CELEX: 51987PC0422
Language: en
Date: 1987-09-04
Title: AMENDED PROPOSAL FOR A COUNCIL DIRECTIVE ON INFORMATION TO BE PUBLISHED WHEN MAJOR HOLDINGS IN THE CAPITAL OF A LISTED COMPANY ARE ACQUIRED OR DISPOSED OF

No C 255/6                                 Official Journal of the European Communities                                    25.9. 87
                                                                   II
                                                            (Preparatory Acts)
                                                     COMMISSION
               Amended proposal for a Council Directive on information to be published when major holdings
                                  in the capital of a listed company are acquired or disposed of (')
                                                           COM(87) 422 final
                (Submitted by the Commission to the Council pursuant to the third paragraph of Article 149 of the
                                                  EEC Treaty on 4 September 1987)
                                                             (87/C 255/05)
                (') OJ No C 351, 31. 12. 1985, S. 35.
                        ORIGINAL PROPOSAL                                                     AMENDED PROPOSAL
                                       THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European                   Having regard to the Treaty establishing the European
Economic Community, and in particular Article 54 (3)                    Economic Community, and in particular Article 54,
(g) thereof,                                                            thereof,
Having regard to the proposal from the Commission,                      Unchanged
Having regard to the opinion of the European Par-                       In cooperation with the European Parliament,
liament,
Having regard to the opinion of the Economic and                        Unchanged
Social Committee,
                                                        Recitals U n c h a n g e d
                             Article 1                                                             Article 1
1.    This Directive shall apply to persons who acquire                 1.    This Directive shall apply to persons who as owners
or dispose of major holdings, as defined in Article 3, in               acquire or dispose of major holdings, as defined in
the subscribed capital of a company which is incor-                     Article 3 in the subscribed capital of a company which is
porated in a Member State and whose shares are                          incorporated in a Member State and whose shares are
officially listed on a stock exchange situated or operating             officially listed on a stock exchange situated or operating
within a Member State.                                                  within a Member State.
2.     "Where the acquisition or disposal of major holdings             2.     Unchanged
is carried out by means of certificates representing
shares, this Directive shall apply to the bearers of those
certificates, and not to the issuer.
                                                                        3.     Paragraph 5 (c) of Schedule C of Directive
                                                                        79/279/EEC coordinating the conditions for the
                                                                        admission of securities to official stock exchange listing is
                                                                        hereby replaced by the following:
                                                                        '(c) The company must inform the public of any changes
                                                                             in the structure (shareholders and breakdown of
                                                                             holdings) of the major holdings in its capital as
                                                                             compared with information previously published on
                                                                             that subject as soon as such changes come to its
                                                                             notice.
 ---pagebreak---  25.9. 87                              Official Journal of the    >ean Communities                              No C 255/7
                     ORIGINAL PROPOSAL                                                AMENDED PROPOSAL
                                                                     In particular, companies which are not subject to the
                                                                     provisions of Council Directive . . . / . . ./EEC on
                                                                     information to be published when major holdings in
                                                                     the capital of a listed company are acquired or
                                                                     disposed of must inform the public where it has come
                                                                     to their notice that a person has acquired or disposed
                                                                     of a percentage of shares so that his holding exceeds
                                                                     or falls below one of the thresholds set out in Article
                                                                     3 of that Directive.'
                          Article 2                                                        Article 2
Member States may subject the persons and companies            Member States may subject the persons and companies
respectively referred to in Articles 1 and 8 to stricter       referred to in Articles 1 and 8 to stricter requirements
requirements than those provided for by this Directive,        than those provided for by this Directive, or to
or to additional requirements, provided that they are          additional requirements, provided that they apply
generally applicable.                                          generally to all shareholders and to all companies or to
                                                               all companies of a given class.
                          Article 3                                                        Article 3
Where a person acquires or disposes of shares in a             Unchanged
company as referred to in Article 1 and where, following
that acquisition or disposal, the percentage of subscribed
capital held by that person in that company reaches or
exceeds the thresholds of 10 °/o, 20 % , 7», 50 %, 7» or
90 % of the subscribed capital or goes below those
thresholds, he shall notify the company within seven
calendar days of the percentage of subscribed capital he
holds following that acquisition or disposal.
                         Article 4                                                         Article 4
1.    In order to assess whether a person acquiring or         1.     In order to assess whether a person acquiring or
disposing of holdings is required to make the declaration      disposing of holdings is required to make the declaration
provided for in Article 3, account shall be taken of           provided for in Article 3, shares held by other persons in
shares held by other persons in their own name but on          their own name but on behalf of that person shall also he
behalf of the person acquiring or disposing of the             deemed to belong to that person.
holdings.
2.    Where the person acquiring or disposing of               2.     Unchanged
holdings is an undertaking, shares held by a subsidiary or
shares held by other persons in their own name but on
behalf of a subsidiary shall also be deemed to belong to
the person acquiring or disposing of the holdings.
