# EUR-Lex - 52012DC0347 - EN

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# 52012DC0347

**REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Application of Directive 2004/25/EC on takeover bids /* COM/2012/0347 final */**

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REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE
AND THE COMMITTEE OF THE REGIONS

Application of Directive 2004/25/EC on
takeover bids

(Text with EEA relevance)

1.           Introduction

1.           This report reviews the application
of Directive 2004/25/EC[1]
on takeover bids (hereinafter: "the Takeover Bids Directive" or
"the Directive"), in accordance with Article 20 of the Directive.

2.           The Takeover Bids
Directive contains minimum guidelines for the conduct of takeover bids,
including disclosure, involving securities with voting rights of companies
governed by the laws of Member States, where all or some of these shares are
admitted to trading on a regulated market.

3.           The objectives pursued by
the Takeover Bids Directive are important to financial markets and stakeholders
of listed companies. More specifically, the objectives of the Directive are:

·
Legal certainty on the conduct of takeover bids
and community-wide clarity and transparency in respect of takeover bids;

·
Protection of the interests of shareholders, in
particular minority shareholders, and of employees and other stakeholders
through transparency and information rights, when a company is subject to a
takeover bid or change of control;

·
Facilitation of takeover bids, through
reinforcement of the freedom to deal in and vote on securities of companies and
prevention of operations which could frustrate a bid;

·
Reinforcing the single market, by enabling free
movement of capital throughout the EU.

4.           The Takeover Bids
Directive is based on general principles[2],
which should be complied with by Member States for the purpose of transposing
the Directive. The principles include:

·
Equal treatment of
shareholders;

·
Protection of minority shareholders in case of
change of control;

·
Prohibition of market manipulation or abuse; and

·
Shareholders must have sufficient time and
information to make a properly informed decision on the bid.

Any exemptions made by Member States to the
rules of the Directive must still comply with these principles, as well as the
other principles listed therein.

5.           This report describes the
impact of the Takeover Bids Directive and how it has been complied with
(section 2); identifies the main issues emerging from the application of the
Directive (section 3) and draws a number of conclusions (section 4).

2.           Impact
of and compliance with the Takeover Bids Directive

6.           The External Study on the
application of the Takeover Bids Directive conducted on behalf of the
Commission (hereinafter "the External Study")[3] considers that the Takeover
Bids Directive has not led to major changes in the legal framework of the
Member States included in the study[4],
because similar rules already existed or were in the making at national level
prior to the adoption of the Directive.

7.           With regard to the transposition
of the optional provisions of the Takeover Bids Directive, the External Study,
the 2007 Commission Staff Report on the implementation of the Directive[5] and further research conducted
by the Commission show that 19[6]
Member States have transposed the board neutrality rule[7], while only three Member States[8] have transposed the
breakthrough rule[9].
In accordance with article 12 (3) of the Directive, about half of the Member
States[10]
allow companies who are subject to the board neutrality rule and/or
breakthrough rule (by law or based on the articles of association of the
company) not to apply the rule when they are confronted with a takeover bid by
an offeror who is not subject to the same rule (reciprocity).

8.           With regard to the
application of the legal framework in the Member States, no structural compliance
issue has emerged.

9.           The External Study
considers that the Takeover Bids Directive has contributed to improvements in
relation to its objectives, for instance through the introduction of
coordination rules for supervisors with regard to cross border offers, general
principles of the directive, disclosure rules, the mandatory bid rule and squeeze-out
and sell-out rights.

10.         Stakeholders who
participated in the perception survey, conducted for the preparation of the
External Study, consider the Takeover Bids Directive to be useful for the
proper and efficient functioning of the market. Stakeholders are generally satisfied
with the clarity of the rules included in the Directive and the adequacy of
their enforcement. Stakeholders generally believe that the Directive has
strengthened the position of minority shareholders and are positive about the
disclosure regime, the mandatory bid rule and the squeeze-out and sell-out
rights included in the Directive. Representatives of employees, consulted
through the perception survey, are however less satisfied with the Directive.
In particular, they expressed the view that the Directive does not sufficiently
protect employees against the risk of change in working conditions or redundancies
after the takeover.

