Directive 2004/25/EC of the European Parliament and of the Council of 21 april 2004 on takeover bids (Text with EEA relevance)
Date: 2004-04-21
Institutions: Council of the European Union, European Parliament
Subjects: disclosure of information, issue of securities, official market, organisation, securities, takeover bid

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DIRECTIVE 2004/25/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 21 April 2004
on takeover bids

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 44(1) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

Acting in accordance with the procedure laid down in Article 251
of the Treaty (3),

Whereas:

(1)

(2)

(3)

(4)

In accordance with Article 44(2)(g) of the Treaty, it is nec-
essary to coordinate certain safeguards which, for the pro-
tection of the interests of members and others, Member
States require of companies governed by the law of a Mem-
ber State the securities of which are admitted to trading on
a regulated market in a Member State, with a view to mak-
the
ing
Community.

throughout

safeguards

equivalent

such

It is necessary to protect the interests of holders of the
securities of companies governed by the law of a Member
State when those companies are the subject of takeover
bids or of changes of control and at least some of their
securities are admitted to trading on a regulated market in
a Member State.

It is necessary to create Community-wide clarity and trans-
parency in respect of legal issues to be settled in the event
of takeover bids and to prevent patterns of corporate
restructuring within the Community from being distorted
by arbitrary differences in governance and management
cultures.

In view of the public-interest purposes served by the cen-
tral banks of the Member States, it seems inconceivable
that they should be the targets of takeover bids. Since, for
historical reasons, the securities of some of those central
banks are listed on regulated markets in Member States, it
is necessary to exclude them explicitly from the scope of
this Directive.

(5)

Each Member State should designate an authority or
authorities to supervise those aspects of bids that are

(6)

(7)

(8)

(9)

governed by this Directive and to ensure that parties to
takeover bids comply with the rules made pursuant to this
Directive. All those authorities should cooperate with one
another.

In order to be effective, takeover regulation should be flex-
ible and capable of dealing with new circumstances as they
arise and should accordingly provide for the possibility of
exceptions and derogations. However,
in applying any
rules or exceptions laid down or in granting any deroga-
tions, supervisory authorities should respect certain gen-
eral principles.

Self-regulatory bodies
supervision.

should be

able

to exercise

In accordance with general principles of Community law,
and in particular the right to a fair hearing, decisions of a
supervisory authority should in appropriate circumstances
be susceptible to review by an independent court or tribu-
nal. However, Member States should be left to determine
whether rights are to be made available which may be
asserted in administrative or judicial proceedings, either in
proceedings against a supervisory authority or in proceed-
ings between parties to a bid.

Member States should take the necessary steps to protect
the holders of securities, in particular those with minority
holdings, when control of their companies has been
acquired. The Member States should ensure such protec-
tion by obliging the person who has acquired control of a
company to make an offer to all the holders of that com-
pany’s securities for all of their holdings at an equitable
price in accordance with a common definition. Member
States should be free to establish further instruments for
the protection of the interests of the holders of securities,
such as the obligation to make a partial bid where the off-
eror does not acquire control of the company or the obli-
gation to announce a bid at the same time as control of the
company is acquired.

(10) The obligation to make a bid to all the holders of securities
should not apply to those controlling holdings already in
existence on the date on which the national legislation
transposing this Directive enters into force.

(1) OJ C 45 E, 25.2.2003, p. 1.
(2) OJ C 208, 3.9.2003, p. 55.
(3) Opinion of the European Parliament of 16 December 2003 (not yet
published in the Official Journal) and Council decision of 30 March
2004.

(11) The obligation to launch a bid should not apply in the case
of the acquisition of securities which do not carry the right
to vote at ordinary general meetings of shareholders. Mem-
ber States should, however, be able to provide that the
obligation to make a bid to all the holders of securities

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relates not only to securities carrying voting rights but also
to securities which carry voting rights only in specific cir-
cumstances or which do not carry voting rights.

removal of rights, equitable compensation should be pro-
vided for in accordance with the technical arrangements
laid down by Member States.

(12) To reduce the scope for insider dealing, an offeror should
be required to announce his/her decision to launch a bid as
soon as possible and to inform the supervisory authority
of the bid.

(13)

The holders of securities should be properly informed of
the terms of a bid by means of an offer document. Appro-
priate information should also be given to the representa-
tives of the company’s employees or, failing that, to the
employees directly.

(14)

The time allowed for the acceptance of a bid should be
regulated.

(15) To be able to perform their functions satisfactorily, super-
visory authorities should at all times be able to require the
parties to a bid to provide information concerning them-
selves and should cooperate and supply information in an
efficient and effective manner, without delay, to other
authorities supervising capital markets.

(16)

In order to prevent operations which could frustrate a bid,
the powers of the board of an offeree company to engage
in operations of an exceptional nature should be limited,
without unduly hindering the offeree company in carrying
on its normal business activities.

(20) All special rights held by Member States in companies
should be viewed in the framework of the free movement
of capital and the relevant provisions of the Treaty. Special
rights held by Member States in companies which are pro-
vided for in private or public national
law should be
exempted from the ‘breakthrough’ rule if they are compat-
ible with the Treaty.

