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Vol. 41, Nº 78 (2023), 63-76
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Transformation of international
forms of legal regulation of corporate
relationships
DOI: https://doi.org/10.46398/cuestpol.4178.04
Volodymyr Gevko *
Oksana Brusakova **
Oleg Posykaliuk ***
Vasyl Hrudnytskyi ****
Stanislav Sieriebriak *****
Abstract
The purpose of the article was to analyze the international forms
of legal regulation of corporate relations and their consequent
transformation in the corporate law of the European Union EU
and Ukraine. The methods of this research were: monographic
analysis, analysis and synthesis, systematic, comparative and legal,
prospective and generalization. The formation and development
of the EU corporate legislation is analyzed. A comparative analysis
of the EU and Ukrainian corporate legislation in its dierent stages and
forms of adaptation in accordance with the EU legislation is also carried
out. It is concluded that modern EU corporate legislation is the result of the
historical development of EU law in general and, its transformation into a
specic, independent legal system. It is emphasized that company law in
the EU is increasingly subject to unication, and with the adoption of the
European Company Acts, the company law of the EU member states is also
subject to constant transformation. Ukraine, as a candidate to join the EU,
should implement measures aimed at adapting and unifying its corporate
legislation to EU laws.
Keywords: corporate law; European Union and Ukraine; corporate
governance; legal harmonization; legal unication.
*Postgraduate student of Academician F. H. Burchak Scientic Research Institute of Private Law and
Entrepreneurship of the National Academy of Legal Sciences of Ukraine, Kyiv, Ukraine. ORCID ID:
https://orcid.org/0000-0003-2716-8113
** PhD in Law, associate professor, Dean of the Faculty 6 of Kharkiv National University of Internal
Aairs, Kharkiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-8616-0424
*** PhD in Law, associate professor, senior researcher of Private Law Problems Department of the
Academician F. H. Burchak Scientic Research Institute of Private Law and Entrepreneurship of the
National Academy of Law Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-
0002-8841-8481
**** PhD in Law, associate professor, Associate Professor Department of History and Law, State Institution
of Higher Education “Donetsk National Technical University”, Lutsk, Ukraine. ORCID ID: https://
orcid.org/0000-0003-3161-4147
***** PhD in Law, associate professor of the Department of Jurisprudence, Faculty of Law, Volodymyr Dahl
East Ukrainian National University, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-7207-594X
64
Volodymyr Gevko, Oksana Brusakova, Oleg Posykaliuk, Vasyl Hrudnytskyi y Stanislav Sieriebriak
Transformation of international forms of legal regulation of corporate relationships
Transformación de las formas internacionales de
regulación jurídica de las relaciones corporativas
Resumen
El propósito del artículo fue analizar las formas internacionales
de regulación legal de las relaciones corporativas y su consecuente
transformación en el derecho corporativo de la Unión Europea UE y
Ucrania. Los métodos de esta investigación fueron: análisis monográco,
análisis y síntesis, sistemático, comparativo y jurídico, prospectivo y
la generalización. Se analiza la formación y desarrollo de la legislación
empresarial de la UE. También se realiza un análisis comparativo de la
legislación societaria de la UE y Ucrania, en sus diferentes etapas y formas
de adaptación, de acuerdo con la legislación de la UE. Se concluye que la
legislación empresarial moderna de la UE es el resultado del desarrollo
histórico del derecho de la UE en general y, su transformación en un sistema
legal, especíco e independiente. Se enfatiza que la legislación societaria en
la UE está cada vez más sujeta a unicación, y con la adopción de los Actos
Societarios Europeos, la ley societaria de los Estados miembros de la UE
también está sujeta a transformación constante. Ucrania, como candidato a
unirse a la UE, debe implementar medidas destinadas a adaptar y unicar
su legislación corporativa a las leyes de la UE.
Palabras clave: derecho societario; Unión europea y Ucrania; gobierno
corporativo; armonización jurídica; unicación legal.
Introduction
The study of the forms of legal regulation of corporate relationships is
extremely relevant due to the tasks provided in the National Program for
the adaptation of Ukrainian legislation to the EU laws of 2004 and upon
Ukraine’s conclusion of the Association Agreement with the EU of 2014, as
well as in view of Ukraine’s candidate status for EU membership received
on June 23, 2022.