11.         With regard to the optional
provisions of the Takeover Bids Directive, which regulate the use of defensive
measures, stakeholders appear to believe that they had little effect. For
instance, the External Study shows that stakeholders perceive that the
Directive did not have a significant effect on the number of bids and that,
notwithstanding the existence of the Directive, a high number of mostly pre-bid
defences is used in Europe. However, they also expressed the view that there
are sufficient possibilities to break through defences even though most Member
States have not transposed the breakthrough rule.

12.         It is difficult to calculate
the impact of the Takeover Bids Directive on the economy, mainly because there
have been few takeover bids in the EU since the transposition of the Directive[11], due to the economic situation
in the EU following the financial crisis[12].
Moreover, the minimum harmonisation character of the Directive, together with
the optional character of the articles with regard to defensive measures and
the possibility in article 4 (5) of the Directive, for Member States to
derogate from the rules of the Directive has led to a wide variety of national rules
in the field of takeover bids.

More generally, economic analysis[13] shows that although takeover
bids promote economic efficiency in theory, this is not always the case in
practice because the conditions of rational behaviour, fully informed market
participants and absence of transaction costs are not always met (e.g. takeover
bids might be made for empire building purposes and shareholders might face
incomplete information, high transaction costs and pressure to tender).
Moreover, some provisions of the Directive, e.g. the board neutrality rule, the
breakthrough rule and the squeeze-out right, facilitate takeover bids, while
others, e.g. the mandatory bid rule, may serve as a deterrent to takeover bids[14].

13.         A comparison with third
countries[15]
shows that takeover bid legislation in those countries is based on similar
principles to those in the Takeover Bids Directive. An exception is the
principle of protection of employees through information rights, which is in
general not present in the third countries investigated. The duration of a
takeover bid and the information that needs to be provided is also similar in
the EU and in third countries. Most investigated third countries, except the
United States, have a mandatory bid rule or a similar rule in their
legislation, under which the control threshold is usually around 30% or one
third, which is also similar to the EU (the Takeover Bids Directive leaves it
to Member States to define the control threshold, but most Member States have
chosen 30% or one third). With regard to defensive measures, the comparison
shows that they are used in all investigated third countries, and that most of
these countries (except the United States) have an equivalent to the board
neutrality rule. However, there is no equivalent to the breakthrough rule
included in the legislation of any investigated third country. With regard to
squeeze-out and sell-out rights, a limited number of investigated third
countries do not have such rules. However, there are other mechanisms present
that have similar effects (e.g. callable shares in Japan and compulsory
acquisitions in Australia and cash mergers in Switzerland). Some third
countries also offer the possibility to obtain full ownership of a company
through the use of schemes of arrangement.

14.         Article 20 of the Takeover
Bids Directive instructs the Commission to include in its examination of the
Directive a survey of control structures and barriers to takeover bids that are
not covered by the Directive. The External Study
investigated pyramid structures[16]
and cross-shareholdings, which are not covered by the Takeover Bids Directive.
It finds that 18,1% of listed companies in the Member States included in the
study have pyramid structures, while 3,5% have cross-shareholdings[17]. This is consistent with the
fact that EU continental shareholding structures are to a large extent based on
block holding. It concludes that, although pyramid structures remain a popular
mechanism to retain control of a company with less capital, both mechanisms are
considered weak defences against takeovers. The External Study also considers
that other possible barriers to takeovers, such as sector-specific regulations,
public funds, co-determination procedures and employee share ownership do not
create strong or unjustified obstacles[18].

3.           The
review of the operation of the Directive: emerging issues

15.         A number of issues emerge
from the review of the operation of the Takeover Bids Directive.

16.         Firstly, there is some
concern about the legal certainty of the concept of "acting in concert"
and its application by national regulators. The concept of "acting in
concert" is relevant for calculating whether the control threshold has
been crossed and, consequently, whether an obligation to launch a mandatory bid
has arisen. Article 2 (1) (d) of the Takeover Bids Directive defines
"acting in concert" as:

"natural or legal persons who cooperate
with the offeror or the offeree company on the basis of an agreement, either
express or tacit, either oral or written, aimed either at acquiring control of
the offeree company or at frustrating the successful outcome of a bid".