(21) Taking into account existing differences in Member States’
company law mechanisms and structures, Member States
should be allowed not to require companies established
within their territories to apply the provisions of this Direc-
tive limiting the powers of the board of an offeree com-
pany during the time allowed for the acceptance of a bid
and those rendering ineffective barriers, provided for in the
articles of association or in specific agreements. In that
event Member States should at least allow companies
established within their territories to make the choice,
which must be reversible, to apply those provisions. With-
out prejudice to international agreements to which the
European Community is a party, Member States should be
allowed not to require companies which apply those pro-
visions in accordance with the optional arrangements to
apply them when they become the subject of offers
launched by companies which do not apply the same pro-
visions, as a consequence of the use of those optional
arrangements.

(17) The board of an offeree company should be required to
make public a document setting out its opinion of the bid
and the reasons on which that opinion is based, including
its views on the effects of implementation on all the com-
pany’s interests, and specifically on employment.

(22) Member States should lay down rules to cover the possi-
bility of a bid’s lapsing, the offeror’s right to revise his/her
bid, the possibility of competing bids for a company’s
securities, the disclosure of the result of a bid, the irrevo-
cability of a bid and the conditions permitted.

(18)

In order to reinforce the effectiveness of existing provisions
concerning the freedom to deal in the securities of compa-
nies covered by this Directive and the freedom to exercise
voting rights, it is essential that the defensive structures and
mechanisms envisaged by such companies be transparent
and that they be regularly presented in reports to general
meetings of shareholders.

(23)

(19) Member States should take the necessary measures to
afford any offeror the possibility of acquiring majority
interests in other companies and of fully exercising con-
trol of them. To that end, restrictions on the transfer of
securities, restrictions on voting rights, extraordinary
appointment rights and multiple voting rights should be
removed or suspended during the time allowed for the
acceptance of a bid and when the general meeting of share-
holders decides on defensive measures, on amendments to
the articles of association or on the removal or appoint-
ment of board members at the first general meeting of
shareholders following closure of the bid. Where the hold-
ers of securities have suffered losses as a result of the

The disclosure of information to and the consultation of
representatives of the employees of the offeror and the
offeree company should be governed by the relevant
national provisions, in particular those adopted pursuant
to Council Directive 94/45/EC of 22 September 1994 on
the establishment of a European Works Council or a pro-
cedure in Community-scale undertakings and Community-
scale groups of undertakings for the purposes of inform-
ing
Council
Directive 98/59/EC of 20 July 1998 on the approximation
of the laws of the Member States relating to collective
redundancies (2), Council Directive 2001/86/EC of 8 Octo-
ber 2001 supplementing the statute for a European Com-
pany with regard to the involvement of employees (3) and
Directive 2002/14/EC of the European Parliament and of
the Council of 11 March 2002 establishing a general

employees (1),

consulting

and

(1) OJ L 254, 30.9.1994, p. 64. Directive
Directive 97/74/EC (OJ L 10, 16.1.1998, p. 22).

as

amended by

(2) OJ L 225, 12.8.1998, p. 16.
(3) OJ L 294, 10.11.2001, p. 22.

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framework for informing and consulting employees in the
European Community — Joint declaration of the European
Parliament, the Council and the Commission on employee
representation (1). The employees of the companies con-
cerned, or their representatives, should nevertheless be
given an opportunity to state their views on the foresee-
able effects of the bid on employment. Without prejudice
to the rules of Directive 2003/6/EC of the European Par-
liament and of the Council of 28 January 2003 on insider
dealing and market manipulation (market abuse) (2), Mem-
ber States may always apply or introduce national provi-
sions concerning the disclosure of information to and the
consultation of representatives of the employees of the off-
eror before an offer is launched.

(24) Member States should take the necessary measures to
enable an offeror who, following a takeover bid, has
acquired a certain percentage of a company’s capital car-
rying voting rights to require the holders of the remaining
securities to sell him/her their securities. Likewise, where,
following a takeover bid, an offeror has acquired a certain
percentage of a company’s capital carrying voting rights,
the holders of the remaining securities should be able to
require him/her to buy their securities. These squeeze-out
and sell-out procedures should apply only under specific
conditions linked to takeover bids. Member States may
continue to apply national rules to squeeze-out and sell-
out procedures in other circumstances.

(25)

Since the objectives of the action envisaged, namely to
establish minimum guidelines for the conduct of takeover
bids and ensure an adequate level of protection for holders
of securities throughout the Community, cannot be suffi-
ciently achieved by the Member States because of the need
for transparency and legal certainty in the case of cross-
border takeovers and acquisitions of control, and can
therefore, by reason of the scale and effects of the action,
be better achieved at Community level, the Community
may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty. In accor-
dance with the principle of proportionality as set out in
that Article, this Directive does not go beyond what is nec-
essary to achieve those objectives.

(27) Member States should, however, provide for sanctions for
any infringement of the national measures transposing this
Directive.

(28)

Technical guidance and implementing measures for the
rules laid down in this Directive may from time to time be
necessary, to take account of new developments on finan-
cial markets. For certain provisions, the Commission
should accordingly be empowered to adopt implementing
measures, provided that these do not modify the essential
elements of this Directive and the Commission acts in
accordance with the principles set out in this Directive,
after consulting the European Securities Committee estab-
lished by Commission Decision 2001/528/EC (3). The
measures necessary for the implementation of this Direc-
tive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing powers con-
ferred on the Commission (4) and with due regard to the
declaration made by the Commission in the European Par-
liament on 5 February 2002 concerning the implementa-
tion of financial services legislation. For the other provi-
sions, it is important to entrust a contact committee with
the task of assisting Member States and the supervisory
authorities in the implementation of this Directive and of
advising the Commission, if necessary, on additions or
amendments to this Directive. In so doing, the contact
committee may make use of the information which Mem-
ber States are to provide on the basis of this Directive con-
cerning takeover bids that have taken place on their regu-
lated markets.

