European Parliament legislative resolution on the Council common position for adopting a directive of the European Parliament and of the Council on company law concerning takeover bids (8129/1/2000 – C5-0327/2000 — 1995/0341(COD))
Date: 2000-12-13
Institutions: European Parliament
Subjects: EU Member State, application of EU law, company law, protection of shareholders, share, takeover bid

C 232/168

Official Journal of the European Communities

EN

17.8.2001

Wednesday 13 December 2000

9. Takeover bids ***II

A5-0368/2000

European Parliament legislative resolution on the Council common position for adopting a direc-
tive of the European Parliament and of the Council on company law concerning takeover bids
(8129/1/2000 * C5-0327/2000 * 1995/0341(COD))

(Codecision procedure: second reading)

The European Parliament,

(cid:17) having regard to the Council common position (8129/1/2000 (cid:17) C5-0327/2000),

(cid:17) having regard to its position at first reading (1) on the Commission proposal to Parliament and the

Council (COM(1995) 655) (2),

(cid:17) having regard to the Commission’s amended proposal (COM(1997) 565) (3),

(cid:17) having regard to Article 251(2) of the EC Treaty,

(cid:17) having regard to Rule 80 of its Rules of Procedure,

(cid:17) having regard to the recommendation for second reading of the Committee on Legal Affairs and the

Internal Market (A5-0368/2000),

1.

Amends the common position as follows;

2.

Instructs its President to forward its position to the Council and Commission.

COUNCIL
COMMON POSITION

AMENDMENTS
BY PARLIAMENT

(Amendment 1)
Recital 5

(5) Member States should take the necessary steps in order to
protect holders of securities having holdings after the acquisi-
tion of control of their company. Such protection should be
ensured by obliging the person who acquired control of a com-
pany to make a bid to all holders of securities for all of their
holdings.

(5) Member States should take the necessary steps in order to
protect holders of securities having minority holdings after the
acquisition of control of
their company. Such protection
should be ensured by obliging the person who acquired control
of a company to make a bid to all holders of securities for all
of their holdings. It should be allowed, during a transitional period,
to ensure this protection through other appropriate and at-least-
equivalent means on condition that these means are specific to the
transfer of control and include specific financial compensation for the
minority shareholders. Member States may, in addition to the protec-
tion provided for by a mandatory bid or other equivalent means, pro-
vide for further instruments aimed at the protection of the interests of
holders of securities.

(1) OJ C 222, 21.7.1997, p. 20.
(2) OJ C 162, 6.6.1995, p. 5.
(3) OJ C 378, 13.12.1997, p. 10.

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COUNCIL
COMMON POSITION

Wednesday 13 December 2000

AMENDMENTS
BY PARLIAMENT

(Amendment 2)
Article 2(a)

(a)

‘takeover bid’ and ‘bid’ mean a public offer (other than by
the offeree company itself) made to the holders of the
securities of a company to acquire all or part of such secu-
rities. A bid may be either mandatory or voluntary, and must
follow or have as its objective the acquisition of control;

(a)

‘takeover bid’ and ‘bid’ mean an offer (other than by the
offeree company itself) made to the holders of the securi-
ties of a company to acquire all or part of such securities.
A bid must have as its objective the acquisition of control;

(Amendment 3)
Article 2(e)

(e)

‘securities’ means transferable securities carrying voting
rights in a company;

(e)

‘securities’ means transferable securities carrying voting
rights in a company or which may carry such rights as
a consequence of their being exercised or converted;

(Amendment 4)
Article 3(1)(b)

(b) holders of securities of an offeree company are to have
sufficient time and information to enable them to reach a
properly informed decision on the bid;

(b) holders of securities of an offeree company and its
employees or their representatives are to have sufficient
time and information to enable them to reach a properly
informed decision on the bid;

(Amendment 5)
Article 3(1)(c)

(c)

the board of an offeree company is to 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;

(c)

the board of an offeree company is to act in the interests
of the company as a whole, in particular in the interests
of corporate policy and its continuation, shareholders
and staff, and with a view to safeguarding jobs, and
must not deny the holders of securities the opportunity
to decide on the merits of the bid;

(Amendment 7)
Article 4(5), second subparagraph

Provided that the general principles referred to in Article 3(1)
are respected, Member States may provide in their rules made
or introduced pursuant to this Directive that their supervisory
authorities may in particular types of cases and, on the basis of
a reasoned decision, in specific appropriate cases grant derogation
from these rules.

