European Communities (Takeover Bids (Directive 2004/25 EC)) Regulations 2006
Source: Iris Oifigiúl 2006-05-26

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paragraphs: (1) These Regulations may be cited as the European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006.
(2) In relation to a company referred to in Regulation 4(1), the Act of 1997 and Parts 1, 2 and 3 shall be read together as one.
(3) In relation to a company referred to in Regulation 21(1), the Companies Acts and Part 4 shall be read together as one.
(4) In relation to a body corporate referred to in Regulation 22, the Companies Acts and Part 5 shall be read together as one.
(5) These Regulations come into operation on 20 May 2006.
Interpretation
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paragraphs: (1) In these Regulations -
“Act of 1997” means the Irish Takeover Panel Act 1997 (No. 5 of 1997);
“collective investment undertakings other than the closed-end type” means investment companies -
(a) the object of which is the collective investment of capital provided by the public, which operates on the principle of risk-spreading, and
(b) the units of which are, at the holders' request, repurchased or redeemed directly or indirectly, out of the assets of those companies,
and, for the purposes of this definition, action taken by such companies to ensure that the stock exchange value of their units does not vary significantly from their net asset value shall be regarded as equivalent to such repurchase or redemption;
“company” means a company within the meaning of the Companies Act 1963 (No. 33 of 1963) or any other body corporate;
“Directive” means Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids;
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;
“EEA State” means a state which is a contracting party to the EEA Agreement;
“Member State” means -
(a) a Member State of the European Communities, or
(b) an EEA State;
“offeree company” means a company, the securities of which are the subject of a bid;
“offeror” means any natural or legal person governed by public or private law making a bid;
“opted-in company” means a company in relation to which -
(a) an opting-in resolution has effect, and
(b) the conditions in Regulation 16(2) continue to be met;
“opting-in resolution” has the meaning assigned to it by Regulation 16;
“opting-out resolution” has the meaning assigned to it by Regulation 16;
“parties to the bid” means the offeror, the members of the offeror's board if the offeror is a company, the offeree company, holders of securities of the offeree company and the members of the board of the offeree company, and persons acting in concert with such parties;
“regulated market” means a market as defined by Article 1(13) of the Directive 93/22/EEC;
“security holder” means the holder of securities;
“securities” means transferable securities carrying voting rights in a company;
“takeover bid” or “bid” means a public offer (other than by the offeree company itself) made to the holder of the securities of a company governed by the law of a Member State to acquire all or some of those securities, whether mandatory or voluntary, which follows or has as its objective the acquisition of control of the offeree company in accordance with the law of a Member State;
“Panel” means the Irish Takeover Panel;
“voluntary bid” means a bid which is a voluntary offer under the rules made by the Panel under section 8 of the Act of 1997.
(2) A word or expression that is used in these Regulations and is also used in the Directive shall have in these Regulations the same meaning as it has in the Directive.
Non-application of Regulations
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paragraphs: (1) These Regulations shall not apply to -
(a) securities issued by collective investment undertakings, other than the closed-end type, or
(b) securities issued by a Central Bank of a Member State.
(2) These Regulations shall not apply to a bid made before the commencement of these Regulations.
Part 2
Jurisdiction of Panel and Application of Act of 1997
Application of Act of 1997
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paragraphs: (1) Subject to these Regulations, the Act of 1997 shall apply to each company a bid in respect of which the Panel has (by virtue of Regulation 6) jurisdiction to supervise.
(2) Paragraph (1) does not affect the continued application of the Act of 1997 to companies which, though falling within the definition of “relevant company” in section 2 of that Act (as that section has effect apart from the operation of this Regulation), do not fall within paragraph (1).
(3) For the purpose of the application of the Act of 1997 by paragraph (1), each reference in that Act to a “relevant company” shall be read as including a reference to a company referred to in paragraph (1).
Competent authority
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paragraphs: The Panel is designated as the competent authority for the purpose of Article 4(1) of the Directive.