(29) The Commission should facilitate movement towards the
fair and balanced harmonisation of rules on takeovers in
the European Union. To that end, the Commission should
be able to submit proposals for the timely revision of this
Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

(26)

The adoption of a Directive is the appropriate procedure
for the establishment of a framework consisting of certain
common principles and a limited number of general
requirements which Member States are to implement
through more detailed rules in accordance with their
national systems and their cultural contexts.

1.
This Directive lays down measures coordinating the laws,
regulations, administrative provisions, codes of practice and other
arrangements of the Member States,
including arrangements
established by organisations officially authorised to regulate the
markets (hereinafter referred to as ‘rules’), relating to takeover bids
for the securities of companies governed by the laws of Member

(1) OJ L 80, 23.3.2002, p. 29.
(2) OJ L 96, 12.4.2003, p. 16.

(3) OJ L 191, 13.7.2001, p. 45. Decision as
Decision 2004/8/EC (OJ L 3, 7.1.2004, p. 33).

amended by

(4) OJ L 184, 17.7.1999, p. 23.

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States, where all or some of those securities are admitted to trad-
ing on a
regulated market within the meaning of
Directive 93/22/EEC (1) in one or more Member States (hereinaf-
ter referred to as a ‘regulated market’).

2.
This Directive shall not apply to takeover bids for securities
issued by companies, the object of which is the collective invest-
ment of capital provided by the public, which operate on the prin-
ciple of risk-spreading and the units of which are, at the holders’
request, repurchased or redeemed, directly or indirectly, out of the
assets of those companies. 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 equiva-
lent to such repurchase or redemption.

This Directive shall not apply to takeover bids for securities

3.
issued by the Member States’ central banks.

Article 2

Definitions

1.

For the purposes of this Directive:

members of the board of the offeree company, and persons
acting in concert with such parties;

(g)

‘multiple-vote securities’ shall mean securities included in a
distinct and separate class and carrying more than one vote
each.

For the purposes of paragraph 1(d), persons controlled by
2.
another person within the meaning of Article 87 of
Directive 2001/34/EC (2) shall be deemed to be persons acting in
concert with that other person and with each other.

Article 3

General principles

1.
For the purpose of implementing this Directive, Member
States shall ensure that the following principles are complied with:

(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;

(a)

‘takeover bid’ or ‘bid’ shall mean a public offer (other than by
the offeree company itself) made to the holders of the secu-
rities of a company 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 national law;

(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;

(b)

‘offeree company’ shall mean a company, the securities of
which are the subject of a bid;

(c)

‘offeror’ shall mean any natural or legal person governed by
public or private law making a bid;

(d)

‘persons acting in concert’ shall mean 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;

(e)

‘securities’ shall mean transferable securities carrying voting
rights in a company;

(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/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)

‘parties to the bid’ shall mean the offeror, the members of the
offeror’s board if the offeror is a company, the offeree com-
pany, holders of securities of the offeree company and the

(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.

(1) Council Directive 93/22/EEC of 10 May 1993 on investment services
in the securities field (OJ L 141, 11.6.1993, p. 27). Directive as last
amended by Directive 2002/87/EC of the European Parliament and
of the Council (OJ L 35, 11.2.2003, p. 1).

(2) Directive 2001/34/EC of the European Parliament and of the Coun-
cil of 28 May 2001 on the admission of securities to official stock
exchange listing and on information to be published on those secu-
rities (OJ L 184, 6.7.2001, p. 1). Directive as last amended by
Directive 2003/71/EC (OJ L 345, 31.12.2003, p. 64).

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2. With a view to ensuring compliance with the principles laid
down in paragraph 1, Member States:

(a)

shall ensure that the minimum requirements set out in this
Directive are observed;

(b) may lay down additional conditions and provisions more
stringent than those of this Directive for the regulation of
bids.

Article 4

Supervisory authority and applicable law

1. Member States shall designate the authority or authorities
competent to supervise bids for the purposes of the rules which
they make or introduce pursuant to this Directive. The authori-
ties thus designated shall be either public authorities, associations
or private bodies recognised by national law or by public authori-
ties expressly empowered for that purpose by national law. Mem-
ber States shall inform the Commission of those designations,
specifying any divisions of functions that may be made. They shall
ensure that those authorities exercise their functions impartially
and independently of all parties to a bid.

2.

(a) The authority competent to supervise a bid shall be that
of the Member State in which the offeree company has
its registered office if that company’s securities are
admitted to trading on a regulated market in that Mem-
ber State.

authorities of those Member States shall agree which
one of them shall be the authority competent to super-
vise the bid within four weeks of the date laid down in
Article 21(1). Otherwise, the offeree company shall
determine which of those authorities shall be the com-
petent authority on the first day of trading following
that four-week period.

