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Extending the concept of consumer to minority shareholders : towards a reform of derivative actions
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Florence : European University Institute, 2021
EUI; LAW; LLM Thesis
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BATTOCLETTI, Vittoria, Extending the concept of consumer to minority shareholders : towards a reform of derivative actions, Florence : European University Institute, 2021, EUI, LAW, LLM Thesis - https://hdl.handle.net/1814/93719
Abstract
Nowadays, collective redress represents one of the most versatile and effective remedies of protecting consumers (and others) in private law, capable of safeguarding and providing judicial protection even to those rights which would have otherwise been neglected by their legitimated but disincentivised owners. This thesis investigates the possibility of extending the concept of consumer to minority shareholders, including their ability to file a complaint against the company’s board and, in turn, it suggests applying some of the incentives found in the class action regulation for consumers in Europe to collective action in company law. Specifically, this thesis focuses on derivative actions, a potentially powerful collective tool used by minority shareholders, whose interests have been infringed by negligent decisions and misbehaviour of the company’s directors. It aims to demonstrate the possible benefits of applying legislation on consumers’ class actions to minority shareholders and to existing derivative actions, both as a way to protect small shareholders and as a deterrent rule. This solution would allow an easier access to justice and, in addition, should also act as a deterrent, preventing misbehaviour and abusive decisions from the board of directors, becoming a form of private enforcement and improving the governance of the company. The research analyses the legislation of three EU Member States: it analyses the German, Italian and Slovenian regulations, by connecting both the “Musterfeststellungsklage” and the provisions found in the “Aktiengesetz”, the corresponding legislation in the Italian system in particular “L. 31 del 12/04/2019” and the art. 2393 bis c.c., as well as the Slovenian Law of Collective Actions (Zakon o kolektivnih tožbah) and the člen 328 (1) ZDG (Zakon o gospodarskih družbah). Since the derivative action can be regarded as a simpler version of the class action, where the interests carried by shareholders are homogeneous, this thesis suggests that they are broadly equivalent tools of enforcement. Consequently, by comparing them, this thesis suggests that the derivative action can benefit from some of the legislative expedients and incentives of the consumers’ class action regulation such as for example: (i) lowering the quantitative requirements needed for filing the claim, (ii) diversifying the diffuse active legitimacy by enabling qualified bodies such as shareholders’ associations and organisations to represent their members in court and (iii) shifting the burden of costs that should be carried by the abovementioned qualified bodies and/or the companies but not by the shareholders themselves.
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Award date: 30 September 2021
Supervisor: Prof. Mathias Siems (European University Institute)
Supervisor: Prof. Mathias Siems (European University Institute)