European integration processes strengthen the need to bring the national
legislation of Ukraine into compliance with the norms of EU corporate law.
At the same time, the harmonization of the corporate legislation of Ukraine
with the relevant EU laws is one of the main and essential parts of the
indicated programs and agreements.
Transformational changes in the forms of legal regulation of corporate
relationships in the EU have a long history, which aects the further
development of this area of EU law. Besides, the vector of the development
of EU corporate law has a signicant impact on the harmonization and
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CUESTIONES POLÍTICAS
Vol. 41 Nº 78 (2023): 63-76
formation of corporate legislation of Ukraine not only in view of the actively
implemented European integration processes, but also in view of the already
established practice of legal regulation of such relationships in Ukraine.
In view of this, the transformation of the corporate law of the EU and
Ukraine should be considered in a complex and interconnected manner,
which can help to correctly outline the directions, forms and methods of
harmonization of corporate law of Ukraine with EU laws. Therefore, the
purpose of this article is to analyze the forms of legal regulation of corporate
relationships and their transformation in the corporate law of the EU and
Ukraine.
1. Methodology
The methodological basis of the research is general scientic and
special methods of scientic cognition, the use of which made it possible
to form scientically based conclusions and recommendations. The
dialectical method made it possible to get the general characteristics of
the forms of legal regulation of corporate relationships in their integrity
and development. The method of monographic analysis made it possible
to clarify a range of problematic issues related to the transformation of the
forms of legal regulation of corporate legal relationships in the EU and to
consider the perspectives of harmonizing domestic corporate law with EU
laws.
The method of analysis and synthesis made it possible to generalize
information about the existing varieties of forms of legal regulation of
corporate relationships, while studying those legal instruments of corporate
law that are capable of contributing to the improvement of corporate
governance in general.
The method of theoretical generalization assisted to study the elements
of the mechanism of legal regulation in the eld of corporate governance,
which are used to improve its institutional and legal foundations. The
comparative and legal method made it possible to carry out a comparative
and legal analysis of EU norms in the eld of corporate law and to clarify a
range of issues that Ukraine has to implement in order to harmonize with
EU laws.
The systematic method made it possible to conduct a study of the forms
of regulation of corporate relationships as a dynamic system consisting of
separate subsystems and elements. Tendencies in the development of the
forms of legal regulation of corporate relationships have been studied due
to the method of forecasting, in order to improve the results of corporate
governance. The method of generalization made it possible to draw
conclusions based on the conducted research.
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Volodymyr Gevko, Oksana Brusakova, Oleg Posykaliuk, Vasyl Hrudnytskyi y Stanislav Sieriebriak
Transformation of international forms of legal regulation of corporate relationships
2. Results and Discussion
2.1. Research on the transformation of the forms of legal
regulation of corporate relationships in the EU
The legal forms of regulation of corporate relationships that exist in
one or another country dier among themselves due to such principles
as the legal system the country belongs to, its historical development and
economic situation, mental and cultural characteristics of the country’s
population, etc. For example, the model of corporate governance developed
in the USA is fundamentally dierent from the European one in terms of
construction and functioning (Luts et al., 2010).
At the same time, corporate relationships almost in all countries are
regulated by regulatory legal acts, local acts of corporations, corporate
agreements and corporate customs. The impact of court decisions (court
precedents) in the legal regulation of corporate relationships is determined
depending on the legal system the state belongs to.
Researchers of EU corporate law claim that EU law in the early days had a
predominantly international legal character. However, it evolved over time
into a coherent system of national law being separated from international
law. At the same time, EU corporate law has not completely merged with
domestic law, but is an independent legal system with its own sources,
forms of law-making and law enforcement, specic mechanisms for the
protection of corporate rights. Therefore, EU law is the unique system that
combines features of both domestic and international law (Kibenko, 2005).
In general, EU corporate legislation (legislation on companies) includes
the provisions of incorporation deeds – the Rome Treaties establishing the
EU, EU directives, EU regulations, decisions as individual and legal acts,
recommendations, decisions of the EU Court (Savetchuk, 2018). Besides,
EU corporate law is characterized by a division into primary (founding
treaties (Treaties of Rome)) and secondary (directives, regulations,
decisions, recommendations, agreements, principles, decisions of the EU
Court) (Law of Ukraine ‘On the National Program of Adaptation of the
Legislation of Ukraine to the Legislation of the European Union’, 2004).