(d) Member States shall ensure that the decisions referred

to in (c) are made public.

(e)

In the cases referred to in (b) and (c), matters relating to
the consideration offered in the case of a bid, in par-
ticular the price, and matters relating to the bid proce-
dure, in particular the information on the offeror’s deci-
sion to make a bid, the contents of the offer document
and the disclosure of the bid, shall be dealt with in
accordance with the rules of the Member State of the
competent authority. In matters relating to the infor-
mation to be provided to the employees of the offeree
company and in matters relating to company law, in
particular the percentage of voting rights which con-
fers 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 the frustration of the bid,
the applicable rules and the competent authority shall
be those of the Member State in which the offeree com-
pany has its registered office.

(b)

If the offeree company’s securities are not admitted to
trading on a regulated market in the Member State in
which the company has its registered office, the author-
ity competent to supervise the bid shall be that of the
Member State on the regulated market of which the
company’s securities are admitted to trading.

3. Member States shall ensure that all persons employed or
formerly employed by their supervisory authorities are bound by
professional secrecy. No information covered by professional
secrecy may be divulged to any person or authority except under
provisions laid down by law.

If the offeree company’s securities are admitted to trad-
ing on regulated markets in more than one Member
State, the authority competent to supervise the bid shall
be that of the Member State on the regulated market of
which the securities were first admitted to trading.

(c)

If the offeree company’s securities were first admitted
to trading on regulated markets in more than one
Member State simultaneously, the offeree company
shall determine which of the supervisory authorities of
those Member States shall be the authority competent
to supervise the bid by notifying those regulated mar-
kets and their supervisory authorities on the first day of
trading.

If the offeree company’s securities have already been
admitted to trading on regulated markets in more than
one Member State on the date laid down in Article 21(1)
and were admitted simultaneously, the supervisory

Directive

2003/6/EC

2001/34/EC,

The supervisory authorities of the Member States for the
4.
purposes of this Directive and other authorities supervising capi-
tal markets, in particular in accordance with Directive 93/22/EEC,
Directive
and
Directive 2003/71/EC of the European Parliament and of the
Council of 4 November 2003 on the prospectus to be published
when securities are offered to the public or admitted to trading
shall cooperate and supply each other with information wherever
necessary for the application of the rules drawn up in accordance
with this Directive and in particular in cases covered by para-
graph 2(b), (c) and (e). Information thus exchanged shall be cov-
ered by the obligation of professional secrecy to which persons
employed or formerly employed by the supervisory authorities
receiving the information are subject. Cooperation shall include
the ability to serve the legal documents necessary to enforce mea-
sures taken by the competent authorities in connection with bids,
as well as such other assistance as may reasonably be requested
by the supervisory authorities concerned for the purpose of inves-
tigating any actual or alleged breaches of the rules made or intro-
duced pursuant to this Directive.

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The supervisory authorities shall be vested with all the pow-
5.
ers necessary for the purpose of carrying out their duties, includ-
ing that of ensuring that the parties to a bid comply with the rules
made or introduced pursuant to this Directive.

The percentage of voting rights which confers control for
3.
the purposes of paragraph 1 and the method of its calculation
shall be determined by the rules of the Member State in which the
company has its registered office.

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 spe-
cific circumstances, in which case a reasoned decision must
be required.

6.
This Directive shall not affect the power of the Member
States to designate judicial or other authorities responsible for
dealing with disputes and for deciding on irregularities commit-
ted in the course of bids or the power of Member States to regu-
late whether and under which circumstances parties to a bid are
entitled to bring administrative or judicial proceedings. In particu-
lar, this Directive shall 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
a bid. This Directive shall not affect the power of the Member
States to determine the legal position concerning the liability of
supervisory authorities or concerning litigation between the par-
ties to a bid.

Article 5

Protection of minority shareholders, the mandatory bid
and the equitable price

1. 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 as referred to in
Article 1(1) which, added to any existing holdings of those secu-
rities 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 shall ensure that
such a person is required to make a bid as a means of protecting
the minority shareholders of that company. Such a bid shall be
addressed at the earliest opportunity to all the holders of those
securities for all their holdings at the equitable price as defined in
paragraph 4.

4.
The highest price paid for the same securities by the offeror,
or by persons acting in concert with him/her, over a period, to be
determined by Member States, of not less than six months and not
more than 12 before the bid referred to in paragraph 1 shall be
regarded as the equitable price. If, after the bid has been made
public and before the offer closes for acceptance, the offeror or
any person acting in concert with him/her purchases securities at
a price higher than the offer price, the offeror shall increase his/her
offer so that it is not less than the highest price paid for the secu-
rities so acquired.

Provided that the general principles laid down in Article 3(1) are
respected, Member States may authorise their supervisory authori-
ties to adjust the price referred to in the first subparagraph in cir-
cumstances and in accordance with criteria that are clearly deter-
mined. To that end, they may draw up a list of circumstances in
which the highest price may be adjusted either upwards or down-
wards, for example where the highest price was set by agreement
between the purchaser and a seller, where the market prices of the
securities in question have been manipulated, where market prices
in general or certain market prices in particular have been affected
by exceptional occurrences, or in order to enable a firm in diffi-
culty to be rescued. They may also determine the criteria to be
applied in such cases, for example the average market value over
a particular period, the break-up value of the company or other
objective valuation criteria generally used in financial analysis.