Member States have transposed the definition in
different ways. For instance, some Member States[19] stay close to the definition
given in the Takeover Bids Directive, while others[20] have included elements of the
definition of "acting in concert" given in the Transparency Directive[21]. Moreover, the concept of
"acting in concert" is also included in the Acquisitions Directive[22]. The broad definition of the
term, included in the Acquisitions Directive's level 3 guidance,[23] is however not used by
regulators in connection with takeover bids. To mitigate uncertainty around the
application of the concept of "acting in concert" some national
regulators[24]
have issued interpretative guidelines or presumptions. However, the content of
these guidelines is not the same. The existence of different definitions and interpretations
on national level is a source of uncertainty for international investors who wish
to cooperate with each other and might have a limiting effect on their
willingness to engage actively with investee companies. This is confirmed by
respondents to the Commission Green Paper on the EU Corporate Framework[25] who expressed the view that
there is a need to clarify existing provisions on "acting in concert"[26].

17.         Secondly, the wide range of
national derogations to the mandatory bid rule raises the question as to whether
the mandatory bid rule adequately protects minority shareholders in situations
of change of control. Article 4 (5) of the Takeover
Bids Directive allows Member States to make derogations from the rules of the
Directive by providing that:

"Provided that the general principles laid
down in Article 3(1) are respected, Member States may provide in the rules that
they make or introduce pursuant to this Directive for derogations from those
rules:

i. by including such derogations in their
national rules, in order to take account of circumstances determined at
national level and/or

ii. by granting their supervisory authorities,
where they are competent, powers to waive such national rules, to take account
of the circumstances referred to in (i) or in other specific circumstances, in
which case a reasoned decision must be required.

All Member States included in the External
Study have made derogations to the mandatory bid rule. Derogations can be
divided into a number of categories[27]:

·
Discretionary power of the national supervisory
authority to grant an exemption. Only a few Member States[28] have used this possibility;

·
Whitewash procedures where shareholders may
decide to waive the obligation to launch a mandatory bid;

·
Technical derogations, such as a derogation for
open-ended collective investment schemes (which are outside the scope of the
Directive), which do not limit the scope of application of the mandatory bid
rule as foreseen by the Directive;

·
Situations where there is no real change of
control, for instance when the change of control is temporary
or the acquisition has taken place within the same company group or "acting
in concert" group. These derogations do not affect
the objective of the directive to protect minority shareholders in situations
of change of control;

·
To protect the interests of the offeror or the
controlling shareholder, for instance when the change of control was not caused
by a voluntary act, the acquisition was indirect, or followed a personal event,
such as inheritance;

·
To protect the interests of a creditor, for
instance in situations where the acquisition is the consequence of an exercise
of financial security by a creditor;

·
To protect the interests of other stakeholders,
for instance when an investor is in financial distress, when control is
acquired through a specific type of corporate transaction, such as a merger or
scheme of arrangement, or when control is acquired following a sale of
securities by the state.

Within the range of
different national derogations to the mandatory bid rule, it is not always
clear how the protection of minority shareholders is ensured. As follows from
Article 4 (5) of the Directive Member States who provide for derogations from
the rules of the Directive, must respect the general principles of the
Directive. One of the general principles is that, if a person acquires control
of a company, the other holders of securities must be protected (Article 3 (a)
of the Directive). The Directive does not regulate how Member States should
ensure that the general principles of the Directive are respected.

18.         Thirdly, Article 5 (2) of
the Takeover Bids Directive regulates that where
control has been acquired following a voluntary bid to all the holders of
securities for all their holdings, the obligation to launch a mandatory bid no
longer applies. It has come to the attention of the Commission that this
exemption can be used by offerors to avoid having to launch a mandatory bid for
an equitable price. The advantage for the offeror is that the Directive does
not regulate the price of a voluntary bid. The exemption for situations where
control has been acquired following a voluntary bid assumes that the offer price
was high enough to persuade a significant part of the shareholders to accept
the offer, otherwise the offeror would not have acquired control through the
bid. However, if the offeror already holds an interest very close to the
control threshold, only a few shareholders need to offer their shares for the
offeror to cross the control threshold. Therefore, even if the offeror offers a
very low price, he is likely to acquire control through the voluntary bid and
thus is able to make use of the exemption to the mandatory bid rule. In this
case, minority shareholders are unable to share in the control premium. However,
in a number of Member States this route is unavailable because national law provides
that the offer must be subject to the condition that the offeror acquires a
minimum percentage of the shares[29]
or subsequent acquisitions of shares will trigger a mandatory bid[30].

