The Takeover Directive - and Its Implementation In Germany, UK and Sweden

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: One of the main purposes in EU is increased competiveness on the European market and to achieve the goal; the European Commission made a proposal of a Directive on Takeover Bids which would facilitate the takeover activity in EU. Takeover activities essentially signify when a company purchases shares in another company which occasionally also leads to a takeover of the control of the target company. The proposed Directive was inspired by the UK regulation on Takeover Bids "the Takeover Code" and contained several rules that would obstruct the use of defensive measures applied in relation to impeding an offer. For example, the proposal of the Directive contained a board neutrality rule requiring that the board of the offeree company cannot take any defensive measure in order to frustrate a bid unless it is supported by the shareholders. In addition, the Directive contained a breakthrough rule aimed to neutralize pre-bid measures, e.g., striking out multiple voting rights by using the ’one share - one vote’ principle. Owing to Member States’ different regulations on takeovers, the Directive based on Anglo-Saxon regulation, was strongly criticized by the European Parliament and several Continental Member States and especially by Germany. The corporate structure in Germany is, unlike the UK’s focus on shareholder value, instead focused on the company and its stakeholders. Several authors have also claimed that the Directive might damage companies in Member States using dual class share system (i.e., companies with shares carrying different amount of votes). As a reaction to the criticism, the Commission amended the Directive and made the breakthrough rule and the board neutrality rule voluntary. The implementation of the Directive thus varied among the Member States since some States including Germany chose to refrain from the adoption of the board neutrality rule. Moreover, none of the Member States (except for the Baltic States) implemented the breakthrough rule which was a disappointment for the Commission since the rule is significant for the achievement of increased competitive market. Another purpose with the Directive is a mutual regulation on takeover bids in EU but since the Member States have implemented and interpreted the Directive differently; neither is this purpose accomplished. With this project I intend to illuminate some of the purposes behind the Takeover Directive and to clarify why they have not been able to be achieved. In addition, I will examine the implementation of the Directive by a comparison between Sweden, the UK and Germany and explore whether the implementation of the Directive has affected the Member States’ national law. Finally, owing to the Member States’ various regulations of corporate governance, legal structure and market economy; I will explain the problems with a mutual regulation on takeover bids in the EU.

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