Any decision by a supervisory authority to adjust the equitable
price shall be substantiated and made public.

By way of consideration the offeror may offer securities,

5.
cash or a combination of both.

However, where the consideration offered by the offeror does not
consist of liquid securities admitted to trading on a regulated mar-
ket, it shall include a cash alternative.

In any event, the offeror shall offer a cash consideration at least
as an alternative where he/she or persons acting in concert with
him/her, over a period beginning at the same time as the period
determined by the Member State in accordance with paragraph 4
and ending when the offer closes for acceptance, has purchased
for cash securities carrying 5 % or more of the voting rights in the
offeree company.

Member States may provide that a cash consideration must be
offered, at least as an alternative, in all cases.

2. Where control has been acquired following a voluntary bid
made in accordance with this Directive to all the holders of secu-
rities for all their holdings, the obligation laid down in para-
graph 1 to launch a bid shall no longer apply.

6.
In addition to the protection provided for in paragraph 1,
Member States may provide for further instruments intended to
protect the interests of the holders of securities in so far as those
instruments do not hinder the normal course of a bid.

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Article 6

Information concerning bids

(f)

the maximum and minimum percentages or quantities of
securities which the offeror undertakes to acquire;

1. Member States shall ensure that a decision to make a bid is
made public without delay and that the supervisory authority is
informed of the bid. They may require that the supervisory
authority must be informed before such a decision is made pub-
lic. As soon as the bid has been made public, the boards of the
offeree company and of the offeror shall inform the representa-
tives of their respective employees or, where there are no such
representatives, the employees themselves.

2. Member States shall ensure that an offeror is required to
draw up and make public in good time an offer document con-
taining the information necessary to enable the holders of the
offeree company’s securities to reach a properly informed deci-
sion on the bid. Before the offer document is made public, the off-
eror shall communicate it to the supervisory authority. When it
is made public, the boards of the offeree company and of the off-
eror shall communicate it to the representatives of their respec-
tive employees or, where there are no such representatives, to the
employees themselves.

Where the offer document referred to in the first subparagraph is
subject to the prior approval of the supervisory authority and has
been approved, it shall be recognised, subject to any translation
required, in any other Member State on the market of which the
offeree company’s securities are admitted to trading, without its
being necessary to obtain the approval of the supervisory authori-
ties of that Member State. Those authorities may require the inclu-
sion of additional information in the offer document only if such
information is specific to the market of a Member State or Mem-
ber States on which the offeree company’s securities are admitted
to trading and relates to the formalities to be complied with to
accept the bid and to receive the consideration due at the close of
the bid as well as to the tax arrangements to which the consider-
ation offered to the holders of the securities will be subject.

(g) details of any existing holdings of the offeror, and of persons
acting in concert with him/her, in the offeree company;

(h) all the conditions to which the bid is subject;

(i)

the offeror’s intentions with regard to the future business of
the offeree company and, in so far as it is affected by the bid,
the offeror company and with regard to the safeguarding of
the jobs of their employees and management, including any
material change in the conditions of employment, and in par-
ticular the offeror’s strategic plans for the two companies and
the likely repercussions on employment and the locations of
the companies’ places of business;

(j)

the time allowed for acceptance of the bid;

(k) where the consideration offered by the offeror includes secu-

rities of any kind, information concerning those securities;

(l)

information concerning the financing for the bid;

(m) the identity of persons acting in concert with the offeror or
with the offeree company and, in the case of companies, their
types, names, registered offices and relationships with the off-
eror and, where possible, with the offeree company;

(n)

law which will govern contracts concluded
the national
between the offeror and the holders of the offeree company’s
securities as a result of the bid and the competent courts.

The offer document referred to in paragraph 2 shall state at

3.
least:

The Commission shall adopt rules for the application of
4.
paragraph 3 in accordance with the procedure referred to in
Article 18(2).

(a)

the terms of the bid;

(b)

the identity of the offeror and, where the offeror is a com-
pany, the type, name and registered office of that company;

(c)

the securities or, where appropriate, the class or classes of
securities for which the bid is made;

(d)

(e)

the consideration offered for each security or class of securi-
ties and, in the case of a mandatory bid, the method employed
in determining it, with particulars of the way in which that
consideration is to be paid;

the compensation offered for the rights which might be
removed as a result of the breakthrough rule laid down in
Article 11(4), with particulars of the way in which that com-
pensation is to be paid and the method employed in deter-
mining it;

5. Member States shall ensure that the parties to a bid are
required to provide the supervisory authorities of their Member
State at any time on request with all the information in their pos-
session concerning the bid that is necessary for the supervisory
authority to discharge its functions.

Article 7

Time allowed for acceptance

1. Member States shall provide that the time allowed for the
acceptance of a bid may not be less than two weeks nor more
than 10 weeks from the date of publication of the offer docu-
ment. Provided that
the general principle laid down in
Article 3(1)(f) is respected, Member States may provide that the
period of 10 weeks may be extended on condition that the off-
eror gives at least two weeks’ notice of his/her intention of clos-
ing the bid.

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2. Member States may provide for rules changing the period
referred to in paragraph 1 in specific cases. A Member State may
authorise a supervisory authority to grant a derogation from the
period referred to in paragraph 1 in order to allow the offeree
company to call a general meeting of shareholders to consider the
bid.

