<<Go back |
Lideika, Petrauskas, Valiūnas & Partners
The Commission invites companies, individual and institutional shareholders and regulators to respond to the consultation launched to define
possible future EU legal regulation in the field of corporate governance. The consultation is one of the Commission's actions that are based on the broad-scoped Action Plan of May 2003
on modernization of company law and
corporate governance enhancing. The
consultation concentrates on the control of voting rights, appropriate dissemination of information related to the general meeting, criteria of the participation in the general meeting, possible minimum standards
concerning the rights to ask questions and table resolutions as well as standards that would possibly apply to voting by post, using electronic communications or by proxy. The
results of the consultation are likely to appear in the form of a directive in the future. The responses are welcome by 16 December 2004.
The consultation paper is available at:
The responses may be sent by e-mail:
On 22 September 2004 the Commission
adopted a proposal aimed at setting an efficient balance between the protection of workers rights and the improvement of companies competitiveness. The proposal introduces several essential regulatory changes of the Directive of the Council No 93/104/EC of 23
November 1993 concerning certain aspects of the organization of working time. Firstly, the Directive would provide some additional measures concerning the application of the socalled
opt-out that allows individuals to agree
not to be subject to the limit of maximum 48-hour working week. Secondly, the Member States would be entitled to opt the one-year reference period (the time over which the average 48-hour weekly limit on working time is calculated) in place of the standard one of
four months. Furthermore, the proposal also specifies that compensatory rest would not have to be granted immediately (as it is understood
now in accordance to the case-law of the ECJ), but within 72 hours. In addition to the terms working time and rest time, the Directive would also give the term on-call time (the period during which a worker must be available
to work, if required to do so by his/her
employer) and states that the inactive part of on-call time does not constitute working time within the meaning of the directive. The Directive is a balanced package of inter-related measures which retains the principal objective -
health & safety of workers - while responding to the needs of the modern European economy.
On 8 October 2004, European Council
Regulation 2157/2001, regulating the status and activities of European companies (Societas Europaea, SE), came into force. Uniform legal
regulation of SEs complemented with Directive 2001/86/EC and national legislation of Member States will enable businessmen to organise their
businesses without any need to establish
subsidiaries or branches in other Member States, to enjoy a uniform management structure of group companies, accountability system, to
decrease management and administration expenses, etc. In the future, establishment of SEs
will facilitate merger of companies, transfer of SEs' registered offices from one Member State to another, etc.
SEs will act as limited liability companies under articles of association approved by their shareholders. SEs may be established through merger, establishment of a holding (parent)
company, establishment of a subsidiary or through reorganisation. In all such cases the companies participating in the establishment must be either incorporated or must have their
subsidiaries or branches in different Member States. Each SE shall be registered with the company register of that Member State where it
has its registered office. The required minimum authorised capital of a SE must be EUR 120,000. One of the distinguishing features and
mandatory requirements for registration of a SE is participation of its employees in the decisionmaking process.
The Regulation does not provide for any
regulation of SEs' financial accountability,
liquidation, taxes, intellectual property,
bankruptcy and other matters, which are left to be regulated by the legislation of that Member State where the SE has its registered office.
Since Lithuanian legal acts implementing the above mentioned EU acts will be adopted presumably not earlier than by the end of this
year, the establishment of SEs in Lithuania will remain only a theoretical possibility for some time. On the other hand, such form of business
organisation has already caused a considerable interest among Lithuanian businessmen.
On 15 September 2004 the Government by Resolution No 1165 approved the Rules for Liquidation of Investment Public Companies.
The rules are applicable to investment public companies which have not amended their articles of association and have not been reregistered
into investment companies. The
Rules for Liquidation of Investment Public
Companies regulate the procedure for: transfer of the documents and assets of investment companies; fixation of the initial sales price for the assets; sales of the assets; organisation and
conduction of auctions; and payment of
expenses incurred in liquidation of companies.
On 24 September 2004 the Minister of Health by Order No V-675 approved the Model Articles of Association of Individual Health Care Public Institutions.
On 8 September 2004 the Commission
proposed a revised version of the Council draft directives (Euratom) setting out basic obligations and general principles on the safety of nuclear installations (Nuclear Safety
Directive) and on the management of spent nuclear fuel and radioactive waste (Nuclear Waste Management Directive). The amendments introduced several draft regulatory innovations. The draft of the Nuclear Safety Directive provides that the prime responsibility for nuclear safety rests with the national authorities and the operators. Member States are no longer required to provide securely ringfenced
funds for dismantling nuclear power
stations. On the other hand, the members of the EU are still obliged to ensure "adequate financial resources". While the draft of the Nuclear Waste Management Directive does not
specify deep geological waste disposal as a legal requirement, it nevertheless requires Member States to give priority to this treatment if possible. The obligation for Member States to draft long-term national management programs
for radioactive waste is also embodied.