It is also worth mentioning that the EU has been working on improving
and harmonizing corporate legislation for a long time aimed at unifying
corporate rules in the national legislation of EU Member States, as well as
those that wish to join the EU in the future (for example, Ukraine).
While analyzing the history of the formation and development of
EU corporate law, it is customary to distinguish several periods in the
transformation of EU legislation on companies: 1) the rst stage – from
1968 till 1989, when the rst nine directives on the regulation of corporate
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Vol. 41 Nº 78 (2023): 63-76
relationships were adopted; 2) the second stage – from 1989 till 1999, which
is called the crisis period; 3) the third stage – from 1999 till 2011, when
the Action Plan to modernize on companies and to strengthen corporate
governance in the EU was adopted, and a number of new Directives were
adopted; 4) the fourth stage – from 2012 to the present day, which is
characterized by further amendments in EU corporate legislation (Shumilo
and Suleimanov, 2021).
However, we consider it expedient to oer our own periodization of
the stages of EU corporate law development. Thus, the rst stage, which
we suggest to call the “establishment of EU corporate law”, should be
considered the period that began at the end of the 1950s with the adoption
of the primary EU legislation.
In particular, it is about the signing of the so-called “Treaties of Rome”
on the establishment of the EU, among which the Treaty of Rome on the
establishment of the European Economic Community – EEC concluded
on March 25, 1957 (entered into force on January 1, 1958) is important
for corporate law (currently under revision Treaty of Rome or EEC Treaty
(ocially the Treaty establishing the European Economic Community)
(EEC Treaty, 1957). The indicated period lasted until 1968, that is, until the
moment of adoption of the secondary EU legislation.
Foundations for further formation of EU corporate legislation are
directly laid down in the Treaty of Rome itself. It clearly shows the so-called
components of the common market, which were called the “four freedoms”
– the free movement of goods, people, services and capital. The main
element of such free movement was the “freedom to establish centers of
entrepreneurial activity” (Kibenko, 2005). In particular, in accordance with
the provisions of the Art. 43 of the Treaty of Rome:
1. it is prohibited to restrict the freedom of entrepreneurial activity of
citizens of one Member State on the territory of another Member
State;
2. it is prohibited to apply restrictions to citizens of any Member State
on the creation of representative oces, branches or subsidiaries on
the territory of any Member State;
3. freedom of entrepreneurial activity includes the right to start
and conduct independent labor activities, as well as to create and
manage enterprises, in particular partnerships, under the conditions
established for its citizens by the law of the Member State, where
such entrepreneurial activity is carried out, taking into account the
provisions of the subsection on the capital movement.
Part 1 of the Art. 44 of the Treaty of Rome stipulates the obligation of
EU agencies to contribute to ensuring the freedom of establishment. One of
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Volodymyr Gevko, Oksana Brusakova, Oleg Posykaliuk, Vasyl Hrudnytskyi y Stanislav Sieriebriak
Transformation of international forms of legal regulation of corporate relationships
the measures of such assistance, in accordance with p. “g” of Part 2 of the
Art. 44 is the coordination of guarantees to the necessary extent required
by Member States from companies and rms to protect the interests of
their members and other persons. The process of coordination provided by
this paragraph was later called “harmonization of corporate law” (Kibenko,
2006).
The Council of the EU also adopted the General Program for the
Removal of Obstacles to Freedom of Establishment in 1962 in order to fulll
the provisions of the Treaty of Rome. This document became the basis for
the adoption of the rst EU Directives on the freedom of establishment of
certain types of legal entities, for example the Council Directive 64/225/
EEC “On the abolition of restrictions on the freedom of establishment and
the freedom to provide services in the eld of reinsurance and retrocession”
(Council Directive 64/225/ EEC, 1964).
The second stage, which began in 1968 and lasted until 1999, we oer
to call the “establishment of EU corporate law”. It is the period, when the
rst main directives and regulations on EU corporate law were formed and
adopted. Thus, according to the content of the Art. 249 of the Treaty of
Rome, the European Parliament together with the Council, the Council
and the Commission shall make regulations, issue directives, create
recommendations and provide conclusions in order to carry out the tasks
and in accordance with the provisions of this Treaty.
