Political Yardstick Competition and Corporate Governance in the European Union

ECGI - Law Working Paper No. 38/2005This Working Paper is based upon a draft prepared for the EU Corporate Law Making Conference (Cambridge, October 29-30, 2004) organized by Harvard Law School and the Swiss Federal Institute of Technology (ETH Zurich)http://papers.ssrn.com/sol3/papers.cfm?abstract_id=730385The question whether regulatory competition in the area of company law could take place in the European Union (EU) in a way similar to the form it takes in the United States (the Delaware phenomenon) is topical because of some recent judgments of the European Court of Justice and various documents and projects produced by the European Commission. That question is typically discussed, however, as if voters did not count and as if competition among governments was exclusively based on the mobility of firms across jurisdictions. But intergovernmental competition can also take the form of yardstick, or relative performance, competition. Voters and democratic politics then become essential.Voters assess the performance of incumbents by comparing what obtains in their own and in other jurisdictions. The first part of the paper is devoted to spelling out some characteristics of the mechanism. It notes in particular that, depending on circumstances, yardstick competition may provide office-holders with the wrong incentives. This result is important in the EU context. The second part stresses some aspects of the path followed by European integration. One property is that Europe is under construction, entailing a tendency for integration to be monotonous. The process of integration can slow down or stall but seldom if ever regress. Another feature is the enduring reliance on the internal market commitments and their legal implications. Structural characteristics of the integration process such as these have consequences on yardstick competition as well as on the kind of policies to be expected from the EU. The third and fourth parts of the paper are devoted to corporate governance and law making in the EU context and in the light of the foregoing analysis of yardstick competition. Two points are stressed. The nature of yardstick competition among the governments of the member countries may explain that differences in company law and corporate governance can subsist without preventing a strong convergence of economic outcomes. Yardstick competition between the EU as a whole and other parts of the world, however, is likely to start a dynamic process that could lead to the centralization of a large part of company lawmaking at the EU level and the emergence of a distinctive legal environment for firms doing business in Europe