Provided that the general principles referred to in Article 3(1)
are respected, Member States may provide in their rules made
or introduced pursuant to this Directive that their supervisory
authorities may in particular types of cases grant derogation
from these rules and that in such cases they do so on the
basis of a reasoned decision.

(Amendment 8)
Article 5(1)

1. Where a natural person or legal entity who, as a result of
his own acquisition or the acquisition by persons acting in
concert with him, holds securities of a company referred to in

1. Where a natural person or legal entity who, as a result of
his own acquisition or the acquisition by persons acting in
concert with him, holds securities of a company referred to in

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COUNCIL
COMMON POSITION

Article 1(1) which, added to any existing holdings and the
holdings of persons acting in concert with him, directly or
indirectly give him a specified percentage of voting rights in
that company, conferring on him the control of that company,
Member States shall ensure that rules are in force which oblige
this person to make a bid as a means to protect the minority
shareholders of that company. This bid shall be addressed to all
holders of securities for all their holdings at an equitable price.
When the consideration offered by the offeror does not consist
of liquid securities admitted to trading on a regulated market,
such consideration has to include a cash consideration at least
as an alternative.

AMENDMENTS
BY PARLIAMENT

Article 1(1) which, added to any existing holdings and the
holdings of persons acting in concert with him, directly or
indirectly give him a specified percentage of voting rights in
that company, conferring on him the control of that company,
Member States shall ensure that rules are in force which oblige
this person to make a bid as a means to protect the minority
shareholders of that company. This bid shall be addressed to all
holders of securities for all their holdings at an equitable price.
An equitable price is at least the highest price paid by the
offeror on a regulated market within the meaning of
Directive 88/627/EEC in the twelve months preceding dis-
closure of the bid. The competent supervisory authority
within the meaning of Article 4 may authorise a lower
bid price in justified and justifiable exceptional cases.
When the consideration offered by the offeror does not consist
of liquid securities admitted to trading on a regulated market,
such consideration has to include a cash consideration at least
as an alternative.

The equitable price must be paid in cash if the offeror,
alone or in conjunction with a person acting in concert
with him, has,
in the six months before the bid was
made, acquired more than 5 % of the shares or voting
rights in the offeree company or does so after publication
of the bid and before expiry of the period for acceptance.

(Amendment 12)

Article 5a (new)

Article 5a

Consolidating the position of the offeror

If, as a result of a takeover bid, the offeror receives pos-
session of more than 95 % of the securities with voting
rights, he is entitled, no later than six months after conclu-
sion of the bid, to take over in cash the remaining securi-
ties with voting rights at the fixed price in the takeover
bid.

However, he must at least pay the maximum price paid
for securities of the company in question in the three
months prior to notification of the offer.

(Amendment 13)

Article 6(3) (h)

(h)

the offeror’s intentions with regard to the future business
of the offeree company, its employees and its management,
including any material change in the conditions of
employment;

(h)

the offeror’s intentions with regard to the future business
of both the offeror and the offeree company, and the
future of the employees and management, as well as
the supervisory authority, including any material change
in the conditions of employment. This relates in particu-
lar to the offeror’s strategic planning for the offeree
company, the effect of such plans on jobs and loca-
tions, their impact on labour law standards, social

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COUNCIL
COMMON POSITION

Wednesday 13 December 2000

AMENDMENTS
BY PARLIAMENT

standards and collective undertakings and the conse-
quences for bodies representing the interests of the
workers;

(Amendment 14)
Article 6(3)(la) (new)

(la) the law which governs the contracts between the
offeror and the holders of securities of an offeree
company which arise as a result of the bid.

(Amendment 15)
Article 6(4)

4. Member States shall ensure that rules are in force requir-
ing the parties to a bid to provide the supervisory authorities
of their Member State at any time on request with all informa-
tion in their possession concerning the bid which is necessary
for the supervisory authority to discharge its functions.

4. Member States shall ensure that rules are in force requir-
ing the parties to a bid to provide the supervisory authorities
of their Member State, the board of the offeree company
and the workers’ representatives at any time on request
with all
information in their possession concerning the bid
which is necessary for them to discharge their functions.

