2in practice. This experience should therefore be extended to the other Member Stateswhere such changes are still not allowed or result in adverse tax consequences.
2. Introduction of a simplified public limited company into national law
Art. 4 (b) of the recommendation states that the concept of a simplified limited companyshould be introduced into all Member States’ laws. This would give SMEs easier accessto this kind of company, which is more robust in the process of transfer while permittingthe distribution of shares among actual or future heirs, as required by inheritance law.Such a simplified limited company has so far only been introduced in Germany, withinthe
, which provides for certain lower administrative burdens for smallcompanies. In France, the
Société Anonyme Simplifiée (S.A.S.)
was introduced in 1994.However, this legal form aims at facilitating the cooperation between big companies andis therefore not a suitable instrument for SMEs.In all Member States, access to the limited company could be facilitated further, so thatthis type of company would be more widely used by SMEs. This is currently beingenvisaged in France in the report on the modernization of company law, which waspresented to the Prime Minister in 1996 by Senator
3. Introduction of a single-member public limited company into national law
The company law of all Member States should allow for the setting up of a public limitedcompany with a single member (art. 4 (c) of the recommendation). This is alreadypossible in Austria, Denmark, Germany (since 1994), Finland, Spain (since 1995), theNetherlands and Sweden. The other Member States should therefore modify theircompany law in this direction. This has recently been envisaged in France in the
In Italy, such a company is so far only possible for private limitedcompanies and should be extended to public limited companies.
4. Increasing the continuity of businesses
As pointed out in art. 5 (a) of the recommendation, the continuity of partnerships as alegal principle should be introduced into all national civil laws, in order to avoid theunwarranted closure of SMEs. This principle exists already in Italy and Portugal, withthese countries representing best practice in this field. In Germany, this principle has beenintroduced for partnerships in liberal professions (by virtue of the
of 25.7.1994). The introduction of this principle moregenerally into German law has recently been envisaged in the 1996 draft proposal for therevision of the Commercial Law (
.Other ways of achieving greater continuity of partnerships could be the introduction of aright of the entrepreneur to transfer his or her trading authorization, even provisionally, toa member of the family, in case of death, sickness or other permanent incapacity tocontinue the business (as introduced for example in Luxembourg in the
Loi réglementant l’accès aux professions d’artisan, de commerçant, d’industriel ainsi qu’à certainesprofessions libérales
of 28.11.1988).Partnerships, although very widespread among SMEs in continental Europe, areinherently weak forms of association when it comes to resisting the tensions which oftenarise in the course of a transfer. This is particularly true in cases where several heirs claimtheir share in the enterprise and as a result the partnership is dissolved and the businessceases, with a loss of economic activity and jobs. In order to protect partnerships from