Eddy Wymeersch

The Takeover Bid Directive, light and darkness

WP 2008-01

The 2004 takeover directive has been implemented in most EU states. It has achieved a very welcome harmonisation of the securities regulatory provisions, especially by introducing a rather strict home rule regime along with mutual recognition, and levelling the conditions for bids (irrevocability, disclosure, equal treatment) although regretfully many concepts remain undefined ("equitable" price, concert action, etc.).

The company law provisions of the directive, and mainly the rules on anti-takeover defences have, generally spoken, not been implemented by the states. This refers to the more general debate on the role of the shareholder, often summarized in the slogan "one share, one vote"). Although originally supportive of OSOV, the Commission recently decide to drop that approach. This change of mood takes place on the background of more aggressive action of activist shareholders, the fear for hedge funds and the like, and the appearance of sovereign wealth funds.