A New Look at the Debate About the Takeover Directive

Abstract

With a view of the projected revision of the takeover directive, this paper calls attention to some items that would usefully be revised. Especially attention is drawn to the mandatory bid rule, the scope of which should restricted to share acquisitions - and not apply to other control changes, - while company law in general should strictly regulate conflicted transactions, thereby eliminating control premia, and hence the need to proceed to a mandatory bid. Multistate takeover should be reregulated, taking into account the new supervisory structure, esp. ESMA. Also some of the blanks should be filled e.g. on squeeze outs, sell outs, and other specific requirements like “acting in concert”. As to the most controversial item of defensive techniques, a fundamental revision seems unlikely, but one could be considered to allow these techniques, but subject their effectiveness to a qualified vote in the general meeting, the shareholders voting according to the rules applicable before the bid.