A4-0204/97

Proposal for a 13th European Parliament and Council Directive on company law concerning takeover bids (COM(95)0655 - C4-0107/96 - 95/0341(COD))

The proposal was approved with the following amendments:

(Amendment 1)

Recital 6

>Original text>

Whereas each Member State should designate an authority or authorities to supervise all aspects of the bid and to ensure that parties to takeover bids comply with the rules made pursuant to this Directive; whereas the different authorities must cooperate with one another;

>Text following EP vote>

Whereas each Member State should designate an authority or authorities to supervise all aspects of the bid or a substantial part of the bid procedure and to ensure that parties to takeover bids comply with the rules made pursuant to this Directive; whereas the different authorities must cooperate with one another;

(Amendment 2)

Recital 9

>Original text>

Whereas the addressees of a takeover bid should be properly informed of the terms of the bid by means of an offer document;

>Text following EP vote>

Whereas the addressees of a takeover bid should be properly informed of the terms of the bid by means of an offer document; whereas appropriate information should also be given to the representatives of the staff of the offeree company or directly to the staff;

(Amendment 4)

Article 1

>Original text>

The coordination measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions or other mechanisms or arrangements of the Member States relating to takeover bids for the securities of a company governed by the law of a Member State, where such securities are admitted, wholly or partially, to trading on a market in one or more Member States which is regulated and supervised by authorities recognized by public bodies, operates regularly and is accessible, directly or indirectly, to the public.

>Text following EP vote>

The coordination measures prescribed by this Directive shall apply to the laws, regulations and administrative provisions of the Member States and other mechanisms or arrangements laid down by organizations officially authorized to regulate markets relating to takeover bids for the securities of a company governed by the law of a Member State, where such securities are admitted, wholly or partially, to trading on a market in one or more Member States which is regulated and supervised by authorities recognized by public bodies, operates regularly and is accessible, directly or indirectly, to the public.

(Amendment 5)

Article 2, 3rd indent

>Original text>

- 'offerer' shall mean any natural person or legal entity in public or private law making a bid;

>Text following EP vote>

- 'offerer' shall mean any natural person or legal entity in public or private law making a bid pursuant to the rules of the Member State referred to in Article 4(2);

(Amendment 6)

Article 3(1)

>Original text>

1. Where a natural person or legal entity who as a result of acquisition, holds securities which added to any existing holdings give him a specified percentage of voting rights in a company referred to in Article 1, conferring on him the control of that company, Member States should ensure that rules or other mechanisms or arrangements are in force which either oblige this person to make a bid in accordance with Article 10 or offer other appropriate and at least equivalent means in order to protect the minority shareholders of that company.

>Text following EP vote>

1. Where a natural person or legal entity who as a result of an immediate or short-term acquisition, holds securities which added to any existing holdings give him a specified percentage of voting rights in a company referred to in Article 1, conferring on him the control of that company, Member States should ensure that rules or other mechanisms or arrangements are in force which either oblige this person to make a bid in accordance with Article 10 or offer other appropriate and at least equivalent means in order to protect the minority shareholders of that company.

(Amendment 7)

Article 3(2)

>Original text>

2. The percentage of voting rights which confers control for the purposes of paragraph 1 and the way of its calculation shall be determined by the law of the Member State where the supervisory authority is located.

>Text following EP vote>

2. The percentage of voting rights which confers control for the purposes of paragraph 1 and the way of its calculation shall be determined by the law of the Member State where the supervisory authority is located, in accordance with Article 4(2). It shall also be incumbent on that authority to determine whether and to what extent the provisions of paragraph 1 also apply to the temporary holding of securities or the acquisition of a majority shareholding without the intention of controlling the company.

(Amendment 8)

Article 4(1)

>Original text>

1. Member States shall designate the authority or authorities which will supervise all aspects of the bid. The authorities thus designated may include associations or private bodies. Member States shall inform the Commission of these designations and shall specify all divisions of functions that may be made.