For the purpose of obtaining the prior authorisation,
4.
approval or confirmation of the holders of securities referred to
in paragraphs 2 and 3, Member States may adopt rules allowing a
general meeting of shareholders to be called at short notice, pro-
vided that the meeting does not take place within two weeks of
notification’s being given.

Article 8

Disclosure

1. Member States shall ensure that a bid is made public in such
a way as to ensure market transparency and integrity for the secu-
rities of the offeree company, of the offeror or of any other com-
pany affected by the bid, in particular in order to prevent the pub-
lication or dissemination of false or misleading information.

2. Member States shall provide for the disclosure of all infor-
mation and documents required by Article 6 in such a manner as
to ensure that they are both readily and promptly available to the
holders of securities at least in those Member States on the regu-
lated markets of which the offeree company’s securities are admit-
ted to trading and to the representatives of the employees of the
offeree company and the offeror or, where there are no such rep-
resentatives, to the employees themselves.

Article 9

Obligations of the board of the offeree company

5.
The board of the offeree company shall draw up and make
public a document setting out its opinion of the bid and the rea-
sons on which it is based, including its views on the effects of
implementation of the bid on all the company’s interests and spe-
cifically employment, and on the offeror’s strategic plans for the
offeree company and their likely repercussions on employment
and the locations of the company’s places of business as set out
in the offer document in accordance with Article 6(3)(i). The
board of the offeree company shall at the same time communi-
cate that opinion to the representatives of its employees or, where
there are no such representatives, to the employees themselves.
Where the board of the offeree company receives in good time a
separate opinion from the representatives of its employees on the
effects of the bid on employment, that opinion shall be appended
to the document.

6.
For the purposes of paragraph 2, where a company has a
two-tier board structure ‘board’ shall mean both the management
board and the supervisory board.

Article 10

Information on companies as referred to in Article 1(1)

1. Member States shall ensure that companies as referred to in
Article 1(1) publish detailed information on the following:

1. Member States shall ensure that the rules laid down in para-
graphs 2 to 5 are complied with.

(a)

During the period referred to in the second subparagraph,
2.
the board of the offeree company shall obtain the prior authori-
sation of the general meeting of shareholders given for this pur-
pose before taking any action, other than seeking alternative bids,
which may result in the frustration of the bid and in particular
before issuing any shares which may result in a lasting impedi-
ment to the offeror’s acquiring control of the offeree company.

Such authorisation shall be mandatory at least from the time the
board of the offeree company receives the information referred to
in the first sentence of Article 6(1) concerning the bid and until
the result of the bid is made public or the bid lapses. Member
States may require that such authorisation be obtained at an ear-
lier stage, for example as soon as the board of the offeree com-
pany becomes aware that the bid is imminent.

As regards decisions taken before the beginning of the
3.
period referred to in the second subparagraph of paragraph 2 and
not yet partly or fully implemented, the general meeting of share-
holders shall approve or confirm any decision which does not
form part of the normal course of the company’s business and the
implementation of which may result in the frustration of the bid.

the structure of their capital, including securities which are
not admitted to trading on a regulated market in a Member
State, where appropriate with an indication of the different
classes of shares and, for each class of shares, the rights and
obligations attaching to it and the percentage of total share
capital that it represents;

(b) any restrictions on the transfer of securities, such as limita-
tions on the holding of securities or the need to obtain the
approval of the company or other holders of securities, with-
out prejudice to Article 46 of Directive 2001/34/EC;

(c)

significant direct and indirect shareholdings (including indi-
rect shareholdings through pyramid structures and cross-
shareholdings) within the meaning of Article 85 of
Directive 2001/34/EC;

(d)

the holders of any securities with special control rights and a
description of those rights;

(e)

the system of control of any employee share scheme where
the control rights are not exercised directly by the employees;

(f)

any restrictions on voting rights, such as limitations of the
voting rights of holders of a given percentage or number of

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30.4.2004

votes, deadlines for exercising voting rights, or systems
whereby, with the company’s cooperation, the financial
rights attaching to securities are separated from the holding
of securities;

Any restrictions on the transfer of securities provided for in
2.
the articles of association of the offeree company shall not apply
vis-à-vis the offeror during the time allowed for acceptance of the
bid laid down in Article 7(1).

(g) any agreements between shareholders which are known to
the company and may result in restrictions on the transfer of
securities and/or voting rights within the meaning of
Directive 2001/34/EC;

(h)

the rules governing the appointment and replacement of
board members and the amendment of the articles of
association;

(i)

(j)

the powers of board members, and in particular the power to
issue or buy back shares;

any significant agreements to which the company is a party
and which take effect, alter or terminate upon a change of
control of the company following a takeover bid, and the
effects thereof, except where their nature is such that their
disclosure would be seriously prejudicial to the company;
this exception shall not apply where the company is specifi-
cally obliged to disclose such information on the basis of
other legal requirements;

(k) any agreements between the company and its board mem-
bers or employees providing for compensation if they resign
or are made redundant without valid reason or if their
employment ceases because of a takeover bid.

2.
The information referred to in paragraph 1 shall be pub-
lished in the company’s annual report as provided for in Article 46
of
of
Directive 83/349/EEC (2).

