REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Application of Directive 2007/44/EC amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector
Date: 2013-02-11
Institutions: European Commission
Subjects: application of EU law, disclosure of information, financial legislation, market supervision, merger, securities, shareholding

EUROPEAN 
COMMISSION 

Brussels, 11.2.2013  
COM(2013) 64 final 

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

Application of Directive 2007/44/EC amending Council Directive 92/49/EEC and 
Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural 
rules and evaluation criteria for the prudential assessment of acquisitions and increase 
of holdings in the financial sector 

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   EN 

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

Application of Directive 2007/44/EC amending Council Directive 92/49/EEC and 
Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural 
rules and evaluation criteria for the prudential assessment of acquisitions and increase 
of holdings in the financial sector 

1. 

1. 

2. 

1 

2 

3 

4 

INTRODUCTION 

According  to  Article  6  of  Directive  2007/44/EC1  amending  Council  Directive 
92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as 
regards  procedural  rules  and  evaluation  criteria  for  the  prudential  assessment  of 
acquisitions  and  increase  of  holdings  in  the  financial  sector  (hereinafter:  "the 
Qualifying  Holdings  Directive"  or  "the  Directive"),  the  Commission  has  to  review 
the application of the Directive and submit a report to the European Parliament and 
the  Council,  together  with  any  appropriate  proposals  to  review  the  directive.  The 
time limit for this was 21 March 2011. Due to the intensive work of the Commission 
on  a  comprehensive  programme  of  financial  regulatory  reform  in  order  to  build  a 
more stable and transparent financial system following the financial crisis and due to 
the  difficulty  to  assess  the  application  of  the  Directive  over  a  period  of  financial 
crisis work on the report had been postponed.  

The Qualifying Holdings Directive establishes the legal framework for the prudential 
assessment  of  acquisitions  by  natural  or  legal  persons  of  a  qualifying  holding  in  a 
credit institution, assurance, insurance or re-insurance undertaking or an investment 
firm. The Directive amended the European Directives (CRD2, MiFID3, Solvency II4) 
applicable  to  credit  institutions,  investment  firms,  and  insurance  and  reinsurance 
undertakings. It harmonizes the conditions for notifying a proposed acquisition or a 
disposal  of  a  qualifying  holding;  defines  a  clear  and  transparent  assessment 
procedure; and, specifies a list of strictly prudential assessment criteria. These rules 
are subject to maximum harmonization, without the Member States being able to lay 

Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 amending 
Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as 
regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and 
increase of holdings in the financial sector, OJ L 247 of 21.09.2007, p.1. Available at: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:247:0001:0016:EN:PDF.  
Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the 
taking up and pursuit of the business of credit institutions (recast), OJ L 177/1 of 30.06.2006 
Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in 
financial  instruments  amending  Council  Directives  85/611/EEC  and  93/6/EEC  and  Directive 
2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, 
OJ L 145/1 of 30.04.2004 
Directive  2007/44/EC  amended 
the  EU  (Re-)Insurance  Directives  92/49/EEC,  2002/83/EC, 
2005/68/EC.  Directive  2009/138/EC  of  the  European  Parliament  and  of  the  Council  of  25  November 
2009  on  the  taking  up  and  pursuit  of  the  business  of  Insurance  and  Reinsurance  (Solvency  II),  OJ  L 
335/1 of 17.12.2009 recasted these three Directives. 

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down stricter rules. Two of those afore-mentioned Directives, CRD and MiFID, are 
currently under review. The proposals of the Commission as to those Directives do 
not amend the rules introduced in 2007.  

3. 

The  objectives  pursued  by  the  Qualifying  Holdings  Directive  are  important  to 
financial markets. More specifically, the objectives of the Directive are:  

• 

• 

To  improve  the  legal  certainty,  clarity  and  transparency  of  the  supervisory 
approval  process  with  regard  to  acquisitions  and  increase  of  shareholdings  in 
the banking, insurance and securities sectors; and 

To ensure that all proposed acquisitions or disposals of a qualifying holding are 
treated in the same way throughout the EU and across sectors. 

4. 

