The takeover directive has laid the basis for a better organisation of takeovers in Europe, also by introducing better coordination of the procedure in cases of multi-state takeovers. But the provisions of the directive dealing with designating the competent authorities have to be updated taking into account the changes in the regulatory system in Europe (ESMA coordination), in the trading patterns and the changed perspectives in company law. Differently from the concepts followed at the end of the previous century, there is more understanding these days as to the role played by stable shareholders. This leads to a better analysis of the issues of private benefits of control that should best be avoided on a permanent basis, and not only at the moment of a control acquisition. As a consequence, the obligation to mandate a bid in case of crossing a certain threshold should be mitigated by insuring that the new controlling shareholder can obtain no private benefits. For other, open bids, the usefulness of the takeover technique is widely recognised and should be supported as the ultimate disciplining instrument. However the takeover is not the most efficient disciplining mechanism, and other instruments should be supported as well. Finally, the debate on defensive techniques will probably not be avoided. It is proposed to reposition this debate in terms of the overall decision-making mechanism in company law and allow the general meeting to ultimately decide which direction the company should take. Differently from proxy solicitation as a disciplining instrument – with whom this proposal is affiliated – here the decisions are to be adopted in light of a firm offer and with full disclosure, so the shareholders will know what will be the financial consequence of their decision.
Dealing with takeovers often results in a dilemma , one being obliged to take account on the one hand of the necessary flexibility, the risk of entrenchment, irresponsible conduct and abusive private benefits, and on the other, create stability and innovation, responsible ownership, supporting the long term growth. This balance will only be struck in an appropriate way by dealing not only with the technical case of takeover bids, but should include the wider legal, financial, social context in which business activity is undertaken. One can hope that the European regulators will be open to take this into consideration.