Several representatives of the Commission, the European Parliament and the Council of the EU met on Tuesday 25 September to take stock of the negotiations underway concerning the 'company law' legislative package (see EUROPE 12009), at a conference hosted by the Council of the Notariats of the European Union (known by its French acronym, CNUE) in Brussels.
Although some of them expressed optimism over the initial “fruitful discussions” at the various institutions on this package, the Austrian Presidency of the Council of the EU, on the other hand, showed scepticism as to the possibility of an agreement before the end of its mandate.
“I'm afraid we won't be able to finalise a text under our Presidency”, said Matthias Potkya, on behalf of the Austrian Presidency, in reference to the proposed directive setting out harmonised procedures for cross-border demergers and transfers and a targeted revision for mergers, on which there is far less consensus than there is on facilitating the use of digital tools for company registration and management of their information online.
However, as Renate Nikolay, head of cabinet of the European Commissioner for Justice, has stressed on several occasions, the aim is to push these two proposals through together.
On the 'digitalisation' plank in any case, the debates are making progress in a constructive atmosphere, all speakers agreed. Nikolay acknowledged that the Commission has still to clarify certain points, such as the involvement of notaries. “The Commission may not have been clear enough about the fact that this option is open throughout the company's life-cycle, not just when it is being set up through an online procedure”, she explained.
This explicit reference to notaries in the text was hailed by CNUE president Marius Kohler, who took pains in his opening speech to highlight the role played by this profession in guaranteeing legal security and preventing legal abuses by companies in an increasingly digital world.
A more controversial issue will doubtless be the scope of application of the proposal, particularly its application to legal persons, which has given rise to concerns from the European Parliament and the Council. “It is too easy to say, let's just delete it from the scope”, said Nikolay, who rejects this solution, as it would leave several legal gaps, and calls for an in-depth debate on the subject.
Even so, the shadow rapporteur of the S&D group on this dossier, Jytte Guteland of Sweden, is hoping to move in this very direction, calling for the online registration procedure to be limited to natural persons. The added value in opening up this procedure to legal persons - which are generally part of a larger company already in place - is limited, she considers, and could in fact have the effect of opening the door to increased fraud.
Among the member states, there are certainly some who are reluctant to include legal persons, Potkya explained. If the current scope of application is retained, extra steps and guarantees could then be demanded, he added.
The level of identification security in procedures was also raised. Guteland made the case for more secured means of identification, arguing in particular that a simple digitised photocopy of the person's passport was not enough and that it would be more appropriate to arrange videoconferences.
She also considers that the option for member states to request the physical presence of the company owners in the event of suspicions of fraud should be extended and be an option where justified by “reasons of public interest”.
In general, her group intends to make sure that this digital transformation – though entirely legitimate in itself – will have no secondary effects, “that it won't create problems that actually will cost more than it will benefit the EU”. (Original version in French by Marion Fontana)