Achieving  the  goals  of  the  Directive  requires national supervisory authorities in all 
three  sectors  to  cooperate  closely  and  to  promote  convergence  in  their  supervisory 
practices within the common legal framework established by the Directive. In 2008 
the  former  three  Level-3  Committees  (CEBS,  CESR,  and  CEIOPS)  therefore 
developed  non-binding  guidelines  for  the  prudential  assessment  of  acquisitions5 
(hereinafter  "3L3  Guidelines")  in  order  to  ensure  convergent  decision-making 
practices within the EU. The objectives pursued in the guidelines are to: 

• 

• 

• 

Reach a common understanding of the five prudential assessment criteria laid 
down by the Directive; 

Define  appropriate  cooperation  arrangements  that  ensure  an  adequate  and 
timely flow of information between supervisors; and 

Establish  an  exhaustive  and  harmonised  list  of  information  that  proposed 
acquirers  should  include  in  their  notifications  to  the  competent  supervisory 
authorities.  

5. 

Furthermore,  in  the  banking  and  investment  services  sectors,  the  recently  adopted 
Directive  2010/78/EU6  enables  the  European  Supervisory  Authorities  (ESAs)  to 
submit to the Commission for adoption7: 

5 

6 

7 

as 

sector 

required 

Directive 

2007/44/EC. 

The Committee of European Banking Supervisors (CEBS), the Committee of European Insurance and 
Occupational  Pensions  Supervisors  (CEIOPS)  and  the  Committee  of  European  Securities  Regulators 
(CESR) joint guidelines for the prudential assessment of acquisitions and increases in holdings in the 
financial 
at: 
by 
http://www.eba.europa.eu/getdoc/09acbe4b-c2ee-4e65-b461-331a7176ac50/2008-18-12_M-A-
Guidelines.aspx 
Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 amending 
Directives  98/26/EC,  2002/87/EC,  2003/6/EC,  2003/41/EC,  2003/71/EC,  2004/39/EC,  2004/109/EC, 
2005/60/EC,  2006/48/EC,  2006/49/EC  and  2009/65/EC  in  respect  of  the  powers  of  the  European 
Supervisory Authority (European Banking Authority), the European Supervisory Authority (European 
Insurance  and  Occupational  Pensions  Authority)  and  the  European  Supervisory  Authority  (European 
Securities  and  Markets  Authority),  OJ  L  331of  12.12.2010,  p.120.  Available  at:  http://eur-
lex.europa.eu/Result.do?T1=V3&T2=2010&T3=78&RechType=RECH_naturel&Submit=Search 
In  the  negotiations  on  Omnibus  II  that  are  currently  taking  place  the  co-legislators  are  discussing  an 
empowerment  for  EIOPA  to  develop  regulatory  technical  standards  and  implementing  technical 
standards for insurances on the same subject. 

Available 

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6. 

2. 

7. 

8. 

• 

• 

Regulatory technical standards to establish an exhaustive list of information to 
be  included  by  proposed  acquirers  in  their  notification  to  acquire  qualifying 
holdings; and 

Implementing technical standards to establish common procedures, forms and 
templates  for  the  consultation  process  within  the  prudential  assessment 
between the relevant competent authorities.  

This  report  describes  the  impact  of  and  compliance  with  the  Qualifying  Holdings 
Directive (section 2); identifies the main issues emerging from the application of the 
Directive (section 3); and, draws a number of conclusions (section 4).  

IMPACT OF AND COMPLIANCE WITH THE QUALIFYING HOLDINGS DIRECTIVE  

The  Commission  services  conducted  a  public  consultation  of  stakeholders  and  sent 
out  a  questionnaire,  including  a  request  for  statistical  data,  to  the  competent 
authorities. Overall, the received responses indicate that the Directive contributed to 
the reduction of barriers for acquisitions in the financial sector and that domestic and 
cross-border transactions are treated equally across the EU. Most responses confirm 
that  the  Directive  has  been  conducive  to  reach  a  common  understanding  on  the 
prudential assessment of  acquisitions  in the financial sector across Europe and to a 
level playing field. However, the responses also reveal that in several Member States 
(CZ, DE, IE) the Directive has not led to major changes in the legal framework, since 
similar rules already existed prior to the adoption of the Directive. 