>Text following EP vote>

1. Member States shall designate the authority or authorities which will supervise the entire bid procedure. The authorities thus designated may include associations or private bodies. Member States shall inform the Commission of these designations and shall specify all divisions of functions that may be made.

(Amendment 9)

Article 4(2), 2nd subparagraph (new)

>Text following EP vote>

Failing that, the competent authority shall be that of the Member State on whose regulated market the securities of the company are principally traded during the period of acquisition of the securities conferring control over that company.

(Amendment 10)

Article 4(5)

>Original text>

5. This Directive does not affect the power which courts may have in a Member State to decline to hear legal proceedings and to decide whether or not such proceedings affect the outcome of the bid provided that an injured party enjoys adequate remedies, whether through an appeals procedure operated by the supervisory authority or through the right to take proceedings before the courts to claim compensation.

>Text following EP vote>

5. This Directive does not affect the power of Member States to designate the authorities - judicial or not - responsible for dealing with disputes and to express an opinion on irregularities committed in the course of the bid procedure provided that each injured party has appropriate and adequate legal resources to defend its claim and, where applicable, with a view to securing redress for any damage suffered.

(Amendment 11)

Article 5(1)(c)

>Original text>

(c) the board of an offeree company is to act in the interests of the company as a whole;

>Text following EP vote>

(c) the board of an offeree company is to act in the interests of the company as a whole, including safeguarding jobs;

(Amendment 12)

Article 5(1)(ca) (new)

>Text following EP vote>

(ca) persons who hold shares in either company through investments made by the institutional investment managers responsible for their occupational pension scheme are to be consulted before their collective institutional voting power is used in a takeover bid;

(Amendment 13)

Article 5(1a) (new)

>Text following EP vote>

1a. The supervisory authority referred to in Article 4 shall ensure the publication of a report, annually for a period of five years following a takeover, showing the workforce size of both offerer and offeree companies prior to, and following, a successful bid.

(Amendment 23)

Article 5(2a) (new)

>Text following EP vote>

2a. The supervisory authorities shall ensure that investment fund managers who manage portfolio fund investments in either offerer or offeree companies, and also hold personal shares in either company, are excluded from proceedings.

(Amendment 14)

Article 6(1)

>Original text>

1. Member States shall ensure that rules are in force requiring that the decision to make a bid is made public and that the supervisory authority and the board of the offeree company are informed of the bid before this decision is made public.

>Text following EP vote>

1. Member States shall ensure that rules are in force requiring that the decision to make a bid is made public and that the supervisory authority and the board of the offeree company are informed of the bid before this decision is made public. Within 24 hours of the bid being made public the board of the offeree company shall inform the representatives of its employees or, where there are no representatives, the employees themselves.

(Amendment 15)

Article 6(2)

>Original text>

2. Member States shall ensure that rules are in force requiring the offerer to draw up and make public in good time an offer document containing the information necessary to enable the addressees of the bid to reach a properly informed decision on the bid. Before the offer document is made public, the offerer shall communicate it to the supervisory authority.

>Text following EP vote>

2. Member States shall ensure that rules are in force requiring the offerer to draw up and make public in good time an offer document containing the information necessary to enable the addressees of the bid to reach a properly informed decision on the bid. Before the offer document is made public, the offerer shall communicate it to the supervisory authority. On being made public the board of the offeree company shall communicate the offer document to the representatives of its employees or, where there are no representatives, to the employees themselves.

(Amendment 16)

Article 6(3), eighth indent

>Original text>

- the offerer's intentions with regard to the future business and undertakings of the offeree company, its employees and its management,

>Text following EP vote>

- the offerer's intentions with regard to the future business and undertakings of the offeree company, its employees and its management including any changes to the terms and conditions of employment and any envisaged dismissals,

(Amendment 17)

Article 6(3), ninth indent

>Original text>

- the period for acceptance of the bid, which may not be less than four weeks or more than ten weeks from the date on which the document is made public,

>Text following EP vote>

- the period for acceptance of the bid, which may not be less than two weeks or more than ten weeks from the date on which the document is made public,

(Amendment 18)

Article 6(4)

>Original text>

4. Member States shall ensure that rules are in force requiring that the parties to a bid provide the supervisory authority at any time on request with all information in their possession concerning the bid which the supervisory authority considers necessary for the discharge of its functions.