The regulation has general application. It is binding in all its elements
and directly applicable in all Member States. The Directive is binding for
each Member State to which it concerns as to the results to be achieved, but
leaves the national authorities entirely free to choose the form and means of
achieving these results. The decision is binding in all its elements on those
to whom it concerns. Recommendations and conclusions are not legally
binding (Treaty establishing the European Economic Community, 1957).
Several important directives were prepared during the period from 1968
till 1999, as part of the formation of the new EU corporate law, namely:
• The First Directive of the Council of March 9, 1968 “On the
coordination of guarantees required by Member States from
companies within the content of p. 2 of the Art. 58 of the Treaty in
order to protect the interests of the members and third parties, with
a view to establishing the equality of such guarantees throughout
the Community”;
• The Second Directive of the Council of 13 December 1976 “On
coordination of guarantees required by Member States from
companies within the content of Part 2 of the Art. 58 of the Treaty,
in order to protect the interests of the members and third parties,
with regard to the creation of joint-stock companies, preservation
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CUESTIONES POLÍTICAS
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and change of capital in order to ensure the equality of application
of such guarantees”;
• The Third Directive of the Council of 9 October 1978, based on p. (g)
of Part 3 of the Art. 54 of the Treaty “Regarding the merger of open
joint-stock companies with limited liability companies”;
• The Fourth Directive of the Council of 25 July 1978, based on the
Art. 54 (3) (g) of the Treaty “On the annual nancial reporting of
certain types of companies”;
• The Sixth Directive of the Council of 17 December 1982 “Regarding
the division of open joint-stock companies with limited liability”;
• The Seventh Directive of the Council of 13 June 1983 “On
consolidated reporting”;
• The Eighth Directive of 10 April 1984 “Regarding the approval
of persons responsible for the mandatory audit of accounting
documents”;
• The Eleventh Directive of the Council of 21 December 1989 “On
requirements for the disclosure of information by branches started
in a Member State by companies of certain types regulated by the
law of another state”;
• The twelfth Council Directive of 21 December 1989 on limited
liability companies with a single member is aimed at legitimizing
single-member limited liability companies within the EU (EU
Council Directives, n/y).
The period from 1999 till 2017 should be considered as the third
stage of the formation of EU corporate legislation, which we oer to call
“modernization of EU corporate law”. We note that the work in the EU
on the harmonization of corporate legislation in 1990s faced signicant
resistance from certain Member States regarding such controversial issues
as the participation of hired employees in company management and the
structure of management bodies, in particular, a single-level body (like in
the Great Britain) or a two-level body (board and supervisory board, like
in Germany) and some other issues. The adoption of the Action Plan on
corporate law reform was an attempt to resolve this controversial situation
(EU legislation on companies, n/y).
Besides, the following directives were also adopted during the specied
period of the development of EU corporate law: the Thirteenth Directive of
the European Parliament and the Council of 21 April 2004 “On Takeover
Bids”, which regulates the acquisition of a signicant block of shares
(takeover) of open joint-stock companies on the territory of the EU; The
Tenth Directive of 26 October 2005 “On cross-border mergers of limited
70
Volodymyr Gevko, Oksana Brusakova, Oleg Posykaliuk, Vasyl Hrudnytskyi y Stanislav Sieriebriak
Transformation of international forms of legal regulation of corporate relationships
liability companies”, which provides the procedure for the merger of
companies with registered oces in dierent EU countries (EU Council
Directives, n/y).
The fourth stage is the period from 2017 to the present day. We
oer to call it “codication of EU corporate law”. It was marked by the
implementation of a systematic codication of EU corporate law. A large
number of directives and their constant amendments, as well as the rules
that needed some updating or improvement due to their ineectiveness
in practice, led to the fact that most of the Directives on corporate law
were incorporated into Directive 2017/1132, which could be safely called
a kind of “Code of EU corporate law”. Thus, the European Parliament and
the Council adopted Directive 2017/1132 “Regarding certain aspects of
company law (codication)” on June 14, 2017.