This  positive  assessment  of  the  Directive  is  also  confirmed  by  the  statistical  data 
received  from  national  supervisors.  Between  2008  and  2011,  more  than  10,700 
proposed acquisitions of qualifying holdings were notified, with more than 84 % of 
the  notifications  taking  place  in  three  Member  States  (UK,  NL,  DE)8.  National 
competent authorities authorized the large majority of these notifications and the data 
do  not  reveal  any  significant  differences  between  the  treatment  of  domestic  and 
cross-border  transactions.  In  total,  only  50  proposed  transactions  (less  than  0.5%) 
were  prohibited;  notifications  were  withdrawn  in  about  450  cases  (4.3%)9.  The 
number of notifications over the period was relatively stable, with a slight decrease 
since 2010 which can mostly be attributed to a significant drop in notifications in the 
United  Kingdom  following  administrative  changes.  Due  to  the  financial  crisis  231 
crisis-related  acquisitions,  i.e.  public  sector-driven  acquisitions  for  stabilisation  of 
financial markets, took place.  

9. 

No  substantial  compliance  issue  has  emerged  in  relation  to  the  application  of  the 
legal  framework  in  the  Member  States.  However  the  survey  and  the  public 
consultation reflect that some minor issues exist which are analysed in the following. 

8 
9 

See Figure 1 in the Annex to this Report. 
See Figure 2 in the Annex to this Report. 

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3. 

10. 

11. 

THE REVIEW OF THE APPLICATION OF THE DIRECTIVE: EMERGING ISSUES 

Several issues emerge from the review of the application of the Qualifying Holdings 
Directive. 

First, there are some concerns as regards the legal certainty of the definition of the 
notification requirement and its application by national supervisors. It is provided in 
the Directive, that10: 

"Member  States  shall  require  any  natural  or  legal  person  or  such  persons  acting  in 
concert (hereinafter referred to as the proposed acquirer), who have taken a decision 
either to acquire, directly or indirectly, a qualifying holding in" a supervised entity11 
"or  to  further  increase,  directly  or  indirectly,  such  a  qualifying  holding  in"  a 
supervised  entity"  as  a  result  of  which  the  proportion  of  the  voting  rights  or  of  the 
capital held would reach or exceed 20 %, 30 % or 50 % or so that" the supervised 
entity  "would  become  its  subsidiary  (hereinafter  referred  to  as  the  proposed 
acquisition),  first  to  notify  in  writing  the  competent  authorities  of"  the  supervised 
entity  "in  which  they  are  seeking  to  acquire  or  increase  a  qualifying  holding, 
indicating the size of the intended holding and relevant information, as referred to in" 
relevant articles of the amended directives. 

The  survey  reveals  that  the  following  concepts  used  in  the  definition  of  the 
notification  requirement  can  potentially  cause  inconsistent  application  among  the 
Member States: 

• 

• 

The  notion  of  "indirect  qualifying  holding"  is  not  defined  in  the  Directive. 
Although the 3L3 Guidelines provide some clarification of what constitutes an 
indirect  holding12,  the  Member  States  largely  rely  on  the  concepts  in  their 
respective national laws. The survey of competent authorities shows that, as a 
result,  different  methods  are  employed  to  establish  the  existence  of  indirect 
shareholding and hence different interpretations exist as to whether a proposed 
acquisition of a qualifying holding has to be notified or not. The results of the 
public  consultation  confirm  that  different  approaches  are  taken  by  the 
competent  authorities  of  the  Member  States  to  determine  the  existence  of  an 
indirect holding, thus leading to a different treatment of similar situations. 

The definition of the notion "persons acting in concert" is also not provided in 
the Directive. The 3L3 Guidelines provide for a very broad explanation of what 
persons  are  deemed  to  be  acting  in  concert13.  The  survey  shows  that  the 
interpretation of this notion can be divergent to a limited extent. The need for 
further  clarification  has  been  also  expressed  in  the  stakeholders'  responses  to 
the  public  consultation.  The  public  consultation  also  reveals  that  differences 

10 
11 

12 
13 

Article 10, paragraph 3 MiFID; Article 19, paragraph 1 CRD; Article 57, paragraph 1 Solvency II 
The Qualifying Holdings Directive amends five sectoral directives by including an identical notification 
requirement. The term "supervised entity" replaces terms "credit institution", "assurance undertaking", 
"insurance  undertaking",  "re-insurance  undertaking"  and  "investment  firm",  which  are  used  in  the 
sectoral directives. 
Paragraph 15, point 6 of Appendix I of 3L3 Guidelines. 
Under  point  1  of  Appendix  I  of  3L3  Guidelines  "  persons  are  ‘acting  in  concert’  when  each  of  them 
decides to exercise his rights linked to the shares he acquires in accordance with an explicit or implicit 
agreement made between them". 

