Droit des affaires - Risques d'entreprise : quelle stratégie juridique ? -1 - 319

Recent Evolutions of the European Debate on Legal Capital

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strategies, while the fourth – that is that of the High Level Group – relies on all three strategies. Thus, in general, it seems that lower the importance of the balance sheet test the higher the groups of experts feel the necessity to introduce a framework rule on wrongful trading. Examining more into detail the role of wrongful trading as a safeguard against fraudulent insolvencies, and, thus, also as a tool of creditors’ protection, it is necessary to make two points. First, it remains controversial if this strategy, in the legal systems that adopt it, really deters directors from concluding transactions that could render the company insolvent 48. Second, it should be underlined that the rules on wrongful trading play a very different function if they operate in conjunction with a balance sheet test or if they represent an alternative to this test. This second point deserves particular attention. Also the Rickford Group recommends that “Member States should be free to retain the present law if the wish”, but it also adds that “solvency certification should be required in all cases and there should be an EU-wide prohibition on “wrongful trading”” 49. Thus, the alternative regime proposed by this group of experts does not prevent Member States from continuing to apply the framework of rules set forth by the Second Directive and the enhanced balance sheet test provided in Article 15 of this same Directive. A first consequence of the implementation of this alternative regime, thus, would probably be a stronger competition among Member States on the rules concerning legal capital, and a level playing field of the rules on wrongful trading. Another consequence would probably be the arising of important coordination problems between the company law and the insolvency law of the Member States, which may rely on different approaches to promote creditors’ protection. If, on the contrary and as it has been suggested by the High Level Group, the introduction of a framework rule on wrongful trading is understood as an additional protection for creditors that would operate in combination with the balance sheet test and the solvency test, probably there will not be an increase in the competition among Member States, but simply a level playing field. Thus, to better assess the proposals on the introduction of a framework rule on wrongful trading, it also fundamental to investigate the context in which this introduction is proposed.

48. For the practical significance of wrongful trading in the United Kingdom cf. H.C. HIRT (fn. 1), in particular 102 ff., and T. BACHNER, “Wrongful Trading” (fn. 1). 49. J. RICKFORD ed. (fn. 31), 921, 987 f.

Droit des affaires - Risques d'entreprise : quelle stratégie juridique ? -1

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