>Text following EP vote>

4. Member States shall ensure that rules are in force requiring the parties to a bid to provide the supervisory authority at any time on request with all information in their possession concerning the bid which might be necessary for the discharge of its functions.

(Amendment 19)

Article 7(2)

>Original text>

2. Member States shall ensure that rules are in force which provide for the disclosure of all information or documents required in such a manner as to ensure that they are both readily and promptly available to the addressees of the bid.

>Text following EP vote>

2. Member States shall ensure that rules are in force which provide for the disclosure of all information or documents required in such a manner as to ensure that they are both readily and promptly available to the addressees of the bid and representatives of the employees of the offeree company or, where there are no representatives, the employees themselves.

(Amendment 20)

Article 8(a)

>Original text>

(a) after receiving the information concerning the bid and until the result of the bid is made public, the board of the offeree company should abstain from any action which may result in the frustration of the offer and notably from the issuing of shares which may result in a lasting impediment to the offerer to obtain control over the offeree company, unless it has the prior authorization of the general meeting of the shareholders given for this purpose;

>Text following EP vote>

(a) after receiving the information concerning the bid and until the result of the bid is made public, the board of the offeree company should abstain from any action which may result in the frustration of the offer and notably from the issuing of shares which may result in a lasting impediment to the offerer to obtain control over the offeree company, unless it has the prior authorization of the general meeting of the shareholders given for this purpose during the period for acceptance of the bid;

(Amendment 21)

Article 8(b)

>Original text>

(b) the board of the offeree company shall draw up and make public a document setting out its opinion on the bid together with the reasons on which it is based.

>Text following EP vote>

(b) the board of the offeree company shall draw up and make public a document setting out its opinion on the bid together with the reasons on which it is based. Before finalizing this document the board shall consult with representatives of the employees or, where there are no representatives, the employees themselves.

(Amendment 22)

Article 10(1)

>Original text>

1. Where a Member State provides for a mandatory bid as a means to protect the minority shareholders, this bid shall be launched to all shareholders for all or for a substantial part of their holdings at a price which meets the objective of protecting their interests.

>Text following EP vote>

1. Where a Member State provides for a mandatory bid as a means to protect the minority shareholders, this bid shall be launched to all shareholders for all or for a substantial part of their holdings at a price which meets the objective of protecting their interests. The concept of 'substantial part' should not be interpreted as being less than 70% of the securities. Where applicable, the provisions of Article 4(4) shall apply.

Legislative resolution embodying Parliament's opinion on the proposal for a 13th European Parliament and Council Directive on company law concerning takeover bids (COM(95)0655 - C4-0107/96 - 95/0341(COD))

(Codecision procedure: first reading)

The European Parliament,

- having regard to the Commission proposal to Parliament and the Council, COM(95)0655 - 95/0341(COD) ((OJ C 162, 6.6.1996, p. 5. )),

- having regard to Articles 189b(2) and 54 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C4-0107/96),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on Legal Affairs and Citizens' Rights and the opinion of the Committee on Employment and Social Affairs (A4- 0204/97),

1. Approves the Commission proposal, subject to Parliament's amendments;

2. Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC Treaty;

3. Calls on the Council to incorporate Parliament's amendments in the common position that it adopts in accordance with Article 189b(2) of the EC Treaty;

4. Calls for the conciliation procedure to be opened should the Council intend to depart from the text approved by Parliament;

5. Points out that the Commission is required to submit to Parliament any modification it may intend to make to its proposal as amended by Parliament;

6. Instructs its President to forward this opinion to the Council and Commission.