Consensus on the Comply or Explain principle (IVOR nr. 86) 2012/6.3.1:6.3.1 Introduction

Consensus on the Comply or Explain principle (IVOR nr. 86) 2012/6.3.1

6.3.1 Introduction

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

To be able to make recommendations regarding the necessary conditions to be put in place for the comply or explain principle to work adequately, the actual problem setting must first be analysed. From the comparative legal research in part II several unwanted issues with respect to the application of the comply or explain principle can be derived. These issues together give shape to the problem setting and the necessary improvements as recommended further below. The starting point is Directive 2006/46/EC of June 20061 that had to be implemented before 5 September 2008. Since this has already been discussed extensively in part I, the Research Setting, it suffices here simply to state that the rules on the comply or explain principle and the corporate governance statement as laid down in Directive 2006/46/EC are broad and leave room for interpretation, which has resulted in differentiation in the application and embedding of the comply or explain principle, as has also been identified in the EU Green Paper 2011 (EU Green Paper 2011). As stated above in section 1.2.2, the directive states in article 1 under 7 and 8 only that:

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the Member States should have a national corporate governance code applicable to listed companies;

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the Member States must regulate that companies are obliged to have a corporate governance statement in their annual report, or in a separate report or on their website as long as a reference thereto is made in the annual report;

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the corporate governance statement must at least state which corporate governance code the company is subject to and with respect to the code provisions not complied with an explanation of the reasons for doing so must be provided;

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the statutory auditor has to check whether the corporate governance statement has been produced;

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the Member States must ensure that the members of the administrative, management and supervisory bodies have collectively the duty to ensure that the corporate governance statement is drawn up and published in accordance with the requirements of the Directive, and

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the Member States must ensure that their liability regulation, applicable at least towards the company, applies to the members of the administrative, management and supervisory bodies with respect to a breach of the duty to draw up and publish the corporate governance statement.

Whether the differences in application and embedding are problematic and in what manner they need to be solved is analysed below.

Deze functie is alleen te gebruiken als je bent ingelogd.