QUESTIONNAIRE by wuxiangyu


									Dear Colleagues,

Please, find here bellow the questionnaire which shall be the basis of our future work and
discussions on the EMCA chapter on “Groups of Companies”.
As you all are aware, this is a difficult topic, due to several reasons: first, the lack of general
regulations in most of the European countries; secondly, the failure of the harmonization
efforts at a European level (with the collapse of the proposal of a 9th Directive); thirdly, the
rather disparate doctrinal and jurisprudential approaches existing at a national level.
In order to have a solid ground for our next meeting in May, we found it useful to elaborate a
questionnaire which shall provided us all with the “state of the art” in the various European
legal systems on the topic. While being a useful tool for our work, it is likely that the centre of
our discussions will focus in the shape, goals and content of a future chapter on groups of
companies. On that respect, we found that some agreements have to reached regarding some
key issues of our regulatory strategy, such as: Do we need a global regulation on corporate
groups or should we take a minimalist perspective, by addressing only very specific issues of
its formation and functioning (“Unitary v. Fragmentary Regulation”)? Should regulation
consist in general standards or principles or be based instead on a set of legal rules (“Standards
v. Rules”)? Should regulation be mandatory to economic groups or instead merely voluntary
(“Mandatory v. Optional”)? Should regulation aim the protection of the interests of subsidiary
companies, minority shareholders, creditors, and others or seek further for the organization of
the economic unity as a whole (“Protection v. Organisation”)? Should we focus exclusively on
the company law issues or should we take into account also the way groups are treated in other
branches of law (“Formal v. Functional Approach”)


                                   Groups of Companies
General Laws

   1. Is there any general chapter or legal regulation concerning groups of companies
      in your national “Company Act”?

       Yes – Commercial Code §§ 66a-c

   2. If not, are there any relevant single legal provisions on this topic in your
      national “Company Act”?

General Notions
       1. Is there a legal notion of group of companies (or of its components, e.g. parent
          company, subsidiary company)? If yes, state the rules and its content.
          Ovládající, ovládaná osoba, koncern…
       2. Is there a legal definition of “control” or “domination/dependence”? If yes, state the
          rules and its content.
          Ano § 66a

       3. Are there any others similar concepts or definitions in your national laws (e.g.
          holding)? If yes, state the rules and its content.

Group Formation (do not include securities market law)

      1. Which are the main legal instruments for the creation of a group of companies?
         Faktické nabytí, uzavření ovládací smlouvy
      2. Is there any form of publicity or any duty of information concerning the group
         existence ?
         Zpráva o vztazích, ovládací smlouva - OR
Group Management

       1. Is the parent company entrusted with a power of direction over its subsidiaries?

       2. Under which circumstances, if any, the manager of a subsidiary company may
          follow the interest of the group instead of the interest of the subsidiary itself? 66
          odst. 8 – vyrovná ztrátu nebo má ovládací smlouvu

       3. Under which circumstances, if any, the parent company may be liable for the debts
          of its subsidiaries? - § 66c, ručení společníků obecně

Conflicted transactions and intra-group transactions

       1. Are there rules regarding contracts between related companies ?
          § 196a
       2. If yes, please describe briefly the rules.

       3. If your opinion, are these rules efficient to prevent self-dealing ?
           Moc ne
Protection of Creditors and Minority Shareholders. Squeeze-outs. (do not include
securities market law)

       1. Are there any special legal provisions aiming to the protection of creditors and of
           minority shareholders of subsidiary companies?

      2. Does your national law recognize to a controlling shareholder any legal right to buy
         out the shares of minority shareholders?
      Ano – squeeze out, někdy i povinnost nabídky převzetí
Simple Shareholdings and Cross-Shareholdings
       1. Is there any specific regulation concerning the ownership by a company of shares
          on the capital of another company (e.g., duty of disclosure)?

       2. Is there any specific regulation concerning shareholdings between companies

Other Regulations

       1. Outside the area of company law, are there any other legal regimes or norms
          concerning groups of companies (e.g., in insolvency laws, in accounting
       Ochrana hospodářské soutěže – koncentrace,

       1. Are there any special national issues not covered by the above? If yes, which?
Snad už ani ne

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