Legal Evolution and European Harmonisation of Company Law

The project will investigate post-implementation divergences between the legal systems of EU member states in areas supposedly harmonised by European company law directives, and will explain them with reference to an evolutionary theory of law as an autopoietic system. The interaction of European directives with national laws is a complex phenomenon. National doctrinal structures influence the ways in which lawyers from different jurisdictions understand the contents of the directives. Each directive will allow for a range of differing interpretations, not least because the text exists in 11 different language versions. On implementation the national legislator makes choices as to how the provisions will be framed. After this there may still be room for differing interpretations, and they will be narrowed down by subsequent case law and academic exposition. Importantly these selections will not be random, but will invariably be contingent on pre- existing legal concepts, held by lawyers in that particular jurisdiction. Through this process the legal system can retain, as far as possible, its inner coherence, but at the same time the harmonisation effect of the directive will be weakened. The project will systematically gather knowledge about such post-implementation divergences (focusing on England and Germany in particular). By studying national case law in areas of previous harmonisation measures, we shall find out what prompts doctrinal debates in one jurisdiction where lawyers elsewhere appear not to have a problem on the same point. The doctrinal approach will help us to understand the legal discourse in each of the systems "from within". The project will seek to explain these divergences with reference to an evolutionary theory of law as an autopoietic system. The theory will be applied in a novel manner concentrating on the role of legal doctrine as an element of stabilisation in the evolutionary process. The project will also study European company law harmonisation in the wider context of legal transplants, and it will contrast the usual small-scale, piece-meal approach typical of harmonisation measures with the more "holistic" transplantations of German company law to Austria and Poland. Finally, the project will draw conclusions for the future of European legal harmonisation.