Jurisdiction of Panel
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paragraphs: (1) Subject to paragraphs (3) and (4), the Panel shall be the competent authority to supervise a bid -
(a) if the offeree company has its registered office in the State - in a case where the securities of it are admitted to trading on a regulated market in the State ( whether or not they are also admitted to trading on relevant markets in one or more other Member States),
(b) if the offeree company has its registered office in a Member State other than the State - in a case where the securities of it are admitted solely to trading on a regulated market in the State,
(c) in each of the cases specified in paragraph (2) if the following conditions are satisfied -
(i) the offeree company does not have its registered office in the State, and
(ii) none of the Member States referred to in the cases so specified is the state in which the offeree company has its registered office.
(2) The cases mentioned in paragraph (1)(c) are -
(a) the securities of the offeree company are admitted to trading on regulated markets in more than one Member State (including the State but the regulated market on which they were first admitted to trading is a regulated market in the State,
(b) the securities of the offeree company have been admitted to trading on regulated markets in more than one Member State (including the State simultaneously and the offeree company determines, in accordance with Article 4(2)(c) of the Directive, that the Panel shall be the competent authority to supervise the bid,
(c) the securities of the offeree company have already been admitted to trading on regulated markets in more than one Member State (including the State) on the date laid down in Article 21(1) of the Directive and were admitted simultaneously and -
(i) the supervisory authorities of those Member States agree, in accordance with Article 4(2)(c) of the Directive, that the Panel shall be the competent authority to supervise the bid, or
(ii) in default of such agreement, the offeree company determines in accordance with Article 4(2)(c) of the Directive, that the Panel shall be the competent authority to supervise the bid.
(3) In a case specified in paragraph (1)(b), or in any of the cases specified in paragraph (2) where the conditions referred to in paragraph (1)(c) are satisfied in respect of it -
(a) as regards matters relating to the consideration offered in the case of a bid, in particular the price, and matters relating to the bid procedure, in particular the information on the offeror's decision to make a bid, the contents of the offer document and the disclosure of the bid, those matters shall be dealt with in accordance with the rules of the Panel,
(b) as regards matters relating to the information to be provided to the employees of the offeree company and matters relating to company law, in particular the percentage of voting rights which confers control and any derogation from the obligation to launch a bid, as well as the conditions under which the board of the offeree company may undertake any action which might result in frustration of the bid, the applicable rules and the competent authority in relation to them shall be those of the Member State in which the offeree company has its registered office.
(4) In a case where -
(a) the offeree company has its registered office in the State, and
(b) the securities of it are admitted to trading solely on a regulated market in one or more other Member States,
as regards the matters specified in paragraph (3)(b), the applicable rules and the competent authority in relation to them shall be those of the State.
(5) Where, in accordance with Article 4(2)(c) of the Directive -
(a) the supervisory authorities of Member States agree that the Panel shall be the competent authority to supervise a bid, or
(b) the offeree company determines that the Panel shall be the competent authority to supervise a bid,
the Panel shall ensure that notice of that agreement or determination is published by the offeree company in at least one daily newspaper circulating in the State.
General principles
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paragraphs: The Panel shall ensure compliance with the following principles when performing its functions in accordance with these Regulations:
(a) all holders of the securities of an offeree company of the same class must be afforded equivalent treatment; moreover, if a person acquires control of a company, the other holders of securities must be protected,
(b) the holders of the securities of an offeree company must have sufficient time and information to enable them to reach a properly informed decision on the bid; where it advises the holders of securities, the board of the offeree company must give its views on the effects of implementation of the bid on employment, conditions of employment and the locations of the company's places of business,
(c) the board of an offeree company must act in the interests of the company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the bid,
(d) false markets must not be created in the securities of the offeree company, of the offeror company or of any other company concerned by the bid in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted,
(e) an offeror must announce a bid only after ensuring that he or she can fulfil in full any cash consideration, if such is offered, and after taking all reasonable measures to secure the implementation of any other type of consideration,
(f) an offeree company must not be hindered in the conduct of its affairs for longer than is reasonable by a bid for its securities.
