The Belgian Centre of Company Law (BCV/CDS) published a position paper on the proposal for a EU Inc. The paper can be consulted here.
From the executive summary:
“The Belgian Centre of Company Law (the “BCCL”) welcomes the Commission’s EU Inc. Proposal, in particular the emphasis on online formation and deliberation, the “once-only” principle, the use of a Regulation rather than a Directive, and the introduction of EU-level templates for articles of association.
At the same time, the Commission should consider a more balanced approach to creditor protection. The current proposal contains fewer mandatory safeguards than even most national private company forms, which may provoke resistance from Member States. We therefore suggest that the Commission considers introducing a number of targeted creditor-protection measures.
The BCCL is not fully aligned on a further crucial choice to be made: either the EU Inc is made available to European entrepreneurs as a very flexible company form with very little mandatory nor default rules, leaving much contractual freedom to shareholders to make specific arrangements in the articles of association and in shareholder agreements; or the EU Inc provides not only a reasonably balanced approach to the protection of creditors, but also of shareholders. While all of the undersigned agree on the need for additional creditor protection mechanisms, for some of the undersigned, the current proposal does not meet a sufficient standard with respect to shareholder-protection and should therefore be completed by some additional mandatory shareholder-protection or at least default rules as well.
In both approaches, however, Article 4 of the EU Inc. Proposal should be substantially revised to clarify the relationship between the Regulation, the articles of association and national law. The Regulation should also provide greater legal certainty. Fragmenting the EU Inc. into twenty-seven national variants should also be avoided.
We also believe that the success of the EU Inc. will depend largely on the design of the EU templates. Different templates should be developed for simple founder-owned companies and corporate subsidiaries, on the one hand, and for more sophisticated investor-backed companies, on the other hand, for some of the undersigned to be complemented by templates for shareholder agreements. These templates should benefit from a safe harbor with regard to their enforceability.”
Corporate Finance Lab 