The question has been raised whether it would not be preferable to develop European rules that would only address part of the viewed population, the one where with the greatest cross border density". To a certain extent, this approach has already been followed as the accounting directives contain differentiated rules depending on the volume of the business, its turnover and the number of employees employed. However, if these criteria allow differentiating the smaller companies from the very small ones, it does not allow for sufficient differentiation at the top end of the scale. Therefore it would be advisable that the directives more closely follow the criterion of "listing": companies that have their securities listed on regulated markets would be subject to strengthened rules and obligations v a.v. their investors". The use of this criterion would allow deregulating for many of the intermediate class of companies, and result in a more level playing field between the national systems, where the use of the different corporate forms present divergent patterns. At the same time it would allow for a better junction with the rules flowing from the capital market directives 3. The instruments of European Company Law 6. European company law is indirect company law: the Community rules are generally not directly applicable in the national legal systems. This feature is a consequence of the prevalent use of the"directive"as an instrument for implementing the provisions of the article 44(1)and 94-95 The directive is the usual Community instrument in the company law field. As mentioned above, some-unsuccessful-attempts have been made to intervene by way of a treaty. In rare cases the Community has acted by regulation, the latter being directly applicable in the national legal orders. In the securities field, a recommendation has been adopted it had the value of a programme for future harmonisation activity But the most used instrument is the directive. As a consequence, European company law is not company law, not being directly applicable to the companies, but addressed to the member States, who have to implement the directive into their national legal order. This duty of implementation is sometimes complex: there is no need to enact a regulation if the directive's provision is addressed to the state itself. Also the directive needs no implementing legislation if the national laws are already in conformity with the directive's provisions This double-layered system of regulation has many advantages: in a multicultural multilingual economic area it makes it possible to reach agreement on common principles without aving to agree about the rding in the actually applicable provision. It allows bridging the considerable differences in the legislative traditions of the member states. It further allows each state to use its own wording and language, as the directive only binds as to its result, not as to its forms and methods(art. 249) The drawback of the use of directives is that- differently from a"regulation"-it does not result in uniform law. Looking at the national company law statutes, one will find numerous and sometimes considerable differences in the respective member states. It is up to the eCj to check whether the member states have adequately implemented the directive and whether the goal put 21 In France and in Belgium, this criterion is supplemented by that of the companies that have issued securities to the public. As the number of companies that have issued securities to the public that have not been listed afterwards are marginal, it is proposed to leave that extension up to the member states 22 LEMPEREUR, CL,, Le code de conduite europeen concermant les transactions relative aux valeurs mobilieres' Rev. Dr Int. Dr:. Compare, 1978, 249-266 23 See on the use of the different instruments in European Company law: HOPT, K, fn. 4, at 232 et sec See also hoPt. fn. 4. at 233 e Financial Law institute. Universiteit Gent 2001© Financial Law Institute, Universiteit Gent, 2001 7 The question has been raised whether it would not be preferable to develop European rules that would only address part of the viewed population, the one where with the greatest cross border "density". To a certain extent, this approach has already been followed as the accounting directives contain differentiated rules depending on the volume of the business, its turnover and the number of employees employed. However, if these criteria allow differentiating the smaller companies from the very small ones, it does not allow for sufficient differentiation at the top end of the scale. Therefore, it would be advisable that the directives more closely follow the criterion of “listing”: companies that have their securities listed on regulated markets would be subject to strengthened rules and obligations v.à.v. their investors21. The use of this criterion would allow deregulating for many of the intermediate class of companies, and result in a more level playing field between the national systems, where the use of the different corporate forms present divergent patterns. At the same time it would allow for a better junction with the rules flowing from the capital market directives. 3. The instruments of European Company Law 6. European company law is indirect company law: the Community rules are generally not directly applicable in the national legal systems. This feature is a consequence of the prevalent use of the "directive" as an instrument for implementing the provisions of the article 44(1) and 94-95. The directive is the usual Community instrument in the company law field. As mentioned above, some - unsuccessful- attempts have been made to intervene by way of a treaty. In rare cases the Community has acted by regulation, the latter being directly applicable in the national legal orders. In the securities field, a recommendation has been adopted: it had the value of a programme for future harmonisation activity22. But the most used instrument is the directive23. As a consequence, European company law is not company law, not being directly applicable to the companies, but addressed to the Member States, who have to implement the directive into their national legal order. This duty of implementation is sometimes complex: there is no need to enact a regulation if the directive's provision is addressed to the state itself. Also the directive needs no implementing legislation if the national laws are already in conformity with the directive's provisions. This double-layered system of regulation has many advantages: in a multicultural, multilingual economic area it makes it possible to reach agreement on common principles without having to agree about the precise wording in the actually applicable provision24. It allows bridging the considerable differences in the legislative traditions of the member states. It further allows each state to use its own wording and language, as the directive only binds as to its result, not as to its forms and methods (art. 249). The drawback of the use of directives is that - differently from a "regulation" - it does not result in uniform law. Looking at the national company law statutes, one will find numerous and sometimes considerable differences in the respective member states. It is up to the ECJ to check whether the member states have adequately implemented the directive and whether the goal put 21 In France and in Belgium, this criterion is supplemented by that of the companies that have issued securities to the public. As the number of companies that have issued securities to the public that have not been listed afterwards are marginal, it is proposed to leave that extension up to the member states. 22 LEMPEREUR, CL., ‘Le code de conduite européen concernant les transactions relative aux valeurs mobilières’, Rev.Dr.Int. Dr. Comparé, 1978, 249-266. 23 See on the use of the different instruments in European Company law: HOPT, K., fn. 4, at 232 et seq. 24 See also HOPT, fn. 4, at 233