78/660/EEC (1)

Directive

Article

and

36

3. Member States shall ensure, in the case of companies the
securities of which are admitted to trading on a regulated market
in a Member State, that the board presents an explanatory report
to the annual general meeting of shareholders on the matters
referred to in paragraph 1.

Article 11

Breakthrough

1. Without prejudice to other rights and obligations provided
for in Community law for the companies referred to in
Article 1(1), Member States shall ensure that the provisions laid
down in paragraphs 2 to 7 apply when a bid has been made
public.

(1)

Fourth Council Directive 78/660/EEC of 25 July 1978 on the annual
accounts of certain types of companies (OJ L 222, 14.8.1978, p. 11).
Directive as last amended by Directive 2003/51/EC of the European
Parliament and of the Council (OJ L 178, 17.7.2003, p. 16).

(2) Seventh Council Directive 83/349/EEC of 13 June 1983 on consoli-
dated accounts (OJ L 193, 18.7.1983, p.1). Directive as last amended
by Directive 2003/51/EC.

Any restrictions on the transfer of securities provided for in con-
tractual agreements between the offeree company and holders of
its securities, or in contractual agreements between holders of the
offeree company’s securities entered into after the adoption of this
Directive, shall not apply vis-à-vis the offeror during the time
allowed for acceptance of the bid laid down in Article 7(1).

3.
Restrictions on voting rights provided for in the articles of
association of the offeree company shall not have effect at the
general meeting of shareholders which decides on any defensive
measures in accordance with Article 9.

Restrictions on voting rights provided for in contractual agree-
ments between the offeree company and holders of its securities,
or in contractual agreements between holders of the offeree com-
pany’s securities entered into after the adoption of this Directive,
shall not have effect at the general meeting of shareholders which
decides on any defensive measures in accordance with Article 9.

Multiple-vote securities shall carry only one vote each at the gen-
eral meeting of shareholders which decides on any defensive mea-
sures in accordance with Article 9.

4. Where, following a bid, the offeror holds 75 % or more of
the capital carrying voting rights, no restrictions on the transfer
of securities or on voting rights referred to in paragraphs 2 and 3
nor any extraordinary rights of shareholders concerning the
appointment or removal of board members provided for in the
articles of association of
the offeree company shall apply;
multiple-vote securities shall carry only one vote each at the first
general meeting of shareholders following closure of the bid,
called by the offeror in order to amend the articles of association
or to remove or appoint board members.

To that end, the offeror shall have the right to convene a general
meeting of shareholders at short notice, provided that the meet-
ing does not take place within two weeks of notification.

5. Where rights are removed on the basis of paragraphs 2, 3,
or 4 and/or Article 12, equitable compensation shall be provided
for any loss suffered by the holders of those rights. The terms for
determining such compensation and the arrangements for its pay-
ment shall be set by Member States.

6.
Paragraphs 3 and 4 shall not apply to securities where the
restrictions on voting rights are compensated for by specific pecu-
niary advantages.

This Article shall not apply either where Member States
7.
hold securities in the offeree company which confer special rights

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on the Member States which are compatible with the Treaty, or
to special rights provided for in national law which are compat-
ible with the Treaty or to cooperatives.

(d)

the disclosure of the results of bids;

(e)

the irrevocability of bids and the conditions permitted.

Article 12

Optional arrangements

1. Member States may reserve the right not to require compa-
nies as referred to in Article 1(1) which have their registered
offices within their territories to apply Article 9(2) and (3) and/or
Article 11.

2. Where Member States make use of the option provided for
in paragraph 1, they shall nevertheless grant companies which
have their registered offices within their territories the option,
which shall be reversible, of applying Article 9(2) and (3) and/or
Article 11, without prejudice to Article 11(7).

The decision of the company shall be taken by the general meet-
ing of shareholders, in accordance with the law of the Member
State in which the company has its registered office in accordance
with the rules applicable to amendment of the articles of associa-
tion. The decision shall be communicated to the supervisory
authority of the Member State in which the company has its reg-
istered office and to all the supervisory authorities of Member
States in which its securities are admitted to trading on regulated
markets or where such admission has been requested.

3. Member States may, under the conditions determined by
national law, exempt companies which apply Article 9(2) and (3)
and/or Article 11 from applying Article 9(2) and (3) and/or
Article 11 if they become the subject of an offer launched by a
company which does not apply the same Articles as they do, or
by a company controlled, directly or indirectly, by the latter, pur-
suant to Article 1 of Directive 83/349/EEC.

4. Member States shall ensure that the provisions applicable to
the respective companies are disclosed without delay.

5.
Any measure applied in accordance with paragraph 3 shall
be subject to the authorisation of the general meeting of share-
holders of the offeree company, which must be granted no earlier
than 18 months before the bid was made public in accordance
with Article 6(1).

Article 13

Other rules applicable to the conduct of bids

Member States shall also lay down rules which govern the con-
duct of bids, at least as regards the following:

(a)

the lapsing of bids;

(b)

the revision of bids;

(c)

competing bids;

Article 14

Information for and consultation of employees’
representatives

This Directive shall be without prejudice to the rules relating to
information and to consultation of representatives of and,
if
Member States so provide, co-determination with the employees
of the offeror and the offeree company governed by the relevant
national provisions, and in particular those adopted pursuant to
Directives 94/45/EC, 98/59/EC, 2001/86/EC and 2002/14/EC.