It has also been argued that offerors can
acquire a controlling stake without having to launch a mandatory bid by keeping
their participation just below the control threshold, while de facto they are
able to control the company, or by acquiring a derivative position[31].

19.         Fourthly,
with regard to the optional articles of the Takeover Bids Directive, it could
be concluded that, although the board neutrality rule is a relative success[32], the breakthrough rule was not
so successful, given that only three Member States have transposed it. At the
moment of adoption of the Directive, the idea was that shareholders might push
for the optional provisions to be applied voluntarily by companies, where
Member States chose not to transpose them. However, this appears not to have
been the case. It could therefore be considered that the Directive is not very
effective in regulating the use of defensive measures. This is confirmed by
stakeholders. However, they have also indicated that
there are, notwithstanding the lack of transposition of the breakthrough rule,
sufficient possibilities to break through takeover defences (see paragraph 11 of this report).

20.         Fifthly, the Takeover Bids Directive requires that representatives of employees
of the offeree company and the offeror must be informed in detail in the event
of a takeover bid[33].
The information provided to employee representatives should include a statement
of the offeror's intentions as regards the future business of the offeree
company and the offeror with a view to repercussions on employment and
employment conditions[34]
and a statement of the view of the board of the offeree company on the offer
and its likely repercussions on employment[35].
The External study shows that representatives of employees are not satisfied
with how the Directive safeguards the interests of employees. They mention that
the required information is not always given in time, or is inadequate, and
that takeover offers have a significant impact on working conditions and redundancies.
Moreover, after the bid, they claim that there is no control over whether the
offeror will do as he stated in the information disclosed in the offer
procedure. This is however not regulated by the Directive.

4.           Conclusions

21.         This review of the
operation of the Takeover Bids Directive shows that, generally, the regime
created by the Directive is working satisfactory. No structural compliance
issues have emerged in relation to the application of the legal framework in
the Member States. Stakeholders are generally satisfied with the clarity of the
rules included in the Directive and the adequacy of their enforcement and
consider the Directive be useful for the proper and efficient functioning of
the market. The External Study considers that the Takeover Bids Directive has
contributed to improvements in relation to its objectives.

22.         Nevertheless, there are
areas where the rules of the Takeover Bids Directive could merit some clarification
in order to improve legal certainty for the parties concerned and the effective
exercise of (minority) shareholder rights.

23.         Firstly, the concept of
"acting in concert" could be clarified on EU level, in order to provide
more legal certainty to international investors as to the extent to which they
can cooperate with each other without being regarded as "acting in
concert" and running the risk of having to launch a mandatory bid. Clarification
could, for instance, be provided through the development of guidelines, from
the Commission and/or ESMA. Such clarification would give greater opportunity
to shareholders to hold boards accountable for their actions and promote good
corporate governance standards in listed companies in the EU. However it should
not limit the ability of competent authorities to oblige control seeking
concert parties to accept the legal consequences of their concerted action. Possible
initiatives in this area would be in line with the goals of the Commission's
Green Paper on the EU Corporate Governance Framework and its Communication
"Towards a Single Market Act"[36]
to promote longer term, sustainable ownership to the benefit of sustainable
growth of the European market. The Commission intends to announce what measures
it intends to take in this area in October 2012.

24.         Secondly, the review shows
that there is a wide variety of national derogations to the mandatory bid
rule and that it is not always clear how the general principle of the
directive, which requires the protection of minority shareholders in situations
of change of control, is respected when a national derogation applies. As a possible
way forward, the Commission intends to carry out further investigation on how
minority shareholders are protected when a national derogation to the mandatory
bid rule applies. More information is indeed needed on the scope of application
of national derogations to the mandatory bid rule, on the extent to which
national derogations limit the protection of minority shareholders in
situations of change of control and, when relevant, what alternative mechanisms
exist in national law to protect minority shareholders in situations of change
of control. If, following the investigation, the protection of minority
shareholders proves to be inadequate, the Commission will take the necessary
steps (e.g through infringement procedures) to restore the effective
application of this general principle of the Directive.