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between  the  definitions,  used  in  the  Qualifying  Holding  Directive,  Takeover 
Bids  Directive14  and  Transparency  Directive15,  raise  some  concerns  in  the 
private sector. 

• 

Some national supervisors indicated that the notion of a "decision to acquire" 
should  not  be  applicable  in  situations  where  the  acquirer  crossed  a  threshold 
without  taking  the  conscious  decision  to  do  so,  for  example,  in  case  of 
inheritance or capital reduction of the issuer However it is explained in the 3L3 
Guidelines  that  "notification  is  also  required  if  the  acquirer  involuntarily 
crosses a threshold". The lack of clarity between the provision in the Directive 
and  the  explanation  provided  in  the  3L3  Guidelines,  as  well  as  the  potential 
risk for uneven application it can cause, was noted in one of the responses to 
the public consultation. 

12. 

Second, it appears that further action is needed to ensure coherent application of the 
proportionality  principle.  The  principle  is  mentioned  in  recitals  5,  8  and  9  of  the 
Qualifying  Holding  Directive.  Paragraph  18  of  the  3L3  Guidelines  further  clarifies 
the application of the proportionality principle:  

"This  principle,  which  is  mentioned  in  recitals  5,  8  and  9,  applies  both  to  the 
composition of the required information and the assessment procedures. The type of 
information required from the acquirer may be influenced by the particularities of the 
acquirer  (legal  vs.  natural  person,  supervised  financial  institution  vs.  other  entity, 
whether  or  not  the  financial  institution  is  supervised  in  the  EEA  or  an  equivalent 
third  country,  etc.),  the  particularities  of  the  proposed  transaction  (intra-group  vs. 
“external”  transaction  etc.),  the  degree  of  involvement  of  the  acquirer  in  the 
management  of  the  target  financial  institution,  or  the  level  of  the  holding  to  be 
acquired." 

However  the  results  of  the  public  consultation  provide  for  some  evidence  that 
national supervisory authorities do not sufficiently apply the proportionality principle 
both in terms of the information required and the assessment procedure. In particular, 
concerns  have  been  raised  regarding  the  assessment  of  intra-group  transactions16. 
The  survey  shows  that  in  such  cases  the  assessment  procedure  is  not  always 
consistent.  Some  Member  States  apply  a  "light-version"  of  the  procedure  in  such 
cases or even do not always require a formal notification for intra-group transactions 
within cross-border banking groups; in contrast, some other Member States, based on 
the  stakeholders'  responses  to  the  public  consultation,  assess  all  intra-group 
transactions in the same way as the rest of the notifications. In the view of the private 

14 

15 

16 

Article  2(1)  (d)  of  Directive  2004/25/EC  of  the  European  Parliament  and  of  the  Council  of  21  April 
2004 on takeover bids, OJ L 142 of 30.4.2004, p. 12.  
Article 10(a) of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 
2004 on the harmonisation of transparency requirements in relation to information about issuers whose 
securities are admitted to trading on a regulated market, OJ L 390 of 31.12.2004, p. 38. Available at: 
http://eur-
lex.europa.eu/Result.do?T1=V3&T2=2004&T3=109&RechType=RECH_naturel&Submit=Search 
Under paragraph 19 of 3L3 Guidelines "the proportionality principle implies that in the case of intra-
group transactions within the group of an existing shareholder without any real or substantial change in 
the direct or ultimate shareholding of the financial institution, adequate information should be provided 
to the target supervisor. On the other hand, the shareholder's group should not be re-assessed since the 
transaction does not affect the influence it exercises over the financial institution". 

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13. 

14. 

sector representatives who participated in the public consultation, this constitutes an 
unnecessary burden. 

