|national level were fairly similar in their scope and recommendations. It was
argued that corporate governance was an excellent area in which to apply the
“soft law” approach and that harmonisation in this area would jeopardise the
strength of the diversity of the national systems. Moreover, the arguments
advanced in support of EU intervention were not convincing.
High-profile corporate scandals in the US have changed this perception
fundamentally. In a very short period of time, harmonisation of corporate
governance standards came to be seen as “essential” for Europe in order to
rebuild the confidence of investors and to foster business competitiveness and
efficiency (European Commission, 2003a, p. 3). Further harmonisation of audit
standards and oversight of the profession is also all of a sudden a high priority.
Such a dramatic change cannot disguise the fact that the Commission’s new
stance is above all reactive. It missed an opportunity to set a European code in
the mid-1990s. Moreover, the Commission is probably now over-reacting and
initiating legislation without any real need to do so.
This paper analyses the European corporate governance debate and
examines both the report entitled A Modern Regulatory Framework for
Company Law in Europeprepared by the High Level Group of Company Law
Experts (2002a) (hereinafter referred as HLG Report II) and the European
Commission’s Communications on the subject. It is structured as follows.
Section 2 frames the debate on corporate governance in the context of the
broader discussion in corporate finance circles on market vs. bank finance and
the subsequent regulatory response. It builds upon the fact that the European
system is largely bank-dominated, which is characterised by a structure of
concentrated ownership and differentiated voting rights. Although such a system
might be inefficient from a corporate finance perspective, its regulation is less
cumbersome and less costly. Section 3 briefly addresses the corporate
governance discussions in the EU member states. In particular, it points out that
a variety of initiatives and studies in the area of corporate governance have all
reached the same conclusion that there is no need for an EU corporate
governance code, advocating instead a soft-law and best-practices approach.
Section 4 discusses the recommendations put forward in the HLG Report II in
the area of corporate governance. It argues that the HLG and subsequently the
Commission failed to demonstrate that the proposed measures will rebuild
investor confidence or foster business competitiveness and efficiency.
Moreover, the proposed recommendations are in line with measures aimed at
mitigating agency problems with dispersed non-controlling shareholders and
managers. These measures are in fundamental disequilibrium with control and
ownership structures in the EU and would therefore at best a negligible impact
on EU companies and possibly at the worst, a damaging effect. Section 5 briefly
addresses the agenda of reforming statutory audit in the EU. Section 6 concludes
this paper.
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