25.         Thirdly, the review shows
that the exemption to the mandatory bid rule included in the Takeover Bids
Directive, for situations where control has been acquired following a voluntary
bid for all shares of the company, has created a possibility for offerors
to get round the mandatory bid rule by acquiring a stake close to the mandatory
bid threshold and then launching a voluntary bid for a low price. As a
consequence, the offeror would cross the mandatory bid threshold without giving
minority shareholders a fair chance to exit the company and share in the
control premium. This technique is clearly not in line with the objective of
the Directive to protect minority shareholders in situations of change of
control, although it does not appear to breach the letter of the Directive[37]. Examples in national
legislation, such as additional mandatory bid thresholds[38] or minimum acceptance
conditions to takeover offers[39],
show that there are possibilities to prevent the use of this technique. The Commission
will take the appropriate steps to discourage the use of this technique across
the EU, such as through bilateral discussions with the concerned Member States
or Commission Recommendations.

26.         Fourthly, with regard to
the optional Articles 9 and 11 of the Takeover Bids Directive the review
shows that although the board neutrality rule (Article 9) is transposed by a
relatively large number of the Member States, this is not the case for the
breakthrough rule (Article 11)[40].
However, the lack of application of the optional rules does not seem to have
been a major obstacle to takeover bids in the EU, given that stakeholders have
indicated that there are sufficient possibilities to break through takeover
defences. In light of this and considering also the lack of economic evidence
available to justify changing the situation, it does not, therefore, seem
appropriate at this stage to propose to make the optional articles of the
Directive mandatory.

27.         Finally, employee representatives
have indicated that they are not satisfied with how the Takeover Bids Directive
protects the rights of employees in a takeover situation, in particular with
respect to the risk of changes in work conditions and job availability. The
Commission will pursue its dialogue with employee representatives with a view
to exploring possible future improvements. It will also investigate further the
experience gained in practice with the provisions of the Directive which
require disclosure of the offeror's intentions as regards the future business
of the company and its employment conditions and the view of the offeree
company's board on this, as well as disclosure of information concerning the
financing of the bid and the identity of the offeror[41].

28.         Member States, the European
Parliament, the European Economic and Social Committee and other interested
parties are invited to submit their views on the review described in this
Report.

ANNEX TO THE REPORT FROM THE COMMISSION
TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL
COMMITTEE AND THE COMMITTEE OF THE REGIONS

Application
of Directive 2004/25/EC on takeover bids

Figure 1: Evolution of takeovers in Europe

Source: External
Study, p. 284

Figure 2: Number of Intra-EU Takeover Deals
2003-2010

Source: External
Study, p. 285

Figure 3: Impact of takeover regulation (+
relationship and intensity)

Source: External
Study, p.29

Figure 4: Barriers to takeovers not covered
by the Takeover Bids Directive. Percentage of companies that have pyramid
structures or cross-shareholdings.

Source: External
Study, p. 48

[1]               Directive
2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover
bids, OJ L 142/12 of 30.03.2004, p.38. Available at: htp://ec.europa.eu/internal_market/company/official/index_en.htm

[2]               See Article 3 of the Directive.

[3]               Marccus Partners, in cooperation with the Centre for
European Policy Studies (June 2012), Study on the application of Directive
2004/25/EC on takeover bids. Available at: http://ec.europa.eu/internal_market/company/takeoverbids/index_en.htm

[4]               Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Ireland, Italy, Luxembourg, the
Netherlands, Poland, Portugal, Romania, the Slovak Republic, Spain, Sweden and
the United Kingdom

[5]               Commission Staff Working Document. Report on the
Implementation of the Directive on Takeover Bids, 21 February 2007, SEC(2007) 268.

[6]               Austria, Bulgaria, Cyprus, the Czech Republic,
Estonia, Finland, France, Greece, Ireland, Italy, Latvia, Lithuania, Malta,
Portugal, Romania, Slovenia, the Slovak Republic, Spain and the United Kingdom

[7]               The board neutrality rule (Article 9 of the Directive)
provides that during the bid period the board of the offeree company must
obtain prior authorisation from the general meeting of shareholder before taking
any action which might result in the frustration of the bid.

[8]               Estonia, Latvia and Lithuania

[9]               The breakthrough rule (Article 11 of the Directive)
neutralises pre-bid defences during a takeover by making certain restrictions
(e.g. share transfer or voting restrictions) inoperable during the takeover
period and allows a successful offeror to remove the incumbent board of the
offeree company and modify its articles of association.

