The draft European Business Code applies to all businesses, with a particular focus on MSMEs and innovative start-ups, which require access to European savings to grow in the internal market.

It is not intended to create an artificial 28th body of law applicable only to a certain type of business, which is not subject to generally applicable law, including tax, employment and social security law. Rather, in the areas in which this is possible, its purpose is to lay the foundations for a European Commercial Code - a true European commercial and business law applicable to all businesses, which serves to simplify, consolidate, converge and decompartmentalise markets.

The availability of an optional 28th regime for businesses will be invaluable in expediting the introduction of new European instruments that are currently lacking if a true European savings market is to emerge, and that do not interfere with public policy rules at the national level. These include, for example, Simplified European Companies, European security interests (including European security, guarantees and trusts) and European loan contracts (European private bonds and their issuance).

A special liberal regime for innovative companies is currently being considered by the Commission. To be legally and politically viable, it must integrate seamlessly into national legal systems, and not conflict directly with public policy rules designed to protect specific interests. It must also guard against the risk of creating inequalities between businesses and increasing the fragmentation of EU law.

In any event, it is important not to lose sight of the fact that the 28th regime in business law is optional. It must not be a body of law that is separate and external to national bodies of law. Rather, it must be integrated into the laws of the 27 Member States, simply as an optional right that therefore cannot be contrary to public policy rules at the national level that are mandatory in nature. This law is not being layered on top of existing obligations. It is an available option, an opportunity, of which businesses are free to avail themselves if they wish to do so, or not.

Since this is an option that businesses are free to adopt depending on their operations, their size and the markets in which they operate, it must be available to all businesses. They are the ones who will decide whether it is in their interest to opt into this 28th regime. It can be assumed that MSMEs and innovative businesses will be the first to express an interest. But, save for a few exceptions, it is surely not for the regulatory framework to assess this interest on their behalf by setting thresholds or eligibility criteria, especially since businesses are constantly in flux. Indeed, doing business means going through growth and/or innovation cycles. Businesses cannot be confined by rigid thresholds or criteria that risk making this 28th regime less attractive.

In conclusion, the Commission's proposal for a 28th regime for innovative businesses or companies of a certain size (midcaps) is a step forward, a first stage in the EU's thinking process. It must not detract from the need to quickly put in place a European Business Code open to all EU companies, directly benefiting MSMEs and all European start-ups and paving the way for the savings and investment union called for by Mr Letta and Mr Draghi.