The EC Commission's strategy for the modernization of the rules implementing Articles 81 and 82 EC Treaty has unfolded in three acts. The focus of the first act, the White Paper of 28 April, 1999, is on Article 81(3). The Commission proposes to abolish the Regulation 17 rules for the implementation of Article 81(3) and its own exclusive power to grant exemptions. In the future, Article 81 is to be interpreted as a directly applicable exception system to be applied by the Commission, national competition authorities, and national courts. A Council regulation will extend the direct applicability so far limited to Article 81(1) to Article 81(3). Consequently, there is no provision for separate exemption decisions and there are no “detailed rules” for the supervision of exempted agreements as called for by Article 83(2b).

The Council of the European Union recently adopted a modified proposal for an EU Directive on takeovers. As a central feature the new proposal contains a provision imposing on the management of a target company a duty of passivity (Neutralitätspflicht) once a public bid for the shares of the target company has been made. This duty of passivity in the face of a hostile offer has been a key feature of the first proposal for an EU Takeover Directive in 1989 and the amended proposals of 1990, 1996, and 1997. It is a central element of the UK City Code on Takeovers and Mergers that from the beginning served as a model for the drafts of the EU Takeover Directive and can still be detected as such in the current proposal. The rule of passivity also found its way into the laws of many Member States that enacted takeover laws in anticipation of the imminent passing of a Takeover Directive. In Germany, a takeover statute is still missing. However, German corporate law scholars widely support the rule of passivity. Moreover, the rule of passivity is already in place in the non-binding German Takeover Code, a non-government voluntary regulation of takeovers to which about 60-70 % of the stock exchange listed companies in Germany have subjected themselves. Finally, the German government this year presented a draft proposal for a German Takeover Act that also contains a duty of passivity. Thus it seems fair to say that until very recently the rule of passivity has been a widely accepted, integral part of European takeover law.

Expept for the Stock Exchange Act and a few other capital market-oriented laws, the development of a capital market law began in the last decade and is fundamentally based on European law, although it is nevertheless inspired by Austrian peculiarities. This new field of law is not embodied in one uniform act, but consists of different legislative acts. The Takeover Act 1998 represents an important cornerstone. The other relevant sources are the Stock Exchange Act (Börsegesetz) 1989, which contains the obligations of disclosure (immediate disclosure of price-sensitive information, disclosure of major holdings) and regulates the prohibition of abuse of insider information; the Capital Market Act 1991 (Kapitalmarktgesetz – KMG 1991); and, finally, the Austrian Securities Supervision Act (Wertpapieraufsichtsgesetz 1996), which establishes a special supervising authority for the capital market. The Austrian Securities Authority, which is the main supervising authority for the secondary market, has amongst its tasks to prevent the abuse of insider information, to supervise the obligations of disclosure, and to cooperate closely with the stock exchange and other authorities. The Austrian Securities Authority is not responsible for supervising public takeover offers. However, it is obliged to cooperate with the Takeover Commission.

There are numerous differences in the legal forms of convertible bonds and option bonds in Europe, both between countries and between the time sequences. These differences are a result of the different tax laws and of differing conditions in the markets for equity and outside capital. At this point, an overview is to be given, going back to the analysis of the most important European systems in the special Zeitschrift für Unternehmens- und Gesellschaftsrecht [hereinafter: ZGR] issue Convertible and Option Bonds in Germany and Europe, published jointly by Marcus Lutter and the present author. It will concentrate on the legal issues regarding convertible and option bonds as an instrument of corporate financing. Therefore, a question to be disregarded, for example, is to what extent convertible or option bonds can be used as an instrument to motivate executives and employees, in particular where the issue of naked warrants is regarded as inadmissible. The overview will be limited essentially to an analysis of the contributions in the abovementioned special ZGR issue. For this reason, with only a few exceptions, only the legal systems in Germany, Austria and Switzerland, France, Belgium and the Netherlands, Italy, Spain and Portugal as well as English and Swedish law are included in the study, and only the legal issues discussed in these contributions are taken into account. Thus, if a solution is discussed or emphasised here only for one country, this does not mean that it exists only in that country. Moreover, similarities as well as differences are not mentioned if they appear to be a matter of course; the point instead is to achieve “problem awareness”.

The EC Merger Regulation (ECMR) gives exclusive powers for the EC Commission to regulate large, pan-European mergers under the EC competition laws. The ECMR requires the Commission to declare mergers incompatible with the Common Market if they “create or strengthen a dominant position as a result of which effective competition is impeded”.

European competition law has influenced many national competition law systems. One of them is Greek competition law, which is already 23 years old. The development of the Greek competition law system is quite distinctive. This article gives an overview of Greek competition law by stressing the influence of European competition law upon it.

The private international law of business organisations is a difficult field. It is difficult in its core as well as at its periphery. The core question is the one of appropriate conflict rules for business organisations. The two best-known concepts are the incorporation theory and the seat theory. Either approach is followed by a number of states, but neither appears wholly persuasive. The discussion of appropriate conflict rules will also have to take into account concepts which modify the one or the other “theory” or try to combine elements of both. However, requirements for a satisfactory conflict rule in the field of the private international law of business organisations can already be defined (see infra section 2). An issue related to the core question arises due to the more specific requirements of European law. The creation of a business organisation involves the exercise of three rights guaranteed by the EC Treaty: the freedom of establishment (Articles 43 and 48), the freedom of capital transfer (Article 56) and the right of EU citizens to acquire shares on a non-discriminatory basis (Article 294). The impact of these provisions on national conflict rules is highly controversial. However, it seems clear that in the long run Member States will have to recognise companies validly formed in other Member States. Correspondingly it appears necessary to continuously harmonise the national laws of business organisations in important fields such as, for example, creditor protection. This harmonisation can be carried out by various means (see infra section 3). The periphery of our subject-matter addresses the question of the scope of the central conflict-of-laws rule for business organisations: which aspects of material law are included, and which follow different conflict-of-laws concepts? This question may be raised for matters as diverse as workers' codetermination rights and legal requirements for take-over bids. It is closely connected with the issues dealt with before: the better the necessary protection of creditors, investors and employees can be guaranteed independent of the status of a business organisation the less their respective interests can be used as an argument for or against the one “theory” of international company law or the other (see infra section 4).