Συστάσεις και Κατευθυντήριες γραμμές

Δ. Συστάσεις και Κατευθυντήριες Οδηγίες

 

i) ESMA Public Statement- Information  clarifies shareholder cooperation and acting in concert under the Takeover Bids Directive (ESMA/2013/1642) 

 

 

1. Introduction

1.1 In its report[1] (Report) to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the application of Directive 2004/25/EC on Takeover Bids (TBD), the European Commission (Commission) suggested that clarification of the concept of "acting in concert" at EU level would help to lessen uncertainty for international investors who wish to cooperate with each other on corporate governance issues but who feel inhibited from doing so for fear that they might risk having to make a mandatory bid.

1.2 The Commission emphasised in the Report, however, that the suggested clarification should not limit the ability of national competent authorities[2] to oblige control-seeking concert parties to accept the legal consequences of their concerted action.

1.3 The Commission commented further on this matter in its Action Plan on European company law and corporate governance[3], where it stated that "Effective, sustainable shareholder engagement is one of the cornerstones of listed companies' corporate governance model". It continued by saying that if the suggested clarification were not provided, "shareholders may avoid cooperation, which in turn could undermine the potential for long-term engaged share ownership under which shareholders effectively hold the board accountable for its actions".

1.4 This public statement has been prepared for investors in response to the Commission's suggestion on the basis of information collected by the members of the Takeover Bids Network (TBN) about national practices and application of the TBD. The public statement represents the collective view of the members of the TBN, who stand behind it. The TBN operates under the auspices of ESMA and its members are the national competent authorities appointed under the TBD.

1.5 Following consideration of the information collected, a "White List" of activities, in which shareholders may wish to engage in order to exercise good corporate governance over the companies in which they have invested, has been identified. If shareholders cooperate to engage in any activity on the White List, insofar as that activity is available to them under national company law, that cooperation, in and of itself, will not lead to those shareholders being regarded as persons acting in concert and thus being at risk of having to make a mandatory bid.

1.6 However, individual cases of cooperation between shareholders and the consequences of such cooperation must be determined on their own particular facts. National competent authorities will have regard to the White List when determining whether shareholders are persons acting in concert under national takeover rules but will also take into account all other relevant factors in making their decisions.

1.7 The public statement emphasises the importance of early consultation with national competent authorities by parties concerned, in accordance with national procedures, where there is any uncertainty. See Appendix A for contact details.

1.8 This public statement does not address disclosure obligations.

1.9 ESMA will keep the public statement under review in order, as far as possible, to ensure that it continues to reflect accurately the practices and application of the TBD in the Member States.

 

2. Relevant provisions of the TBD

2.1 Article 2.1(d) of the TBD defines "persons acting in concert" as follows:

"‘persons acting in concert' shall mean natural or legal persons who cooperate with the offeror or the offeree company on the basis of an agreement, either express or tacit, either oral or written, aimed either at acquiring control of the offeree company or of frustrating the successful outcome of a bid".

Article 5.1, the "mandatory bid rule", provides as follows:

"Where a natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in concert with him/her, holds securities of a company as referred to in Article1(1) which, added to any existing holdings of those securities of his/hers and the holdings of those securities of persons acting in concert with him/her, directly or indirectly give him/her a specified percentage of voting rights in that company, giving him/her control of that company, Member States shall ensure that such a person is required to make a bid as a means of protecting the minority shareholders of that company. Such a bid shall be addressed at the earliest opportunity to all the holders of those securities for all their holdings at the equitable price as defined in paragraph 4."

2.2 The information collected about the application of these two provisions has shown that in some Member States, when shareholders come together to act in concert in relation to a particular company in circumstances where, independently, they have already acquired securities in that company which, in total, carry the specified percentage of voting rights that confers "control" under national takeover rules[4], they will be required to make a bid to all other shareholders (a "mandatory bid"). In other Member States, no mandatory bid obligation will arise initially when shareholders come together to act in concert in such circumstances but such an obligation may be triggered by acquisitions of securities carrying voting rights in the company by any of the shareholders regarded as persons acting in concert. Some Member States, owing to a lack of relevant experience have not yet settled the consequences for shareholders who come together to act in concert in the circumstances described above. Further information is provided in Appendix B2.

2.3 Where the securities held by a group of shareholders carry voting rights, which in total are below the national threshold for "control", there are no immediate bid consequences for those shareholders, even if they are regarded as persons acting in concert. A mandatory bid may be required subsequently if one or more of those shareholders acquires more securities carrying voting rights so that in total the securities held by the group carry the specified percentage of voting rights that confers "control" under national takeover rules.

 

3. Shareholder cooperation and acting in concert

3.1 ESMA recognises that shareholders may wish to cooperate in a variety of ways and in relation to a variety of issues for the purpose of exercising good corporate governance but without seeking to acquire or exercise control[5] over the companies in which they have invested. Cooperation might consist of discussing together issues that could be raised with the board[6], making representations to the board on those issues, or tabling or voting together on a particular resolution. The issues on which shareholders might cooperate could include: commercial matters (such as particular acquisitions or disposals, dividend policy, or financial structuring); matters relating to the management of the company (such as board composition or directors' remuneration); or matters relating to corporate social responsibility (such as environmental policy or compliance with recognised standards or codes of conduct).