This Directive establishes measures for: online establishment of
companies, online registration of branches and online submission of
documents and information by companies and branches; requirements for
disclosing information about branches started in a Member State by certain
types of companies governed by the law of another state; merger of public
joint-stock companies; cross-border conversion, cross-border merger and
cross-border division of limited liability companies; division of public joint-
stock companies, etc.
However, the adoption of the EU Corporate Code was not the end for
the modernization of EU corporate law. Thus, over time, the European
Parliament and the EU Council adopted Directive 2019/2121/EU amending
Directive (EU) 2017/1132 on cross-border transformations, mergers and
divisions. As well as Directive (EU) 2019/1151 on the use of digital tools and
processes in company law, which also amends the above-mentioned Code
(EU Council Directives, n/y).
It should be noted that the caselaw of the EU Court served as the basis
for the changes. Therefore, due to caselaw, the European Parliament and
the Council of the EU created a “company law package”, which aimed to
establish “more simple and less burdensome rules for companies regarding
registrations and cross-border transformation” (Shumilo and Suleimanov,
2021: n/p).
However, despite their importance for EU law as EU regulations, each
EU Member State must implement the provisions of the directives into
their national legislation in order they become binding for EU Member
States. Therefore, there is a situation when EU corporate law directives,
due to their dispositive nature, are not always applied by countries or are
applied in a certain interpretation. Thus, in practice, we will continue to
have dierent forms of legal regulation within the EU countries, which
are similar in content to corporate relationships and in some aspects
signicantly dierent.
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According to O. Kibenko, various types of regulation in the eld of
corporate law, despite the carried-out harmonization, remain in the
EU countries, and among them we can distinguish: the German model
(Germany, Austria, Switzerland); the French model (France, Belgium,
Spain); the Anglo-Saxon model (Great Britain, Ireland); the Scandinavian
model (Finland, Sweden, Denmark); the Eastern European model
(countries of the former socialist camp) (Kibenko, 2006).
In this perspective, corporate governance rules that would be mandatory
for all EU members become relevant, and these are the EU Regulations.
According to the Art. 249 of the Treaty of Rome the Regulations have general
application unlike Directives. The Regulations are binding in all the elements
and have direct application in all Member States (Treaty establishing the
European Economic Community, 1957). The Regulations are direct acts,
that is they, unlike directives, grant individuals with subjective rights and
obligations and do not require additional implementation into the national
legislation of EU Member States (Corporate law, 2020).
A number of Regulations were adopted regarding the legal regulation of
corporate relationships in the EU, which created so-called “supranational”
legal entities operating within the EU, regardless of whether they are
provided in the legislation of EU Member States or not. Thus, the Council
Regulation (EEC) No. 2137/85 of 25 July 1985 established the European
Economic Interest Grouping (EEIG); the Council Regulation (EC) No.
2157/2001 of 8 October 2001 – European Society (SE); the Council
Regulation (EC) No. 1435/2003 of 22 July, 2003 – European Cooperative
Society (SCE) (Corporate law, 2020).
As of July 2009, about 400 such European legal entities were registered
in Europe (EU legislation on companies, n/y). The procedure for mergers
and acquisitions of companies within the EU is regulated by another EU
Regulation No. 139/2004 on the control of concentrations of enterprises
(Savetchuk, 2018).
The caselaw of the EU Court has an extremely large inuence on the
forms of legal regulation of corporate relationships in the EU. Certain
scholars, assessing the impact of the decisions of the EU Court on the
formation of EU law, come to the opinion that its decisions are an impetus
for the formation of EU corporate law (Kibenko, 2005) and a constant
generator of new ideas that are used to improve EU corporate law (Shumilo
and Suleimanov, 2021).
All other corporate acts within the EU, such as recommendations,
conclusions, principles are mainly of a recommendatory nature and are
auxiliary to the main EU legislation. Therefore, based on the criterion of
the signicance of EU corporate acts for the Member States, EU corporate
legislation can be divided into: main (regulations, directives, decisions of
72
Volodymyr Gevko, Oksana Brusakova, Oleg Posykaliuk, Vasyl Hrudnytskyi y Stanislav Sieriebriak
Transformation of international forms of legal regulation of corporate relationships
the EU Court) and auxiliary (recommendations, conclusions, principles,
etc.).
