EMPLOYEE OWNERSHIP IN THE EUROPEAN COMPANY: REFLEXIVE LAW, REINCORPORATION AND ESCAPING CO-DETERMINATION

This article assesses the effects of reincorporation on co-determination, focusing on the scope for escaping co-determination by restructuring under the European Company (Societas Europaea or SE). This is usually assoc iated with the prospect of corporate fl ight from co-determined jurisdictions. The article presents an alternative possibility, arguing that, because the self-regulatory framework of employee participation in the SE encourages diversity and experimentation, it does not inevitably erode the institution of co-determination. Viewed within a framework of refl exive harmonisation, the effects on co- determination are better understood as part of an open-ended process of evolution in the ownership and control structures of the firm. This points to the potential for co-determination to become more, rather than less, integrated as part of the ownership landscape of European firms.