EUROPE: ESMA provides clarification of EU Takeovers Directive shareholder cooperation

Tuesday November 12 2013

The European Securities and Markets Authority has published a statement on practices governed by the EU Takeover Bid Directive, focused on shareholder cooperation issues relating to acting in concert and the appointment of board members.

The ESMA statement contains a White List of activities that shareholders can cooperate on without the presumption of acting in concert. It also contains information on how shareholders may cooperate in order to secure board member appointments by setting out factors that national authorities may take into account when considering whether shareholders are acting in concert.

The statement follows a request by the European Commission for clarity on these issues, following its June 2012 report on the application of the Takeovers Directive. The report found, among other issues, that there were concerns about the legal certainty of the concept of “acting in concert” and its application by national regulators. ESMA`s statement and the White List contained therein shall be used by national competent authorities when determining whether shareholders are persons acting in concert under national takeover rules – however, the competent authorities will also take into account all other relevant factors in making their decisions.

The White List provides that when shareholders cooperate to engage in any of the below activities, that cooperation will not, in and of itself, lead to a conclusion that the shareholders are acting in concert:

1. entering into discussions with each other about possible matters to be raised with the company’s board;

2. making representations to the company’s board about company policies, practices or particular actions that the company might consider taking;

3. other than in relation to the appointment of board members, exercising shareholders’ statutory rights;

4. 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.

If shareholders cooperate in an activity not included on the White List, this will also not result in an automatic assumption that they are acting in concert. Each case will be determined on its own particular facts.

The White List does not include any activity relating to cooperation on board appointments, due to differences in Member State approaches towards determining whether shareholders who cooperate in relation to board appointments are acting in concert. However, shareholders may wish to cooperate in order to secure board members’ appointment in a company in which they have invested. This cooperation might take the form of:

1. 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;

2. tabling a resolution to remove one or more board members and replace them with one or more new board members; or

3. tabling a resolution to appoint one or more additional board members.

The statement indicates which factors may be considered when assessing whether such cooperation is indeed an act of acting in concert.

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

Click on the above link for the public statement.