Third, it appears that some assessment criteria laid down in the Qualifying Holdings 
Directive  need  to  be  further  clarified.  Under  the  Directive  the  national  supervisory 
authorities are required inter alia to assess "the financial soundness of the proposed 
acquirer, in particular in relation to the type of business pursued and envisaged in 
the  [financial  institution]  in  which  the  acquisition  is  proposed."17  The  3L3 
Guidelines18  also  explain  the  purpose  of  this  assessment  criterion  and  provide  an 
indicative list of the information required for assessing the financial soundness of the 
proposed  acquirer.  However  the  survey  and  the  public  consultation  show  that 
documents required by the national supervisory authorities for the assessment differ 
among the Member States. It also appears that it is not sufficiently clear whether the 
solvency  of  the  proposed  acquirer  should  be  assessed  under  this  criterion.  Finally, 
there  are  some  indications  that  the  use  of  own  funds  versus  borrowed  funds  is 
interpreted inconsistently.  

Furthermore, it appears that at least for a few national supervisory authorities it has 
not been fully clear what constitutes money laundering and terrorist financing when 
assessing "whether there are reasonable grounds to suspect that, in connection with 
the  proposed  acquisition,  money  laundering  or  terrorist  financing  within  the 
meaning  of  Article  1  of  Directive  2005/60/EC  is  being  or  has  been  committed  or 
attempted,  or  that  the  proposed  acquisition  could  increase  the  risk  thereof".19  One 
Member State pointed out the difficulty in ensuring the transparent application of this 
assessment criterion due to the sensitive nature of the information involved. 

15. 

Fourth,  some  inconsistencies  have  been  observed  with  regard  to  the  application  of 
the  provisions  of  the  Directive  on  the  time  limits.  It  is  provided  in  the  Qualifying 
Holdings Directive that20: 

"The competent authorities shall, promptly and in any event within two working days 
following  receipt  of  the  notification...,  as  well  as  following  the  possible  subsequent 
receipt of the information..., acknowledge receipt thereof in writing to the proposed 
acquirer. 

The survey shows that the acknowledgement of the receipt is understood differently 
by the national supervisory authorities, i.e. in some Member States it is interpreted as 
a formal confirmation not involving any assessment of the received documents while 
in other Member States the acknowledgement is issued after the national supervisory 
authorities  has  examined  the  completeness  of  the  information  provided  in  the 
received documents. Furthermore, the Directive provides that21: 

"The  competent  authorities  shall  have  a  maximum  of  60  working  days  as  from  the 
date of the written acknowledgement of receipt of the notification and all documents 

17 

18 
19 

20 
21 

Article 10b, paragraph 1, letter c MiFID; Article 19a, paragraph 1, letter c CRD; Article 59, paragraph 
1, letter c Solvency II 
Paragraph 56-66. 
Article 10b, paragraph 1, letter e MiFID; Article 19a, paragraph 1, letter e CRD; Article 59, paragraph 
1, letter e Solvency II 
Article 10a, paragraph 1 MiFID; Article 19, paragraph 2 CRD; Article 58, paragraph 1 Solvency II 
Article10a, paragraph 1 MiFID; Article 19, paragraph 2 CRD; Article 58, paragraph 1 Solvency II 

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16. 

17. 

18. 

19. 

required  by  the  Member  State  to  be  attached  to  the  notification...  to  carry  out  the 
assessment." 

The survey provides some evidence that in some Member States this time limit has 
been  exceeded.  Most  national  supervisory  authorities  recommended  a  prolongation 
of the time limits. On the other hand, the results of the public consultation reveal that 
private  sector  stakeholders  consider  this  time  limit  as  being  too  long  and  would 
instead  be  in  favour  of  shortening  it,  at  least  when  the  acquirer  is  an  EU  regulated 
entity and in the cases of intra-group transactions.  

Fifth, diverging practices among the Member States as regards conditional approvals 
of  the  acquisitions  have  been  observed.  The  results  of  the  survey  showed  that  in 
some  Member  States  all  proposed  acquisitions  are  approved  subject  to  conditions, 
while in other Member States the Directive is interpreted as not allowing conditional 
approvals.  

Sixth,  the  survey  reveals  that  the  cooperation  between  different  (sectoral  and/or 
national) supervisory authorities is perceived in some cases as formalistic and time-
consuming.  It  appears  also  that  diverging  approaches  are  taken  by  the  competent 
authorities  in  different  Member  States  towards  the  type  and  comprehensiveness  of 
the  information  requested  from  the  concerned  competent  authorities.  Furthermore, 
cooperation  with  third  country  supervisory  authorities  is  sometimes  perceived  as 
inefficient.  The  need  further  to  improve  cooperation  between  the  competent 
authorities has been also expressed in several responses to the public consultation.  