Article 15

The right of squeeze-out

1. Member States shall ensure that, following a bid made to all
the holders of the offeree company’s securities for all of their secu-
rities, paragraphs 2 to 5 apply.

2. Member States shall ensure that an offeror is able to require
all the holders of the remaining securities to sell him/her those
securities at a fair price. Member States shall introduce that right
in one of the following situations:

(a) where the offeror holds securities representing not less than
90 % of the capital carrying voting rights and 90 % of the
voting rights in the offeree company,

or

(b) where, following acceptance of the bid, he/she has acquired
or has firmly contracted to acquire securities representing not
less than 90 % of the offeree company’s capital carrying vot-
ing rights and 90 % of the voting rights comprised in the bid.

In the case referred to in (a), Member States may set a higher
threshold that may not, however, be higher than 95 % of the capi-
tal carrying voting rights and 95 % of the voting rights.

3. Member States shall ensure that rules are in force that make
it possible to calculate when the threshold is reached.

Where the offeree company has issued more than one class of
securities, Member States may provide that the right of squeeze-
out can be exercised only in the class in which the threshold laid
down in paragraph 2 has been reached.

If the offeror wishes to exercise the right of squeeze-out
4.
he/she shall do so within three months of the end of the time
allowed for acceptance of the bid referred to in Article 7.

5. Member States shall ensure that a fair price is guaranteed.
That price shall take the same form as the consideration offered

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in the bid or shall be in cash. Member States may provide that
cash shall be offered at least as an alternative.

Following a voluntary bid, in both of the cases referred to in para-
graph 2(a) and (b), the consideration offered in the bid shall be
presumed to be fair where, through acceptance of the bid, the off-
eror has acquired securities representing not less than 90 % of the
capital carrying voting rights comprised in the bid.

3. Without prejudice to the implementing measures already
adopted, four years after the entry into force of this Directive, the
application of those of its provisions that require the adoption of
technical rules and decisions in accordance with paragraph 2 shall
be suspended. On a proposal from the Commission, the European
Parliament and the Council may renew the provisions concerned
in accordance with the procedure laid down in Article 251 of the
Treaty and, to that end, they shall review them before the end of
the period referred to above.

Following a mandatory bid, the consideration offered in the bid
shall be presumed to be fair.

Article 19

Contact committee

Article 16

The right of sell-out

A contact committee shall be set up which has as its

1.
functions:

1. Member States shall ensure that, following a bid made to all
the holders of the offeree company’s securities for all of their secu-
rities, paragraphs 2 and 3 apply.

2. Member States shall ensure that a holder of remaining secu-
rities is able to require the offeror to buy his/her securities from
him/her at a fair price under the same circumstances as provided
for in Article 15(2).

(a)

(b)

to facilitate, without prejudice to Articles 226 and 227 of the
Treaty, the harmonised application of this Directive through
regular meetings dealing with practical problems arising in
connection with its application;

to advise the Commission,
amendments to this Directive.

if necessary, on additions or

3.

Article 15(3) to (5) shall apply mutatis mutandis.

2.
It shall not be the function of the contact committee to
appraise the merits of decisions taken by the supervisory authori-
ties in individual cases.

Article 17

Sanctions

Member States shall determine the sanctions to be imposed for
infringement of the national measures adopted pursuant to this
Directive and shall take all necessary steps to ensure that they are
put into effect. The sanctions thus provided for shall be effective,
proportionate and dissuasive. Member States shall notify the
Commission of those measures no later than the date laid down
in Article 21(1) and of any subsequent change thereto at the ear-
liest opportunity.

Article 18

Committee procedure

1.
The Commission shall be assisted by the European Securi-
ties Committee established by Decision 2001/528/EC (hereinaf-
ter referred to as ‘the Committee’).

2. Where reference is made to this paragraph, Articles 5 and 7
of Decision 1999/468/EC shall apply, having regard to Article 8
thereof, provided that the implementing measures adopted in
accordance with this procedure do not modify the essential pro-
visions of this Directive.

The period referred to in Article 5(6) of Decision 1999/468/EC
shall be three months.

Article 20

Revision

Five years after the date laid down in Article 21(1), the Commis-
sion shall examine this Directive in the light of the experience
acquired in applying it and, if necessary, propose its revision. That
examination shall include a survey of the control structures and
barriers to takeover bids that are not covered by this Directive.

To that end, Member States shall provide the Commission annu-
ally with information on the takeover bids which have been
launched against companies the securities of which are admitted
to trading on their regulated markets. That information shall
include the nationalities of the companies involved, the results of
the offers and any other information relevant to the understand-
ing of how takeover bids operate in practice.

Article 21

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive no later than 20 May 2006. They shall forthwith inform
the Commission thereof.

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When Member States adopt those provisions, they shall contain a
reference to this Directive or shall be accompanied by such refer-
ence on the occasion of their official publication. The methods of
making such reference shall be laid down by the Member States.

Article 22

Entry into force

This Directive shall enter into force on the 20th day after that of
its publication in the Official Journal of the European Union.

2. Member States shall communicate to the Commission the
text of the main provisions of national law that they adopt in the
fields covered by this Directive.

Article 23

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 21 April 2004.

For the European Parliament
The President
P. COX

For the Council
The President
D. ROCHE