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as to become equivalent. The time when the company
was merely regarded as a means of profit maximisation
has gone. The company has become an instrument of
social progress which can fulfil its functions only if the
forces of capital, management and labour are institu-
tionally joined together and work harmoniously and
smoothly within the framework provided by the law.
In the Commission's view, the European economy
should be built upon a system of co-operation between
capital and work rather than on confrontation and
conflict.
Shareholders' meetings
Apart from these minimum rules on workers' partici-
pation in management control, the Fifth Directive
defines the organisation of and procedures of share-
holders' meetings, the matters on which the shareholders
must decide, the conditions under which somebody may
act as proxy for shareholders, and the role of the
auditors. As you will appreciate, these proposals may
have to be reconsidered in the light of the accession to
the Community of the new members, and the Commis-
sion are certainly open to new suggestions and ideas.
It is certainly not easy to find appropriate solutions to
the problems of regulating the structure and affairs of
public companies, which we regard of great impor-
tance in view of the crucial part they play in the
economic life of the Community.
Why were so many Directives required?
Perhaps you are wondering why the European Com-
mission proposed several Directives and not just one or
two and why two or three more Directives are in the
making There are several answers to this.
Firstly, we cannot do everything at the same time.
Secondly, the objectives of the EEC Treaty can be
reached only gradually and step by step. The Commis-
sion has to take into account the economic, social and
political situation existing at a particular time. Priori-
ties have to be fixed and revised from time to time.
Finally, experience shows that the institutions of the
Community are not prepared and not willing to approxi-
mate the law on public companies at once and by one,
two or three Directives. On the other hand we agree
that co-ordination should not be done piecemeal. Sub-
jects which belong together should be approximated at
the same time and if possible by the same Directive.
National Companies Acts should not have to be changed
too often. The Commission is trying to meet these
demands by proposing not many but few directives,
each of which would co-ordinate a substantial and
possibly closed part of company law. In addition too
frequent changes in company law could be avoided by
requiring that effect is to be given to a group of two
directives simultaneously.
Approximation of principles or of laws?
Another criticism often raised is that detailed approxi-
mation may produce unintended and unforeseen dis-
tortions when judged by different legal systems and in
different national circumstances. Instead of trying to
achieve complete alignment, the Community should
concentrate on approximating those elements—as yet
undefined—which would be generally regarded as
essential to a common system of company law.
Directives should initially be confined to stating cer-
tain basic principles, and should leave each Member
State free to impose more exacting requirements in
accordance with its own current standards. If approxi-
mation was not to go into some detail but confined to
principles only, the danger of distortions became very
real. Experience shows that no Member State so far
has been ready to accept that approximation should
be limited to principles or general rules because they
would not be applied with the same result in the
different Member States. In addition, every rule has its
exception. Without defining such exceptions, the law
would become too stringent; and in defining such ex-
ceptions, one has to go into some detail. Thus detailed
co-ordination does not necessarily mean rigid rules, but
rather to build in flexibility by taking care of special
situations. In fact, government experts do insist in
many cases much more than the Commission's staff on
detailed regulation.
Minimum, maximum and fixed rules
Another problem frequently discussed is whether a
Directive should just contain minimum rules or fixed
rules and whether it should offer several equivalent
solutions leaving the choice to the national legislator.
I think there is no general answer to these questions.
They should be decided case by case in a pragmatic
way. Some articles give minimum requirements, some
maximum requirements. Some give a choice to the
national legislator, others do not. But all the Commis-
sion's proposals are based on the belief that something
more than an approximation around the average re-
quirement is needed, and every proposal has added at
least one more potential requirement to each Member
State's array. If approximation of company law is
merely successful as a technical exercise it would be a
failure. We strive for more. The spirit of the new com-
pany law in Europe must reflect the spirit of the new
economic order, an order built on the concept of social
responsibility.
EEC and Fundamental Rights
By JOHN TEMPLE LANG, M.A., Solicitor
Under the Third Amendment to the 1937 Consti-
tution of Ireland, which enabled Ireland to join the
European Communities, no provision in the Consti-
tution can invalidate any law enacted, act done or
measure adopted by the Community institutions, or by
the State if the law, act or measure is necessitated by
the obligations of membership of the Communities.
This amendment to the Constitution enabled the
Oireachtas to confer legislative, executive and judicial
powers on the Community institutions, and this was
done by the European Communities Act, 1972, in
accordance with the Treaty of Accession between the
nine States which are now members of the Community.
The constitutional amendment went further than this,
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