Furthermore,  in  order  to  ensure  greater  convergence  of  the  assessment  of  proposed 
acquisitions of qualifying holdings in all areas of the financial sector and to further 
develop  the  single  market,  several  stakeholders  were  in  favour  of  extending  the 
framework  to  market  segments  that  are  currently  not  covered  by  the  Directive,  in 
particular regulated markets. 

Finally, the financial crisis has demonstrated that mergers and acquisitions – at least 
in  the  banking  sector  –  can  lead  to  financial  stability  risks.  Currently  the  Directive 
does  not  contain  an  explicit  assessment  criterion  allowing  competent  authorities  to 
assess the impact of the proposed acquisition on the stability of the financial system. 
However, financial stability is implicitly addressed by the assessment criteria of the 
Directive. In particular, the criteria on financial soundness of the proposed acquirer 
and  on  compliance  with  prudential  requirements 
the 
assessment  of  financial  stability  risks  since  both  criteria  have  a  forward  looking 
element.  

implicitly  encompass 

It can be noted that an explicit financial stability criterion has been introduced in the 
US with the Dodd-Frank Act and already been applied when assessing the proposed 
acquisitions. The results of the public consultation show that, in general, the need to 
assess the potential impact of the proposed acquisition on the stability of the financial 
system is recognized by the stakeholders. On the other hand, the survey reveals that 
the  competent  authorities  have  diverging  views  regarding  the  need  for  an  explicit 
financial stability criterion; although it is broadly agreed that financial stability risks 
have to be taken into account when assessing the proposed acquisitions.  

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4. 

20. 

21. 

22. 

23. 

24. 

CONCLUSIONS 

The  review  of  the  application  of  the  Qualifying  Holdings  Directive  shows  that, 
overall, the regime created by the Directive is working satisfactorily. No substantial 
compliance issues have emerged in relation to the application of the legal framework 
in the Member States and the Directive has contributed to the uniform treatment of 
national and cross-border acquisitions of qualifying holdings in the financial sector. 
However,  it  has  to  be  kept  in  mind  that  the  Directive  only  started  to  be  applied  in 
2009  and  that  due  to  the  economic  and  financial  crisis,  the  circumstances  in  the 
financial sector have been exceptional. It is therefore difficult accurately to assess the 
effectiveness  of  the  established  legal  framework  for  the  assessment  of  mergers  and 
acquisitions in the financial sector. 

Nevertheless,  some  shortcomings  in  the  application  of  the  Directive  could  be 
addressed  to  ensure  consistent  application  throughout  the  EU  and  across  financial 
sectors  and  to  provide  acquirers  with  more  legal  certainty.  One  way  to  address 
identified  inconsistencies  in  the  application  could  consist  in  asking  the  ESAs  to 
update  and  clarify  the  3L3  guidelines.  Such  a  clarification  could,  for  instance, 
provide  more  precise  guidance  on  how  to  apply  the  proportionality  principle;  deal 
with indirect holdings; apply the time limits; and, ensure that the assessment criteria 
are interpreted and applied consistently in Member States and cross-sectorally. The 
Commission intends to ask the ESAs to further clarify the existing guidelines.  

In order to tackle coordination problems between national supervisory authorities in 
case  of  cross-sectoral  or  cross-border  transactions,  the  ESAs  are  empowered  to 
develop draft regulatory and implementing technical standards, as already provided 
for in Directive 2010/78/EU, in order to correct for coordination problems between 
national  supervisors  and  reduce  uncertainties  as  regards  the  information  that  has  to 
be sent to supervisors for the assessment of proposed acquisitions. 