Acting in concert - definition for certain purposes
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paragraphs: (1) Without prejudice to the continued application of section 1(3) of the Act of 1997, in its terms as originally enacted, to companies referred to in Regulation 4(2) paragraph (2) has effect in relation to the application of the Act of 1997 by virtue of Regulation 4(1).
(2) For the purposes of that application, section 1 of the Act of 1997 has effect as if the following subsection were substituted for subsection (3):
“(3) (a) In this Act ‘persons acting in concert’ means persons who cooperate on the basis of an agreement, either express or tacit either oral or written, aimed at acquiring control of the offeree company or at frustrating the successful outcome of a bid.
(b) For the purposes of this subsection, persons controlled by another person within the meaning of Article 87 of Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 shall be deemed to be persons acting in concert with that other person and with each other.”.
Cooperation with other authorities
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paragraphs: (1) Without prejudice to section 17 of the Act of 1997, the Panel shall, in so far as it is reasonably able to do so, supply to relevant authorities in other Member States information wherever necessary for the application of measures adapted in those states to implement the Directive. This cooperation shall extend in particular to cases the subject of measures adapted to implement Article 4(2)(b), (c) and (e) of the Directive.
(2) Without prejudice to the generality of paragraph (1), such cooperation shall extend to the Panel's serving documents or notices necessary to enforce measures taken by relevant authorities in connection with bids as well as providing such other assistance as may reasonably be requested by the relevant authority concerned for the purpose of investigating any actual or alleged breaches of measures adapted in another Member State to implement the Directive.
(3) There is, by virtue of this Regulation, vested in the Panel all such powers as are necessary so as to enable it to do each of the things referred to in paragraphs (1) and (2).
(4) In this Regulation “relevant authorities” means competent authorities designated for the purposes of the Directive and authorities, designated by Member States for the purposes of supervising capital markets, in particular in accordance with -
(a) Council Directive 93/22/EEC of 10 May 1993,
(b) Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001,
(c) Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003,
(d) Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003, and
(e) Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004.
Powers of Panel
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paragraphs: (1) The Panel shall have all the powers necessary for the performance of the functions conferred on it by these Regulations, including that of ensuring that the parties to a bid comply with the rules made by the Panel.
(2) In exercising its powers under this Regulation, the Panel shall not do so in a manner or for a purpose inconsistent with the Directive or these Regulations.
(3) Without prejudice to the generality of its powers under section 8 of the Act of 1997, the Panel is empowered, by virtue of this Regulation, to specify in rules under that section circumstances in which the Panel is enabled to grant derogations from, or waive, any rules under that section.
(4) The powers of the Panel under this Regulation are in addition to, and not in substitution for, the powers of the Panel under the Act of 1997.
(5) If the Panel grants a waiver pursuant to subsection (7) of section 8 of the Act of 1997 (as distinct from pursuant to a power in that behalf in rules made, by virtue of paragraph (3), under that section 8) a reasoned decision shall be given by the Panel for granting the waiver.
(6) Without prejudice to section 9(5) of the Act of 1997, the Panel may require a person to provide to the Panel, at any time on request being made by the Panel therefor, all the information in the person's possession concerning a bid that is deemed necessary by the Panel for the purpose of the Panel performing its functions.
(7) For the avoidance of doubt, the functions of the Panel in relation to a bid shall not be regarded as having ceased merely by reason of either of the lapse or the completion of the bid.
Rules of Panel
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paragraphs: (1) The Irish Takeover Panel Act 1997 , Takeover Rules 2001 to 2005 shall, in so far as they do not already apply to bids in relation to each Directive company, apply to bids in relation to each such company, but subject to the amendments mentioned in paragraph (2).