(Amendment 16)
Article 7

1. Member States shall provide that the period for accep-
tance of the bid to be specified by the offeror in the offer docu-
ment in accordance with Article 6(3)(i) may not be less than
two weeks or more than ten weeks from the date of publication
of the offer document. Member States may provide that the period
of ten weeks may be prolonged on the condition that the offeror gives
at least two weeks prior notice of its intention to close the bid.

1. Member States shall provide that the period for accep-
tance of the bid to be specified by the offeror in the offer docu-
ment in accordance with Article 6(3)(i) may not be less than
two weeks or more than three months from the date of pub-
lication of the offer document.

2.
Member States may provide for rules modifying the period
mentioned in paragraph 1 in specific appropriate cases. Member
States may authorise the supervisory authority to grant a derogation
from the period mentioned in paragraph 1 in order to allow the
offeree company to organise a general meeting to consider the bid.

The period laid down in paragraph 1 may be
2.
extended by the competent supervisory body only in the
event of alternative take-over bids by up to a maximum of
three months, starting when the documentation concern-
ing the most recent alternative bid is made public.

(Amendment 20)
Article 9(1)(a) and (b)

(a) at the latest after receiving the information referred to in
Article 6(1), first sentence, concerning the bid and until
the result of the bid is made public or the bid lapses, the
board of the offeree company shall abstain from complet-
ing any action other than seeking alternative bids which
may result in the frustration of the bid, and notably from
the issuing of shares which may result in a lasting impedi-
ment to the offeror obtaining control over the offeree
company, unless it has the prior authorisation of the gen-
eral meeting of the shareholders given for this purpose,
during the period of acceptance of the bid;

(a) at the latest from the time when, by whatever means,
the existence of a bid becomes known and at all
events after receiving the information referred to in Arti-
cle 6(1), first sentence, concerning the bid and until the
result of the bid is made public or the bid lapses, the
board of the offeree company shall abstain from complet-
ing any action other than seeking alternative bids 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 offeror to obtain control over the
offeree company, unless it has the prior authorisation of
the general meeting of the shareholders and the supervi-
sory board (if any) given for this purpose, during the
period of acceptance of the bid;

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Wednesday 13 December 2000

COUNCIL
COMMON POSITION

AMENDMENTS
BY PARLIAMENT

(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, including
its views on the effects of implementation on all the inter-
ests of the company, including employment.

(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, including
its views on the effects of implementation on all the inter-
including employment. Where a
ests of the company,
the employees’ representative
separate opinion of
body is available it shall be enclosed.

(Amendment 17)
Article 9(2a) (new)

2a.
If the board proposes any action other than that
provided for in the foregoing articles it must act according
to one of the following alternatives.

(a) Supervisory authorities may,

in conformity with
national law, adopt guidelines as to the permissibility
of any other defensive measures.

(b) In addition, Member States may opt for one of the

following models:

(i)

the board must obtain prior authorisation by the
competent
supervisory authority of defensive
measures other than those provided for in this
article or under the guidelines established accord-
ing to subparagraph (a);

(ii) the competent supervisory authority may, upon
request from holders of securities representing at
least 1 % of the voting rights, forbid defensive
measures if they are covered neither by this arti-
cle nor by guidelines drawn up according to sub-
paragraph (a).

(c)

In any event, holders of securities may also arrange
for the courts to determine whether the limits of the
room for manoeuvre have been wilfully exceeded and
whether the company is entitled to claim compensa-
tion from the members of the board.

(d) In any event, all defensive measures which have the
prior authorisation of the general meeting of the
shareholders given for this purpose, during the period
of acceptance of the bid, are permissible and can in
particular not be forbidden by the competent supervi-
sory authority.

(Amendment 18)
Article 15(1), first subparagraph

1. Member States shall ensure that the laws, regulations,
administrative provisions or other arrangements necessary for
them to comply with this Directive are in force before … (*).
They shall forthwith inform the Commission thereof.

1. Member States shall ensure that the laws, regulations,
administrative provisions or other arrangements necessary for
them to comply with this Directive are in force before … (*).
They shall forthwith inform the Commission thereof.

(*)

Four years after the entry into force of this Directive.

(*) Two years after the entry into force of this Directive.