Opinion of the Advocate General — ECLI:EU:C:2017:212
Date: 2017-03-15
Language of the case: Italian
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Third Chamber), 20 July 2017 1. Freedom of establishment — Companies – Directive 2004/25 — Takeover bids – Protection of minority shareholders, mandatory offer and equitable price — Option for Member States to enable their supervisory authorities to adjust the price of the bid in certain circumstances and according to specified criteria — Condition — Fixing those circumstances in compliance with the principle of the interests of the holders of the securities of the company concerned by the takeover by a natural or legal person (European Parliament and Council Directive 2004/25, Arts 3(1) and 5(1) and (4), first and second paras) 2. Freedom of establishment — Companies — Directive 2004/25 — Takeover bids — Protection of minority shareholders, mandatory offer and equitable price — Option for Member States to enable their supervisory authorities to adjust the price of the bid in certain circumstances and according to specified criteria — National law enabling the adjustment of the price of a bid in the event of collusion between the offeror or persons acting in concert with it and one or more sellers — Lack of detail as to the specific conduct that characterise the notion of collusion — Lawfulness — Condition — Notion can be deduced from that law in a sufficiently clear, precise and foreseeable manner (European Parliament and Council Directive 2004/25, Art. 5(4), second para.) 1. First of all, Article 5(1) of Directive 2004/25 lays down the principle of the mandatory bid for the acquisition of the holdings of securities in a given company. It provides that where a natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in concert with him/her, holds securities of a company falling within the scope of application of thats directive which, added to any existing holdings of those securities of his/hers and the holdings of those securities of persons acting in concert with him/her, directly or indirectly give him/her a specified percentage of voting rights in that company, giving him/her control of that company, Member States must ensure that such a person is required to make a bid as a means of protecting the minority shareholders of that company, and that bid is to be addressed to all the holders of those securities for all their holdings at the equitable price as defined in Article 5(4) of the directive. Next, also in order to ensure the protection of minority shareholders in the company subject to the takeover bid, in accordance with the first paragraph of Article 5(4) of Directive 2004/25 the equitable price is regarded as, primarily, the highest price paid for the same securities by the offeror, or by persons acting in concert with him/her, during a period determined by the Member States of no less than six months and no more than twelve months before the bid referred to in Article 5(1) of that directive. Finally, the second paragraph of Article 5(4) of Directive 2004/25 provides that, subject to compliance with the principles set out in Article 3(1), the Member States may authorise their supervisory authorities, referred to in Article 4 of the directive, to adjust the equitable price in certain circumstances and according to specified criteria. To that end, Member States may, first, draw up a list of circumstances in which the highest price may be adjusted either upwards or downwards, and, second, determine the criteria to be applied in such cases, it being specified that those circumstances and criteria must be clearly determined. Examples of such circumstances and such criteria are mentioned in the second paragraph of Article 5(4) of the directive. It is clear from those provisions that, where a Member State decides to authorise the supervisory authority to adjust the equitable price, defined in the first paragraph of Article 5(4) of Directive 2004/25, in order to set the price at which a takeover bid must take place, that power of adjustment must be exercised in compliance with the guiding principles referred to in Article 3(1) of that directive. In that regard, when it fixes, in accordance with the second paragraph of Article 5(4) of the directive, the determined circumstances in which the said power of adjustment may be exercised, the Member State must take account in particular of the principle of protection of the interests of holders of the securities of the company of which control was taken by a natural or legal person, laid down in Article 3(1). (see paras 29-33) 2. The second paragraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids must be interpreted as not precluding a national law, such as that at issue in the main proceedings, which enables a national supervisory authority to adjust upwards the price of a takeover bid in the event of ‘collusion’ without setting out the specific conduct that characterises that notion, provided that the interpretation of that notion can be deduced in a sufficiently clear, precise and foreseeable manner from that law, using methods of interpretation recognised by the national law. In the first place, it must be observed that the second paragraph of Article 5(4) of Directive 2004/25 confers on Member States a degree of discretion in defining the circumstances in which their supervisory authorities may adjust the equitable price, on condition, however, that those circumstances are clearly determined. That provision indicates that Member States may draw up a list of such circumstances and mentions, for that purpose, a number of examples that refer to general formulations to illustrate the circumstances likely to justify an upwards or downwards adjustment to the equitable price, such as an agreement between the purchaser and the seller, exceptional events or a manipulation of the price of the securities at issue. In such a context, as the Advocate General observed, in essence, in paragraphs 52 to 53 of his opinion, the second paragraph of Article 5(4) of Directive 2004/25 cannot be interpreted as precluding a Member State from having recourse, in the legislation that it adopts in order to transpose that provision, to an abstract legal notion, such as, in the present case, that of ‘collusion’, as a clearly determined circumstance within the meaning of that provision. It is true that, both the principle of legal certainty and the need to secure the full implementation of directives, in law and not only in fact, require that all Member States reproduce the rules of the directive concerned within a clear, precise and transparent framework providing for mandatory legal provisions in the field concerned (judgments of 16 November 2000, Commission v Greece, C‑214/98, EU:C:2000:624, paragraph 23, and of 14 January 2010, Commission v Czech Republic, C‑343/08, EU:C:2010:14, paragraph 40). Nevertheless, those requirements cannot be regarded as requiring a norm that uses an abstract legal notion to refer to the various specific hypotheses in which it applies, given that all those hypotheses could not be determined in advance by the legislature. Therefore, the second paragraph of Article 5(4) of Directive 2004/25 cannot be interpreted as requiring a Member State, which, in the legislation that it adopts in order to transpose that provision, provides, as in the case in the main proceedings, the ‘collusion between an offeror or persons acting in concert with it and one or more sellers’ as being one of the clearly determined circumstances within the meaning of that provision, which sets out the specific conduct that characterises such a collusion. Nevertheless, in order to satisfy the requirement for legal certainty, Member States must ensure that the interpretation that must be given to such a notion in the field of takeover bids can be deduced in a sufficiently clear, precise and foreseeable manner from the national law at issue using methods of interpretation recognised by the national law. (see paras 37-39, 41-43, 46, 48, operative part)