EMCA - A Basis for EU Legislative Strategies
The European Model Company Act was published in 2017 after some ten years of preparation. The intention was to create a thoughtful model company act based on a thorough understanding of how national company law solutions relate to their respective institutional environments. The model embraces the benefits of integration and uniform solutions within the EU, but importantly recognizes that national circumstances – the institutional set-up, if you will – is sufficiently varied so as to warrant tailored solutions as well. For an introduction to EMCA, see http://law.au.dk/en/research/projects/european-model-company-act-emca/.
The thoughtful process underlying EMCA is admirable. The varied national solutions are recognized and studied in detail – with established academics available to explain the relevant context. Common ground is then established while ensuring regional differences are given enough space.
There are many examples of failed or inadequate EU regulatory processes, including in the context of corporate law; the legislative process of some two decades that preceded the introduction of the takeover directive and the initial proposal for SHRD 2 (adequately watered down during the legislative process) being just two examples. However, the legislative traditions of the EU are still young compared to many of the member states, and supranational regulation, s such, provides a unique level of complexity. So it should be no surprise that the legislative processes in the EU are still less than perfect. However, this is no reason to give up on EU regulation. Instead, the challenge should be met by developing better approaches to regulatory processes and regulatory design – the process underlying EMCA being a prime example.
In comparative institutional analysis the importance of the institutional environment is recognized and emphasized. The institutional environment defined the scope of feasible organizational solutions to economic relationships, including with respect to corporate law and corporate governance (See Masahiko Aoki, Toward a Comparative Institutional Analysis, 2001). EMCA should be a good grass-roots example of such analytical work.