The European Union company law - Essay Example

LAW The European Union Treaties are a collection of international agreements amid the European Union associate s which laydown the European Union’s constitutional foundation. The member states set up the various European Union institutions together with their tasks, methods and objectives. The European Union only acts within the powers given to it via these treaties. Amendment to these treaties should have the agreement and endorsement of every party. The treaty of the European Union was signed in Maastrich on the in the year 1992. On the other hand, the treaty on the European Union functioning was signed in Rome in the year 1958. The function of the two treaties is to lay out the way in which the European Union operates. There are other satellite treaties interrelated to the two treaties. These treaties have undergone repeated amendments since the first signing. The European Commission usually issues the combined version of the two main treaties. In accordance with the Treaty of European Union, article 5 offers the limitations of the competences administered by the principle of conferral. The principle of subsidiary and proportionality governs the use of its competences (Kapteyn, 2008). The principle of conferral, on the other hand, states that the union should act inside the limits of the capabilities bestowed upon by its Member States in the Treaties in order to accomplish the purposes intended. The competencies bestowed upon the members in the treaties remain as part of the member states. The principle of subsidiary states that in the areas which are not under the union’s exclusive competence, the Union acts only if the roles of the action in consideration cannot be achieved adequately by the Member states. This can be either at a central level or a regional and local level. The Union only comes in if the outcomes of the proposed action can be achieved better at the Union level. The foundations of the Union apply the principle of subsidiary as illustrated in the Protocol on the appliance of the principles of proportionality and subsidiarity. The parliaments of the various countries usually ensure that there is compliance with subsidiarity according to the procedures set up in the protocol. The principle of proportionality, on the other hand, states that; the form and the content of the Union action should not exceed what is crucial to realize the purpose of the treaties. The foundations of the Union only apply proportionality as illustrated in the Protocol on how to apply the principles of proportionality and subsidiarity (Christoffersen, 2008). There exists a huge economic magnitude and cross border nature of gambling and betting market. However, a European Union legislation synchronizing the gaming and betting sector has not been formed yet. However, instructions from the European Union Consumer Protection cover specified areas of activities. These areas include unfair commercial practices, data protection directives and the distance selling directive. On top of that, the European Union company law has a number of harmonized rules and regulations that it has laid down. All European Union regulated and licensed gaming operators get subjected to these rules and regulations. However, there are different features that not covered with the harmonized rules and regulations. The Member States’ national legislation regulates these aspects. The Member States’ national legislation needs to abide by the necessities of the treaty of the European Union’s specifications. The directives that apply to the treaty of European Union, article 5 are: The Distance Selling Directive: this directive applies to any consumer distance bond made under a European Union Member States’ law and also, the European Economic Area. This directive offers a number of basic legal rights for the consumer. These rights make sure that the consumer protection level throughout the European Union is high. Consumer protection involves a number of measures concerning their security. These measures involve offering consumers with news concerning their safety. The alerts consist of the system for non-food consumer products, product legislation, offering European standards, market surveillance and implementation, the use of international cooperation, projects, and the Product Safety and Market Surveillance Package. The Unfair Commercial Practice Directive: this directive involves banning of all unfair practices in gaming and betting in the European Union. It also lays down a couple of practices forbidden throughout the European Union. These directives also ensure that the products meet standards which will allow compensation in case of damages (Howells & Micklitz, 2006). The Consumer and marketing laws are usually under the Unfair Commercial Practice Directive. It covers the main areas which are important in the protection of the economic interests of consumers. Its main focus is usually on the misleading advertising and unfair commercial practices. It also focuses on guarantees and unfair contract stipulations. The Notification Directive: this directive obligates the Member States to notify the Commission of all the draft technical regulations of all inter alia Information Society Services before their adoption in the national law. The purpose of this method is to provide control and transparency while regarding these policies as they could generate unjust barriers between Member States. The Notification Directive is usually met through the 98/34/EC Directive. The 98/34/EC Directive is a directive that sets up a procedure which inflicts a duty upon the Member States. The responsibility is to inform the Commission and each other all the technical regulations concerning products and services before their adoption in the national law. The data Protection directive: this directive complements the data protection legislation in the European Union. It helps to eradicate obstacles in the flow of Personal data. It