Problems in Harmonisation of Acts Regulating Commercial Register Entries

• Author: Andres Vutt
• Pages: 103-104

Andres Vutt

Problems in Harmonisation of Acts Regulating Commercial Register Entries

In Juridica International II, which was published a year ago, I discussed pre-conditions for harmonisation of Estonian company law¹. By today, life has moved on, and Estonian Acts are screened in order to determine their general compliance with the EU requirements. As regards company law, it is apparent that harmonisation problems are not particularly acute. At the same time, it has become clear that even in company law, certain problems are waiting for a solution.

One of the most important principles expressed in the first Company Law Directive,² is the publicity of the commercial register. In this respect, Estonia does have a commercial register, which is public and in full compliance with the EU requirements. On the other hand, there is a substantial difference with regard to the validity of entries in the commercial register.

In accordance with Article 3(5) of the first Directive, entries in commercial register shall acquire legal relevance as from their publication in the Official Gazette of the country concerned. Regardless of the fact that the Estonian Commercial Register is generally based on the corresponding German principles (the referred principle of the first Directive has also been transposed thereunder), this question is regulated differently. That was caused, in particular, by concerns that the publication of entries will be delayed during the implementation of commercial registers from 1 September 1995; it is also known that this principle has not always been applicable even in other countries³. In § 34(1) of the Commercial Code, the existing Estonian law states that an entry in the commercial register shall enter into force upon signature by the person who has executed the decision on entry and the person who is competent to decide on the entry (under the law, such persons are either the judge and registry secretary or assistant judge). In accordance with § 29(1) of the Commercial Code,⁴ commercial register entries are subject to publication but this has only an informative meaning. This constitutes an apparent conflict, as in the Estonian law the publication of an entry is associated with no legal consequences. This situation could be most easily settled by making amendments to § 34(1) of the Commercial Code and by giving the publication of an entry legal relevance and leave the procedure for publication of entries unamended in other...