[10]             Belgium, Denmark, France, Germany, Greece, Hungary,
Italy, Luxembourg, the Netherlands, Poland, Portugal, Slovenia and Spain

[11]             Except a 'peak' in takeovers in 2007, see figure 2 in
the Annex.

[12]             See Figures 1 and 2 in the Annex to this Report.

[13]             See Chapter 4 of the External Study.

[14]             See Figure 3 in the Annex to this Report.

[15]             The External Study includes the following third
countries: Australia, Canada, China, Hong Kong, India, Japan, Russia,
Switzerland and the United States.

[16]             Pyramid structures are structures where an entity holds
a controlling stake in a company, which holds a controlling stake in another
company, which holds a controlling stake in another company, and so on.

[17]             See Figure 4 in the Annex to this Report.

[18]             See page 48 and 267 of the External Study.

[19]             E.g. Austria, Cyprus, Denmark, Italy, Hungary, Ireland,
Luxembourg, the Netherlands, the Slovak Republic and the United Kingdom

[20]             E.g. Belgium, Finland, France, Germany, Poland,
Portugal, Romania, Spain and Sweden

[21]             Directive 2004/109/EC of the European Parliament and
the Council on the harmonisation of transparency requirements with regard to
information about issuers whose securities are admitted to trading on a
regulated market. Article 10 (a) of the Directive defines "acting in
concert" as: "a third party with whom that person or entity has
concluded an agreement, which obliges them to adopt, by concerted exercise of
the voting rights they hold, lasting common policy towards the management of
the issuer in question".

[22]             Directive 2007/44/EC of the European Parliament and the
Council as regards procedural rules and evaluation criteria for the prudential
assessment of acquisitions and increase of holdings in the financial sector

[23]             Level 3 guidance to the Acquisitions Directive considers
persons "acting in concert" when: "each of them decides to
exercise his rights linked to the shares he acquires in accordance with an
explicit or implicit agreement made between them".

[24]             E.g. Italy and the United Kingdom

[25]             Green Paper on the EU Corporate Governance Framework, 4
April 2011, COM (2011) 164 final. Available at: http://ec.europa.eu/internal_market/company/docs/modern/com2011-164_en.pdf#page=2

[26]             See: Feedback Statement, Summary of Responses to the
Green Paper on the EU Corporate Governance Framework. Available at: http://ec.europa.eu/internal_market/company/docs/modern/20111115-feedback-statement_en.pdf

[27]             For a table of different derogations to the mandatory
bid rule and in which Member States they are available, see p. 152 of the
External Study. This report summarises the most common derogations and arranges
them in categories.

[28]             Finland, Ireland and the United Kingdom. In Germany,
Bafin has a limited discretionary power to waive a mandatory bid, while in
France the Court of Appeal upheld a decision from the AMF to grant an
exemption.

[29]             For instance in the United Kingdom, the offer must be
subject to the condition that the offeror acquires at least 50% of the shares.

[30]             For an overview of national provisions defining when
subsequent acquisitions trigger a mandatory bid obligation, see p. 130 of the
External Study.

[31]             The proposal for modification of the Transparency
Directive already includes mandatory disclosure of derivative positions. See: http://ec.europa.eu/internal_market/securities/docs/transparency/modifying-proposal/20111025-provisional-proposal_en.pdf

[32]             See paragraph 7 of this Report.

[33]             See Articles 6 (1), 6 (2) and 8 (2) of the Directive.

[34]             See Article 6 (3) (i) of the Directive.

[35]             See Article 9 (5) of the Directive.

[36]             Communication "Towards a Single Market Act",
April 2011, COM(2011) 206 final. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0206:FIN:EN:PDF

[37]             See article 5, paragraph 2, of the Directive, which
explicitly exempts acquisitions following a voluntary bid for all shares of the
company from the mandatory bid rule.

[38]             See p. 130 of the External Study for an overview of
additional thresholds.

[39]             See p. 146 of the External study.

[40]             See paragraph 7 of this Report.

[41]             See article 3 paragraph 1 (b), article 6, paragraph 3
(i), (l) and (m) and article 9 paragraph 5 of the Directive.