft directives were intended to bring the national laws of the Six into closer alignment, it was only natural that they should reflect the traditions an" aspirations of these countries. It is equally obvious that the accession of countries with a somewhat different tradition of law and practice should pose difficulties- It should be made clear from the beginning, that, not only the Commission, but also its staff, realise it woul" be unfair, unwise and not realistic to press proposals formulated in view of the Six without benefiting from the fullest possible discussion of these proposals with all interested circles from the three new members. There is still very little known in Ireland about th e law making process of the Community and on its pr°" gramme and proposals concerning Company Law. An" the Commission's staff have still very much to learn o" Danish, British and Irish law and practice. In thi* effort, we feel privileged to be now assisted by very abl c colleagues from your country. Lack of mutual info*' mation is probably the most important reason for most misunderstandings on both sides. It is interesting to note that most of the problems raised at the moment i" relation to Company Law are problems the Commission discussed already with the original Member States at the beginning of approximation in the early sixties. Th e problems are : —why is it necessary to approximate company laws, —which problems should be dealt with first, and —how far should approximation go, in other word* how detailed and how rigid should a directive be» and whether or not it should merely contain comm 0 " minimum rules or fixed rules to be incorporated in t0 the nine national legislations. Let us first comment briefly on one objection 0 principle directed against our effort to approximat c company lav/. The argument is the following: Th c British and Irish legal systems differ fundamentally from the systems of most other Member States. This dift' erence is of real significance in the field of company la^: Irish and British Company Acts do govern the life 0 companies only in part and in response to experien" e under the Common Law which continues to regula te many aspects of company law. My answer to this is that such a situation seems n" 1 to be peculiar to Britain and Eire. In all other Memb c j States, too, Company Law does not regulate all the leg 3 problems of companies. There is an extensive body 0 case law on companies in the other Member States, to"' A comparison of British and Irish Company Acts wi" 1 Continental Acts shows that the former has p r a c t i c al the same contents as the latter, even where the soluti" 11 retained for a particular problem may be different- Moreover, it can be said that the questions covered b) 178 Fundamental differences between Civil and Commo 0 Law ,

1973—to bring into effect. The Second Convention on mutual recognition of Companies has been ratified by 5 out of the original 6 Member States. So far this process has taken 15 years, and it is not anticipated that this Convention will come into force soon. The Copenhagen Summit Meeting of 1973 has encouraged the procedure under Article 235, instead of relying on Conventions. The position furthermore is that, when any international Convention is presented before a 'National Parliament', then that Parliament can either ratify the Convention or decline to ratify it, but it cannot change it in any way. There is, on the other hand, plenty of discussion undertaken, when the Com- mission introduces Regulations, and the advice of the European Parliament undoubtedly influences Com- munity legislation. Most of the lobbying before the Commission, as Dr. Schwartz pointed out, is carried out by Banks, In- surance Companies, Employers and Tr ade Unions (whether Christian or Socialist) who group themselves in European associations. Many visitors from different organisations in the new Member States have come to the Commission in Brussels, and have been received by the relevant official experts, who are always willing to give the necessary information. Unfortunately for law- yers, there is no European Lawyers Organisation re- presenting them at European level, and lobbying can only be effective if such a body existed. Mr. Temple Lang stressed that there would henceforth be a Euro- pean impetus to reform Company, Law and that the distinction between public companies and private com- panies, so beloved by Briti c h and Irish lawyers, would gradually tend to disappear in practice as soon Irish Private Companies will have to publish some form of Accounts. Mr. Mac Liam, of the Department of In- dustry & Commerce deprecated the remarks about secret legislation. He said that the Restrictive Practices (Groceries) Act 1973 had arisen as a result of a lengthy public inquiry before the Fair Tr ade Commis- sion followed by a lengthy report. As regards Insur- ance, a wide and representative Committee would re- port upon the problem soon. There will also be an uninhibited Report on Consumers Protection which has been financed by the Minister. An informal Com- mittee of experts advises the Minister on Company Law reform, and organisations can make suitable rep- resentations at all times. Ty Dr. Ivo E. Schwartz, LLM. A lecture entitled "Creating a Common Market for Companies" was delivered by Dr. Ivo E. Schwartz, LL.M., Director for Approximation of Laws : Compa- nies and Firms, Public Contracts, Intellectual Property, Fair Competition, General Matters, Commission of the European Communities, Brussels, at Wexford on 9th Ma r ch 1974. Part I The European Commission has initiated or is elabor- ating proposals to approximate national laws covering many aspects of the activities of commercial enterprises in the Common Market. Its programme ranges from customs matters, exchange controls, technical standards and safety requirements, food and veterinary laws to taxation, banking, insurance, company law, and profes- CREATING A COMMON MARKET FOR COMPANIES