The referral system of Art. 9 I Regulation (EC) No 2157/2001 : a model for the further development of European private law?

Abstract

Following the Nice compromise in 2000, the European Union adopted the legislation which constitutes the legal framework for the Societas Europaea (SE) on a European level. To this date, many gaps on the European level remain which are filled with national law, as is the main content of Article 9 SE-regulation. Article 9, however, is much more complex, leaving many questions open to discussion. The thesis undertakes it to assess the suitability of Article 9 and, thereby, if similar solutions in parallel processes of legislation are recommendable, in a two-step approach: in a first part, the problems of interpretation are discussed. This reveals a number of obscurities which have led to discussion in legal literature. Some of these problems can be reduced to national peculiarities, while others can be solved using traditional legal methods of interpretation. In a second step, the results of these discussions are used to assess – among other criteria – the suitability of Article 9. While some points could be formulated more clearly, the workability of the current legislation may be below the expectations, but is still given. The present form of the SE-regulation can be seen as slightly improving the possibilities for regulatory competition, but in a manner where a „race to the bottom“ is not a threat. While more regulations on the European level remain desirable, the result of the Nice compromise constitutes a stepping stone towards this end. With the establishment of the SE, growing acceptance in the legal practice and attention in the literature are to be expected. Both will provide incentives for the legislator to develop further the current legislation. The solution of Article 9 therefore has to be seen as a viable legal solution to an intricate political process.