Light Vehicle Competition in Europe

1. Light Vehicle Competition in Europe Light Vehicles - The Heavy Load of ‘Flexible’ National Company Laws for Pseudo-Foreign Companies Duly Established in EU S. Rammeloo - Workshop Corporate Law (Ius Commune Leuven, November 26, 2010)

2. Light vehicle companies - German Experience Making national (company?) laws more ‘flexible...’ ...in equally being applied to (pseudo) foreign companies, even when duly established in EU? AG Hamburg 23 November 2008, IPRax 2010, p. 253, (comment P. Behrens)

3. AG Hamburg 23 November 2008 - Facts • 25 August 2008: UK Private Ltd. company petitioned: insolvency proceedings • 27 August 2008: Insolvenzverwalter appointed • 25 November 2008 expert report: ‘from October 2007 onwards company no longer able to meet obligations)’. Advice: commence insolvency proceedings However: • Lack of assets (cf. NL art. 16 FW), unless… • Eigenkapitalersatzrecht: shareholder liable towards insolvent Ltd. (repayment of €30.000- received from the company out of loan from him to the company)? • Shareholder received repayment: 25, 26 Nov. 2007 and 5 Febr. 2008: contestible transactions (§ 135.1 InsolvenzO)

4. AG Hamburg 23 November 2008 - Court Judgment - Jurisdiction: article 3.1 EU Reg. 1346/2000 (Insolvency Regulation): COMI - § 135.1 of German InsolvenzO applies to ‘allen Verbänden’ (i.e. all corporations), there fore also including ‘Scheinauslandgeselschaften’ (pseudo-foreign companies) even when duly incorporated in Europe

5. AG Hamburg 23 November 2008 - Peculiarities Legal ‘Gerrymandering’ in more than just one respect? 1 Substance and reasons of law amendment 1 Nov. 2008 2 ...even having retro-active effect? Cf. ‘transitory law’: - Companies being ‘Insolvenzreif’ (cf. time path) 3 Last but not least: characterization of subject-matter involved - MoMiG... transferring ‘remedy’ from GmbHG to... InsolvenzO - For national legislator to decide? - Consequences cross-border company relationships

6. AG Hamburg 23 November 2008 - Queries ‘Cross-border context’ The fore lying case may (soon?) appear to be anything but exceptional... With a view to - Pseudo-foreign corporations, but as well to - Genuine foreign corporations Just a few (provocative) questions...

7. AG Hamburg 23 November 2008 - Queries How about... • German law on (e.g.!) Eigenkapitalersatzrecht:a fortiori applicable to nonpseudo-foreign corporations?; • How about other mandatory law provisions on internal/external company affairs; is there any border to national law oriented ‘Gerrymandering’?; • Is it (exclusively) for national law to characterize the demarcation line between company law, insolvency law. Or even... contract law?

8. AG Hamburg 23 November 2008 – Queries More particular in view of EU law • ‘Missing’ motivation on law finding in EU law (insolvency) context (cf. two modes to extend national law); • Freedom of establishment doesn’t seem troublesome here (control - frontloaded biased); • As to back-loaded control: at discretion of EU MS (cf. legal ‘transfer’ from company law to insolvency law)?; • Relationship article 4 subs. 2 (m) – article 13 European Insolvency Regulation 1346/2000

9. AG Hamburg 23 November 2008 – Reciprocity? Last but not least... How about court proceedings in UK courts: • ‘German’ Ltd? • Mirorring image: (genuinely foreign) German GmbH in UK court proceedings

10. Light vehicle ‘competition’ in Europe Conclusions and outlook... Where company law and insolvency law meet... Clear guidance needed: 1 National law – EU law: margins 2 EU Law: EiR, notably reach of article 4 subs. 2 (m) and article 13 3 EU law (harmonization): substantive interests of ‘company members and others...’, colliding with EU Insolvency law?