2.2. Peculiarities of adapting the forms of legal regulation of
corporate relationships in Ukraine to EU corporate law
As for Ukraine, the adaptation of its corporate legislation to EU laws
also has a long history, which should be divided into the following stages.
The rst stage, which initiated cooperation in the coordinational work
on the rules for the establishment and operation of companies in the EU
and Ukraine, is Ukraine’s signing and ratication of the Partnership and
Cooperation Agreement between Ukraine and the European Communities
and their Member States in 1994 (it entered into force on March 1, 1998)
(Law of Ukraine ‘On Ratication of the Agreement on Partnership and
Cooperation between Ukraine and the European Communities and their
Member States’, 1994).
The Section Four of the Agreement contains provisions aecting
entrepreneurial activity and investments. At the same time, Chapter 2 of
this Section of the Agreement regulated the conditions aecting the creation
and operation of companies.
The eorts of the parties to adapt their legislation were dened in the
Art. 51 of the Agreement, where the parties recognized that the convergence
of existing and future legislation of Ukraine with EU laws is an important
condition for strengthening economic relationships between Ukraine and
the EU. Ukraine will implement measures to ensure that its legislation is
gradually brought in line with EU laws (Law of Ukraine ‘On Ratication of
the Agreement on Partnership and Cooperation between Ukraine and the
European Communities and their Member States’, 1994).
The EU approved a joint strategy for Ukraine later, at this stage, the
EU supported the process of economic transformation in Ukraine and
the gradual approximation of Ukrainian legislation to EU laws in certain
priority areas at the Helsinki Summit on December 11, 1999. In addition,
the strategic plans for the integration of Ukraine into the EU and the
adaptation, and in fact the unication of the legislation of Ukraine to the
EU laws, were also conrmed by a number of Decrees of the President of
Ukraine and regulatory acts of the Cabinet of Ministers of Ukraine, as well
as at international events – “Ukraine – European Union” Summits in the
period from 1998 to 2003.
Signicant changes are taking place in the corporate legislation of
Ukraine during this time. The new Civil and Commercial Codes of Ukraine
were adopted at the end of 2003. Those Codes contained entire Sections
focused on the issues of creating and terminating activities of companies in
Ukraine, the issues of corporate governance of legal entities, as well as the
rights and obligations of their members.
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They dened the concepts of corporate rights and corporate legal
relationships. At the same time, the simultaneous adoption of those two
Codes did not avoid the creation of certain contradictions during the
regulation of corporate legal relations. The existence of various forms of
legal regulation of corporate legal relations caused a lively discussion
among lawyers and scholars who study corporate legal relationships.
Unfortunately, the legislator, often not considering the opinion of scholars,
regularly amends the relevant corporate legislation at the level of laws,
introducing constant “innovations”, which sometimes have nothing in
common, and sometimes even contradict the principles of corporate
governance that are practiced in the EU.
The Ukraine’s adoption of the National Program of Adaptation of the
Legislation of Ukraine to the Legislation of the European Union in 2004
(Law of Ukraine “On the National Program of Adaptation of the Legislation
of Ukraine to the Legislation of the European Union”, 2004) can be
considered as the second stage of the adoption of Ukraine’s corporate
legislation to EU laws. The specied Program has already contained certain
algorithms and the Action Plan, in particular regarding the improvement of
corporate legislation.
Such key corporate regulatory legal acts as the Laws of Ukraine “On
Securities and the Stock Market” of 2006, “On Joint-Stock Companies” of
2008, “On the Institution of Joint Investment” of 2012, “On the Depository
System of Ukraine” of 2012 and others were adopted during this period.
In addition, this period is also characterized by the fact that all corporate
disputes in Ukraine are concentrated within one jurisdiction – commercial
courts. Such a step has signicantly improved the situation on the protection
of corporate rights and interests within judicial proceedings, eliminating
the existing “competition of judicial decisions” in corporate disputes that
existed before that.
The third stage of adaptation of the corporate legislation of Ukraine to EU
laws became more active with the Ukraine’s conclusion of the Association
Agreement with the EU in 2014 (Law of Ukraine ‘On Ratication of the
Association Agreement between Ukraine, on the one hand, and the European
Union, the European Atomic Energy Community and their Member States,
on the other hand’, 2014) and lasts till now.