also makes sure that the security level within the European Union is high. Personal data can only be collected under strict conditions, mainly for legitimate intentions under the European Union law. Furthermore, the betting and gaming organizations, which manage and collect personal information, should protect it from misuse and unauthorized access. They must also respect a couple of rights of the data owners assured by the European Union law. Different data protection laws in different countries would disrupt the global exchanges. People could also be unwilling to have their personal information transferred to other countries. This arises when they become unsure about the data protection level in other nations. Therefore, the data Protection Directive becomes an important aspect of the European Union legislature. The 3rd Anti-money Laundering directive: this adoption of the directive meant to help in the protection of the financial system and other professions from being misused in terms of financing terrorism purposes and money laundering. The formation of Single Market and the breaking down of obstructions helps legitimate business. However, it may also upsurge the opportunities for financial crime and money laundering (Unger, 2013). As much as the treaties of European Union have facilitated in the harmonization of its member states, it is also important that the regulation of gaming and betting remain a priority to individual member states. The legal framework under which gaming and gambling should be practiced in the community lies on national laws. Therefore, it no longer matches the economic framework under which it should develop. This arises if the goals laid down in the Article 18 of the Treaty of the European Union are reached. This situation creates a barrier to the formation of company groups from different member states. The internal market’s accomplishments and the development it makes in the economic conditions and social conditions throughout the community mean that the trade barriers should be removed. It also means that the production structures should be modified to the community dimension. Therefore, companies which are not limited to fulfilling local needs, reorganize their businesses on a community scale. This control does not involve areas such as taxation, intellectual property, insolvency or competition. Therefore, the provisions of the Community law and the Member States’ are not applicable in those areas. They are also not applicable in areas covered by this regulation. The cooperation and restructuring of operations involving betting and gaming companies from discrete Member States gives rise to tax problems and, legal and psychological hurdles. Article 44 of the treaty of the European Union can approximate the Member States’ company laws using Directives. These Directives can be used to overcome some of these hurdles. However, such approximations do not release the betting and gaming companies governed by discrete legal systems from the responsibility to choose a company regulated by national laws. The Treaty does not allow the adoption of this Regulation or other powers of action apart from the ones in article 308. It is important to ensure that both the economic and legal unit of the business in the community corresponds. For this reason, terms should be made for the creation and should be side by side with the companies administered by a particular national law. The terms of such regulation will allow the formation and management of betting and gaming companies with a European dimension. This dimension should be free from obstacles brought about by the limited territorial application and the disparity of the national company law. Member states are required to make sure that the provisions which apply to all the European gaming and betting companies under this Regulation refrain from causing discrimination. Discrimination may be brought about by unjustified treatment of European companies. They should also not result to unbalanced barriers on the establishment of a European company. A gaming and gambling must be well managed and properly organized. It should keep in mind that there are two different systems that govern the public limited and public liability companies. Although a European company’s Statute should be permitted to choose between two systems, the responsibilities of those responsible for management and those accountable for the organization should be clearly defined. If the necessary objective to the legal rules which administer the European Union’s statute is to be reached without bias to any economic needs which may come up in the impending days, it should be possible to create the European Company statute. It is created by allowing gaming and gambling companies from diverse member states to unite or to create holding companies. These companies will enable legal persons and other companies to form joint holdings. On the other hand, it should be viable for public liability and public limited companies with a head office and registered offices in the community to convert itself into a statute of the European company without undergoing liquidation. This should be allowed so long as the company has a subsidiary in another member state apart from that of its enrolled office (Gerven, 2008). References Christoffersen, J. (2008). Fair balance: a study of proportionality, subsidiarity and primarity in the european Convention on Human Rights. Leiden [u.a.: Martinus Nijhoff Publishers. Gerven, D. (2008). The European Company. Cambridge: Cambridge University Press. Howells, G. G., & Micklitz, H. (2006). European fair trading law the unfair commercial practices directive. Aldershot, England: Ashgate Pub. Co. Kapteyn, P. (2008). The law of the European Communities and the European Union: with reference to changes to be made by the Lisbon Treaty. Alphen Aan Den Rijn: Kluwer Law International. Unger, B. (2013). Research handbook on money laundering. Elger: Cheltenham. Read More