| Tittel: | Udfordringerne fra EU-retten til den nordiske ledelsesmodel | | Ansvar: | Jesper Lau Hansen | | Forfatter: | Lau Hansen, Jesper  | | Materialtype: | Artikkel - elektronisk | | Signatur: | Nordisk tidsskrift for Selskabsret | | Utgitt: | København : DJØF Forlag, 2019 | | Omfang: | S. 13-26 | | Serie: | Nordisk tidsskrift for Selskabsret ; 4/2019 | | Geografiske emneord: | Norden | | Innhold: | Nordic company law has been formed by harmonisation for the past century, however, the harmonising effort is now made within the EU and not the five Nordic countries. This effort entails certain challenges when prevailing perceptions of company law are very different from the traditional Nordic values and practise. One such challenge is the Anglo-American approach to corporate governance that is formed by the diverse and atomistic ownership pattern present among listed companies, which leaves management largely independent of shareholders and translate into a considerable scepticism of dominant shareholders as seeking private benefits. This challenges the Nordic approach formed by the ubiquitous presence of dominant shareholders even in listed companies and the belief that dominant shareholders are entitled and necessary to monitor and discipline management on behalf of all shareholders. One such challenge is the Mandatory Bid Rule that threatens an economically devastating obligation to launch a bid for all outstanding shares if shareholders dare exercise their rights and control management. Fortunately, the traditional Anglo-American approach is itself challenged. The rise of institutional investors among American listed companies has made previously independent management more exposed to shareholders and in the EU, ESMA’s attempt to provide a whitelist on concerted actions acknowledges the incompatibility of the MBR with the control rights of shareholders as lately enforced by SRD2. Another challenge is the attempt on an EU level to solve the problems posed by German national law on company groups by introducing a concept of ‘group interest’. In the Nordic countries, the right of a controlling shareholder to govern the company is considered beneficial and encouraged under the term ‘active ownerhsip’, which also covers a parent company’s control within a group. To the extent that Nordic company law has statutory provisions on groups, they only concern economic transparency and do not prevent the controlling shareholders from engaging with management to impose their will, including getting inside information, which is expressly uphold by the CJEU if compatible with national corporate governance. The harmonisation of a group interest is possible, if it is simply recognised that a company may have an interest in being a part of a group and for that reason the company may economically engage with the other companies of that group if it on balance is in its interest. However, the group itself is not an entity in company law and does not have to be in order for the controlling shareholders to exercise their governance rights and consequently the group does not have an interest in and of itself that can justify sacrificing a group company even if it benefits the rest of the group. | | Del av verk: | Nordisk tidsskrift for Selskabsret 4/2019 |
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