The Action Plan on Corporate Governance and Company law of 12 December 2012 
addresses  the  issue  of  acting  in  concert.  The  Commission  recognises  the  need  for 
guidance to clarify the conceptual boundaries and to provide more certainty on this 
issue  in  order  to  facilitate  shareholder  cooperation  on  corporate  governance  issues. 
During  2013  the  Commission  will  work  closely  with  the  competent  national 
authorities  and  ESMA  with  a  view  to  developing  guidance  to  clarify  the  rules  on 
acting  in  concert,  notably  in  the  context  of  the  rules  applicable  to  takeover  bids. 
Taking into account progress made in this work, the Commission will consider with 
the  ESAs  what  further  action  (if  any)  may  be  needed  to  address  specific  issues 
arising from the application of the concept of acting in concert in the context of the 
Qualifying Holdings Directive. 

Furthermore, it might be considered – in light of the financial crisis – to incorporate 
financial  stability  aspects  more  explicitly  in  the  assessment  process.  This  could  be 
achieved by introducing a resolvability assessment before the transactions take place. 
The Commission intends to carry out an analysis in the course of 2013 assessing the 
different  options,  including  the  need  to  frame  such  a  criterion  in  a  way  that  avoids 
divergent implementation by competent authorities. 

25. 

In  line  with  the  objectives  of  the  Qualifying  Holdings  Directive,  a  similar  legal 
framework for the assessment of acquisitions and increase of holdings could also be 

EN 

9 

   EN 

 
26. 

introduced  for  regulated  markets,  as  defined  in  Article  4  paragraph  1  point  14  of 
MiFID. 

The currently negotiated proposal for a Council Regulation conferring specific tasks 
on  the  ECB  concerning  policies  relating  to  the  prudential  supervision  of  credit 
institutions  provides  for  the  ECB  to  carry  out,  in  close  cooperation  with  national 
competent authorities, the assessment of applications for the acquisition and disposal 
of  qualifying  holdings.  The  ECB  will  base  its  decision  on  the  suitability  of  the 
proposed  acquirer  and  the  financial  soundness  of  the  proposed  acquisition  on  the 
assessment  criteria  set  out  in  the  Qualifying  Holdings  Directive  and  in  accordance 
with the procedure and within the assessment periods set out therein as well as the 
respective national law transposing the relevant Union law. The scope of the ECB’s 
competences  is  limited  to  credit  institutions  established  in  participating  Member 
States.  No  amendments  to  the  Directive  are  necessary  in  consequence  of  the 
proposed  competence  of  the  ECB  for  assessing  applications  for  the  acquisition  and 
disposal of qualifying holdings. 

27. 

Member  States,  the  European  Parliament,  the  European  Economic  and  Social 
Committee  and  other  interested  parties  are  invited  to  submit  their  views  on  the 
review described in this report by 31 March 2013. Based on the received comments 
and  the  results  of  the  analysis  mentioned  in  paragraph  23,  the  Commission  will 
communicate  by  the  end  of  2013  if  the  regime  for  the  assessment  of  qualifying 
holdings needs to be reinforced.  

EN 

10 

   EN 

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

Application of Directive 2007/44/EC amending Council Directive 92/49/EEC and Directives 
2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and 
evaluation criteria for the prudential assessment of acquisitions and increase of holdings in 
the financial sector 

Figure 1: Number of notifications in the EU 2008-201122 

3500

3000

2500

2000

1500

1000

500

0

22 

2008

2009

2010

2011

EU

United Kingdom

Netherlands

Germany

The Commission received statistical data from 25 Member States. Furthermore, the data on acquisitions 
of qualifying holdings in UCITS management companies has been included in the responses by several 
Member  States.  An  obligation  to  notify  the  proposed  acquisition  of  qualifying  holding  in  UCITS 
management  companies  is  imposed  under  Article  11(1)  of  Directive  2009/65/EC  of  the  European 
Parliament  and  of  the  Council  of  13  July  2009  on  the  coordination  of  laws,  regulations  and 
administrative  provisions  relating  to  undertakings  for  collective  investment  in  transferable  securities 
(UCITS), 
http://eur-
lex.europa.eu/Result.do?T1=V3&T2=2009&T3=65&RechType=RECH_naturel&Submit=Search 

17.11.2009, 

Available 

p.32. 

320 

OJ 

at: 

of 

L 

EN 

11 

   EN 

 
 
                                                 
Figure 2: Percentage of withdrawn notifications and prohibited acquisitions in EU 2008-2011 

6

5

4

3

2

1

0

2008

2009

2010

2011

Withdrawn notifications

Prohibited acquisitions

EN 

12 

   EN