However, the original approach of a firm
timetable has been abandoned.
The amendments of the EU Nuclear Regulatory Package are necessary because so far there is no mechanism to ensure that obligations under
international agreements on the safety of
nuclear installations and the management of spent fuel and radioactive waste are complied
with. Nevertheless, as the draft directives frame national competence in nuclear safety and the planning of nuclear plants, several EU members, including Lithuania, stand against the regulatory
changes. The Commission expects the proposals to be adopted already in October.
On 23 September 2004 the Board of the Bank of Lithuania by Resolution No 157 approved the Regulations for Inspection of Banks.
On 23 September 2004 the Board of the Bank of Lithuania by Resolution No 158 approved the Regulations for Inspection of Credit Unions.
On 28 September 2004 the Insurance
Supervisory Commission of the Republic of Lithuania by Resolution No N-113 approved the Rules for Compulsory Insurance of Civil Liability of Insurance Brokers.
The Commission has finalised the proposal aimed at supplementing the Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs with the clause excluding
spare car parts from the objects protected by industrial designs law. The proposal would allow independent spare parts manufacturers - not linked to the producers of finished vehicles
- to compete throughout the EU market for visible replacement parts, such as bonnets, bumpers, doors, lamps, rear protection panels, windscreens and wings. The original manufacturers however would still retain exclusive rights to the production and sale of
spare parts for new vehicles. In addition, nonvisible parts, like engine or mechanical parts, are not affected by the regulatory changes. The innovations in regulating industrial designs are
presented in order to strengthen
competitiveness in "visual" parts producing market as well as ppropriately protect consumers' interests.
On 16 September 2004 the Court of Justice of the European Community (ECJ) in its judgment in the case SatelitenFernsehen GmbH v. Office
for Harmonisation in Internal Market C-329/02 P clarified that elements of a trade mark each of which is devoid of any distinctive character may, when combined, have such distinctive
character. After "SAT.2" had not been granted the status of the registered Community trade mark by the Office for Harmonisation of Internal Market (OHIM) and the procedures in the Court of First Instance of the European Community had been undergone, the decisions
made by these latter institutions and stating the "SAT.2" as being devoid of any distinctive character were overruled by the ECJ. The ECJ has held that the question whether a term like "SAT.2" has a distinctive character and may be
registered as a Community trade mark must be assessed on the basis of its overall perception by an average consumer. Furthermore, the ECJ
emphasized that the public interest to be taken into consideration when assessing distinctive characters does not require that the signs concerned should be freely available to everybody. Rather, they require their availability not to be unduly restricted for other operators offering goods or services of the same type as those in respect of which registration is
sought. Finally, the court stated that the
frequent use of trademarks consisting of a word and a number in the telecommunications sector
shows that that kind of combination cannot be considered to be devoid, in principle, of distinctive character. Consequently, the OHIM's decision was annulled in its entirety.
The Commission has initiated the consultation to find out the prospects of application of electronic ommunications in the area of public procurement. Since the new legislation (Directive 2004/17/2004 and Directive
2004/18/EC of the European Parliament and of the Council of 31 March 2004) on public procurement recognized the importance of electronic communications in the said
procedures, the Commission started preparing an Action Plan on maximization of benefit from
the implementation of these new provisions.
Consequently, the consultation seeking to reveal businesses' experience in searching tender opportunities on line, using electronic marketplaces and electronic signatures etc. was launched.
Information technologies would allow to reduce costs, increase efficiency and avoid barriers to trade, and consequently would result in taxpayers' saving. As public procurement is a key sector of the EU economy accounting for about 16% of GDP, modernizing and opening
up procurement markets across borders -
including through the expansion of electronic procurement - is crucial to Europe's competitiveness and in terms of creating new opportunities for EU businesses.
Businesses and business organizations may respond to the Survey until 15 October 2004.
The consultation questionnaire is available at: http://europa.eu.int/yourvoice/consultations.
On 9 September 2004 the Commission
presented the European Tax Survey that
justifies the Commission's position for a
uniform basis of assessment of corporate tax and grounds the need for the forthcoming Commission's proposal aimed at implementing the one-stop shop system in respect of VAT.
The Survey, in which seven hundred companies from the EU participated, has discovered that cross-border activities now result in costly inefficiency as the companies with subsidiaries
in other EU Member States are subject to high costs that do not affect the companies having no subsidiaries abroad. Furthermore, the Survey
shows that the EU taxation multi-system, from the perspective of compliance costs, pushes small or medium EU-wide operating enterprises into a worse position in comparison to the large
ones. The Survey proves that the main
difficulties arise in relation to the repayments and refunds of VAT expenditures, thus it gives grounding for the Commission to proceed in
preparing a proposal which would entitle the traders to fulfill their VAT obligations for their EU-wide activities solely in their home Member State. The proposal is intended to appear within the next few months.
The Survey is available at: