Rendering (Once More) the Financial Assistance Regime More Flexible

Directive 2006/68/EC eliminated the ban on financial assistance imposed by Article 23 of Directive 77/91/EEC. The new formulation of article 23 allows Member States the possibility of authorising public limited liability companies to undertake financial assistance transactions provided they give adequate safeguards to the (minority) shareholders and to third parties. Various Member States have not exercised this possibility and prevalent doctrine has given a negative evaluation of the text of article 23 of the second Directive. The conditions set forth in article 23 aimed at protecting minority rights and rights of creditors have been considered to be excessively rigid and constituting an obstacle to the effective simplification of the regulations governing financial assistance. This article suggests possible modifications to article 23 of the second Directive which could render financial assistance regime more flexible without prejudicing the interests of shareholders and creditors. This compromise solution ensures an adequate balance between flexibility and certainty and appears preferable to the proposed elimination of financial assistance regulation