3.2 National competent authorities agree that national takeover rules should not be applied in such a way as to inhibit such cooperation. Therefore, a "White List" of certain activities in which shareholders might wish to engage for the purposes of exercising good corporate governance (but without seeking to acquire or exercise control over the company) has been identified, based on existing laws, regulations and practices in the Member States. When shareholders cooperate to engage in any activity included on the White List, insofar as that activity is available to them under national company law, that cooperation, in and of itself, will not lead to a conclusion that the shareholders are acting in concert, and thus to a risk of those shareholders having to make a mandatory bid.

3.3 However, national competent authorities, when determining whether cooperating shareholders are acting in concert, decide each case on the basis of its own particular facts. If there are facts, in addition to the fact of the shareholders' engagement in any activity on the White List on a particular occasion, which indicate that the shareholders should be regarded as persons acting in concert, then the national competent authority will take those facts into account in making its determination. There might, for example, be facts about the relationship between the shareholders, their objectives, their actions or the results of their actions, which suggest that their cooperation in relation to an activity on the White List is not merely an expression of a common approach on the particular matter concerned but one element of a broader agreement or understanding to acquire or exercise control over the company.

3.4 On such a basis, where shareholders engaging in an activity on the White List are in fact cooperating with the aim of acquiring or exercising control over the company, or, in fact, have acquired or are exercising control, those shareholders will be regarded as persons acting in concert and may have to make a mandatory bid.

 

4. The "White List" of activities

Whenever there is any uncertainty about proposed shareholder cooperation, including, in particular, when the proposed cooperation relates to voting on a resolution which is not included in the list in paragraph 4.1(d), parties concerned are encouraged to consult the relevant national competent authority for guidance as early as possible. Guidance will be provided within the framework of national laws, regulations and practices. Relevant contact details are provided in Appendix A.

4.1 When shareholders cooperate to engage in any of the activities listed below, that cooperation will not, in and of itself, lead to a conclusion that the shareholders are acting in concert:

(a) entering into discussions with each other about possible matters to be raised with the company's board;

(b) making representations to the company's board about company policies, practices or particular actions that the company might consider taking;

(c) other than in relation to the appointment of board members, exercising shareholders' statutory rights to:

(i) add items to the agenda of a general meeting;

(ii) table draft resolutions for items included or to be included on the agenda of a general meeting; or

(iii) call a general meeting other than the annual general meeting;[7]

(d) other than in relation to a resolution for the appointment of board members and insofar as such a resolution is provided for under national company law, agreeing to vote the same way on a particular resolution put to a general meeting, in order, for example:

(A) to approve or reject:

(i) a proposal relating to directors' remuneration;

(ii) an acquisition or disposal of assets;

(iii) a reduction of capital and/or share buy-back;

 

(iv) a capital increase;

(v) a dividend distribution;

(vi) the appointment, removal or remuneration of auditors;

(vii) the appointment of a special investigator;

(viii) the company's accounts; or

(ix) the company's policy in relation to the environment or any other matter relating to social responsibility or compliance with recognised standards or codes of conduct; or

(B) to reject a related party transaction.

4.2 If shareholders cooperate to engage in an activity which is not included on the White List, that fact will not, in and of itself, mean that those shareholders will be regarded as persons acting in concert. Each case will be determined on its own particular facts.

 

5. Cooperation in relation to the appointment of members of the board of a company

5.1 Cooperation by shareholders in relation to the appointment of board members can be particularly sensitive in the context of the application of the mandatory bid rule. This is because, if shareholders cooperate in the appointment of board members, they may be in a position to control the operational management of the company. Different approaches are adopted in different Member States towards determining whether shareholders who cooperate in relation to board appointments are persons acting in concert. To some extent these differences depend on national company law and the prevailing shareholding structures. As a result of these differences, the White List does not include any activity relating to cooperation in relation to board appointments.

5.2 However, national competent authorities recognise that shareholders may wish to cooperate in order to secure the appointment of members to the board of a company in which they have invested. Such cooperation might take the form of:

(a) entering into an agreement or arrangement (informal or formal) to exercise their votes in the same way in order to support the appointment of one or more board members;

(b) tabling a resolution to remove one or more board members and replace them with one or more new board members; or

(c) tabling a resolution to appoint one or more additional board members.

5.3 When considering cases of such cooperation in relation to board appointments, with a view to determining whether the shareholders are persons acting in concert, national competent authorities may, in addition to examining facts described in paragraph 3.3 (including the relationship between the shareholders and their actions), also consider other facts such as:

(a) the nature of the relationship between the shareholders and the proposed board member(s);

(b) the number of proposed board members being voted for pursuant to a shareholders' voting agreement;

(c) whether the shareholders have cooperated in relation to the appointment of board members on more than one occasion;

(d) whether the shareholders are not simply voting together but are also jointly proposing a resolution for the appointment of certain board members; and

(e) whether the appointment of the proposed board member(s) will lead to a shift in the balance of power on the board.

5.4 Further details about the different national approaches towards determining whether or not shareholder cooperation in relation to board appointments will lead to the shareholders being regarded as persons acting in concert or not are provided in Appendix D.

 

APPENDIX A: Contact details for Member States

APPENDIX B: Summary of aspects of national laws/regulations relating to acting in concert and the mandatory bid rule

APPENDIX C: The definition of acting in concert

APPENDIX D : Summary of approaches in the Member States to shareholder cooperation in relation to board appointments and acting in concert