The adoption of the Law “On Limited and Additional Liability
Companies” in 2018 is a signicant event at this stage. Besides, the war in
Ukraine and the granting of EU candidate status to Ukraine on June 23,
2022 (Grant EU candidate status to Ukraine and Moldova with out delay;
Ukraine has been granted candidate status for EU membership, 2022)
strengthened the need of adaption Ukrainian legislation to EU laws. At the
same time, the harmonization of the corporate legislation of Ukraine with
74
Volodymyr Gevko, Oksana Brusakova, Oleg Posykaliuk, Vasyl Hrudnytskyi y Stanislav Sieriebriak
Transformation of international forms of legal regulation of corporate relationships
the relevant EU laws is one of the main and essential parts of the indicated
above programs and agreements. Therefore, thorough work to improve the
corporate legislation of Ukraine is currently going on.
As a positive, we should note the adoption by Ukraine of the new version
of the Law of Ukraine “On Joint-Stock Companies” on July 27, 2022. The
provisions of the indicated Law were developed, in particular, taking into
account corporate law and the experience of corporate legal relationships
in the EU.
The mentioned Law is aimed at improving and further harmonizing
the legislation on companies, in particular by: introducing a mechanism for
conducting general meetings with the use of electronic voting; bringing the
norms on shareholder representation into compliance with EU legislation,
in particular the norms of the Directive 2007/36/EU of the European
Parliament and the Council of 11 June 2007 on the exercise of certain rights
of shareholders in listed companies; the possibility of introducing a single-
level structure of company governance in joint-stock companies; settlement
of the issue of liability of ocials of a joint-stock company; bringing the
norms on mergers, acquisitions, spin-os and divisions of joint-stock
companies into compliance with the norms of the Directive 2017/1132/EU
of 14 June 2017 regarding some aspects of legislation on companies.
Currently, the work of a group of scholars and MPs on improving the
legal regulation of corporate relationships in the Civil and Commercial
Codes of Ukraine is also going on. It is about the so-called group on the
“Recodication of the Civil Code of Ukraine”. Nowadays, there are already
certain developments, regarding which there are ongoing discussions
among experts and professionals. Some suggestions of the group have
been already submitted for consideration to the legislator in the form of
draft amendments to laws. We believe that the mentioned draft laws must
necessarily contain the positive experience that the EU has gained in EU
corporate law.
Conclusion
The corporate legislation of the EU was developed as a result of the
development of EU law in general and went through the transformation from
international to a separate specic and independent legal system, which is
characterized by the stages of establishment, harmonization, improvement
and codication. Given this, the following stages should be distinguished
in the transformation of EU corporate law: the rst stage – formation of
EU corporate law (1957-1968); the second stage – establishment of EU
corporate law (1968-1999); the third stage – modernization of EU corporate
law (1999-2017); the fourth stage – codication of EU corporate law (2017
- till now).
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Vol. 41 Nº 78 (2023): 63-76
The adaptation of the corporate legislation of Ukraine to the EU
corporate law also has its long history, which should be divided into the
following periods: the rst stage – signing and ratication by Ukraine in
1994 of the Partnership and Cooperation Agreement between Ukraine
and the European Community and its Member States; the second stage
– the adoption of the National Program for the adaptation of Ukrainian
legislation to EU laws in 2004; the third stage – Ukraine’s conclusion
of the Association Agreement with the EU in 2014 till now. This stage is
characterized by the process of active adaptation of Ukrainian corporate
legislation to EU laws.
Bibliographic References
COUNCIL DIRECTIVE 64/225/EEC. 1964. on the abolition of restrictions on
the freedom to establish activities and the freedom to provide services in
the eld of reinsurance and retrocession. Available online. In: https://
zakon.rada.gov.ua/laws/show/994_199#Text. Consultation date:
11/03/2023.
EU COUNCIL DIRECTIVES. MJU COMPANY LAW. N/Y. Available online. In:
https://minjust.gov.ua/m/str_45877. Consultation date: 11/03/2023.
EU LEGISLATION ON COMPANIES. N/Y. Material from the free encyclopedia.
Available online. In: https://uk.wikipedia.org/wiki/%D0%97%D0%B0%
D0%BA%D0%BE%D0%BD%D0%BE%D0%B4%D0%B0%D0%B2%
D1%81%D1%82%D0%B2%D0%BE_%D0%84%D0%A1_%D0%BF%
D1%80%D0%BE_%D0%BA%D0%BE%D0%BC%D0%BF%D0%B0%
D0%BD%D1%96%D1%97#cite_note-6 . Consultation date: 11/03/2023.
EUROPEAN PARLIAMENT. 2022. “Grant EU candidate status to Ukraine
and Moldova with out delay, MEP sdemand”. European Parliament
President’s website. Available online. In: https://www.europarl.europa.
eu/news/en/press-room/20220616IPR33216/grant-eu-candidate-
status-to-ukraine-and-moldova-without-delay-meps-demand.
Consultation date: 11/03/2023.
GLADIO, Yulia; MARTYN, Volodymyr; SAMAGALSKA, Justyna. 2020.
Corporate law. Textbook; edited by Prof. Yavorska, O. Drohobych: Kolo,
Poland.
KIBENKO, Olena. 2005. “European Corporate Law at the Stage of Fundamental
Reform: Prospects for the Use of European Legislative Experience in the
Legal Field of Ukraine”. Series: “Legal Advisor”. Strike. Kharkiv, Ukraine.
76
Volodymyr Gevko, Oksana Brusakova, Oleg Posykaliuk, Vasyl Hrudnytskyi y Stanislav Sieriebriak
Transformation of international forms of legal regulation of corporate relationships
KIBENKO, Olena. 2006. “The current state and prospects of legal regulation
of corporate relations: a comparative legal analysis of EU, UK and
Ukrainian law”. Doctor of Laws degree. Yaroslav Mudryi National Law
Academy of Ukraine. Kharkiv, Ukraine.
LUTS, Volodymyr; VASYLIEVA, Valentyna; KIBENKO, Olena; SPASYBO-
FATEEVA, Inna. 2010. Corporate law of Ukraine: a textbook; edited by
Luts, V. K.: Jurinkom Inter. Ukraine.
OFFICE OF THE VICE PRIME MINISTER OF UKRAINE. 2022. “Ukraine has
been granted candidate status for EU membership”. Government portal.
Available online. In: https://www.kmu.gov.ua/news/ukrayina-otrimala-
status-kandidata-na-chlenstvo-v-yes. Consultation date: 11/03/2023.
SAVETCHUK, Vitalii. 2018. “Evolution of Legal Regulation of Mergers and
Acquisitions of Legal Entities under the Law of the European Union” In:
Legal scientic electronic journal. No. 3, pp. 68-71.
SHUMILO, Inesa; SULEIMANOV, Ramil. 2021. “A New Concept of Cross-
Border Movement of Companies in EU Legislation and Case Law” In:
Legal scientic electronic journal. No. 3, pp. 373-377.
VERKHOVNA RADA OF UKRAINE. 1957. Agreement No. 994_017/. “Treaty
establishing the European Economic Community”. Available online. In:
https://zakon.rada.gov.ua/laws/show/994_017#Text. Consultation
date: 11/03/2023.
VERKHOVNA RADA OF UKRAINE. 1994. Law of Ukraine No 237/94-VR. “On
Ratication of the Agreement on Partnership and Cooperation between
Ukraine and the European Communities and their Member States”.
Available online. In: https://zakon.rada.gov.ua/laws/show/237/94-
%D0%B2%D1%80#Text. Consultation date: 11/03/2023.
VERKHOVNA RADA OF UKRAINE. 2004. Law of Ukraine No. 1629-IV. “On
the National Program of Adaptation of the Legislation of Ukraine to the
Legislation of the European Union”/ Available online. In: https://zakon.
rada.gov.ua/laws/show/1629-15/ed20181104#Text. Consultation date:
11/03/2023.
VERKHOVNA RADA OF UKRAINE. 2014. Law of Ukraine No. 1678-VII. “On
Ratication of the Association Agreement between Ukraine, on the one
hand, and the European Union, the European Atomic Energy Community
and their Member States, on the other hand”. Available online. In:
https://zakon.rada.gov.ua/laws/show/1678-18#n2. Consultation date:
11/03/2023.
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Esta revista fue editada en formato digital y publicada
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