                          Article 5                                                        Article 5
 1.   For the purposes of this Directive, 'subsidiary'         1.     For the purposes of this Directive, 'subsidiary'
means any undertaking in which another undertaking:            means any undertaking in which another undertaking:
(a) has a majority of the shareholders' or members'            (a) has a majority of the shareholders' or members'
    voting rights;                                                  voting rights;
    or                                                              or
(b) has the right to appoint or remove a majority of the       (b) has the right to appoint or remove a majority of the
    members of the administrative, management or                    members of the administrative, management or
    supervisory body and is at the same time a                      supervisory body (subsidiary undertaking) and is at
    shareholder or member;                                          the same time a shareholder in or member of that
                                                                    undertaking;
 ---pagebreak--- No C 255/8                               Official Journal      ie European Communities                                   25. 9. 87
                        ORIGINAL PROPOSAL                                                   AMENDED PROPOSAL
     or                                                                  or
(c) is a shareholder or member and controls alone a                  (c) is a shareholder or member and controls alone a
     majority of the shareholders' or members' voting                    majority of the shareholders' or members' voting
     rights pursuant to an agreement entered into with                   rights pursuant to an agreement entered into with
     other shareholders or members of the undertaking                    other shareholders or members of the subsidiary
     (subsidiary).                                                       undertaking.
2.     For the purposes of paragraph 1, the parent under-            2.    Unchanged
taking's rights as regards voting, appointment and
removal shall have added to them the rights of any other
subsidiary and those of persons acting in their own name
but on behalf of the parent undertaking or any other
subsidiary.
                           Article 6                                                           Article 6
1.     For the purposes of Article 3, where persons act in           1.    Unchanged
concert, the holdings of each one of such persons shall
be added together. In this case, the obligation to make
the declaration provided for in Article 3 shall fall upon
each one of them. This declaration shall indicate the
percentage of subscribed capital held by the person
making the declaration and the percentages of such
capital held by the persons with whom he is acting in
concert.
2.     'Persons acting in concert' means persons who have            2.    For the purposes of paragraph 1, 'persons acting in
concluded an agreement which may lead to their                       concert' means persons who have concluded an
adopting a common policy in respect of a company.                    agreement which may lead to their adopting a common
                                                                     policy in respect of a. company in the subscribed capital
                                                                     of which each of such persons owns a holding. It shall he
                                                                     presumed that such an agreement exists between a parent
                                                                     and a subsidiary undertaking or between undertakings
                                                                     which have a common parent unless such undertakings
                                                                     prove the contrary.
                           Article 7                                                           Article 7
Member States may exempt acquisitions or disposals of                Member States may exempt from the declaration
major holdings made by a market maker in the pursuit of              provided for in Article 3 acquisitions or disposals of
his activity from the declaration provided for in Article 3.         major holdings made by a dealer in securities who
                                                                     undertakes to maintain a market in certain securities by
                                                                     buying and selling such securities on his own account at a
                                                                     price fixed by him in the light of the state of the market.
                           Article 8                                                           Article 8
1.     A company which has received the declaration                  1.    Unchanged
referred to in Article 3 shall in turn notify it to the public
in each of the Member States in which its shares are
officially listed on a stock exchange not later than seven
calendar days following receipt of that information.
 ---pagebreak--- 25.9. 87                                Official Journal of the European Communities                                No C 255/9
                      ORIGINAL PROPOSAL                                                  AMENDED PROPOSAL
2.    Should the percentage of subscribed capital held by          2.    Where the subscribed capital of a company is
the person making the declaration provided for in Article          divided into shares which carry voting rights and those
5 differ from the percentage of voting rights actually             which do not, the company shall notify the public where
held by that person, the company which has received the            the percentage of either category of shares held by a
declaration shall notify the public of both percentages.           person as a result of acquiring or disposing of such shares
                                                                   reach or exceed the thresholds specified in Article 3.
3.    The information shall be made available to the               3.    The information shall be published in one or more
public in accordance with the rules of Article 17 of               newspapers distributed throughout the Member State or
Directive 79/279/EEC.                                              distributed widely therein or shall be made available to
                                                                   the public either in writing in places indicated by
                                                                   announcements to be published in one or more
                                                                   newspapers distributed throughout the Member State or
                                                                   distributed widely therein or by other equivalent means
                                                                   approved by the competent authorities. The issuers must
                                                                   simultaneously send such information to the competent
                                                                   authorities.
                                                                   The information referred to in the first subparagraph
                                                                   shall be published in the official language or languages, or
                                                                   in one of the official languages or in another language
                                                                   provided that in the Member State in question the official
                                                                   language or languages or such other language is or are
                                                                   customary in the sphere of finance and accepted by the
                                                                   competent authorities.
                           Article 9                                                         Article 9
The competent authorities referred to in Article 10 may            The competent authorities referred to in Article 10 may
exempt the persons and companies respectively referred             exempt the persons and companies respectively referred
to in Articles 1 and 8 from the requirement to notify, as          to in Articles 1 and 8 from the requirement to notify,' as
defined in Articles 3 and 8 respectively, where those              defined in Articles 3 and 8 respectively, where those
authorities consider that the disclosure of such infor-            authorities consider that the disclosure of such infor-
mation would be against the public interest or would               mation would be contrary to the public interest or
seriously harm those persons or companies, provided that           seriously detrimental to the issuer, provided that, in the
the absence of such notification would not mislead the             latter case, such omission would not be likely to mislead
public in its assessment of the shares concerned.                  the public with regard to facts and circumstances,
                                                                   knowledge of which is essential for the assessment of the
                                                                   securities in question.
                          Article 10                                                        Article 10
 1.   Member States shall designate         the competent          1.    Member States shall designate the competent
authority or authorities and shall inform  the Commission          authority or authorities for the purposes of this Directive
accordingly, specifying any division of     duties between         and shall inform the Commission accordingly, specifying,
those authorities. They shall, moreover,    ensure that this       where appropriate, any division of duties between those
Directive is applied.                                              authorities. They shall, moreover, ensure that this
                                                                   Directive is applied.
2.    Member States shall ensure that the competent                2.    Unchanged
authorities have such powers as may be necessary for the
exercise of their duties.
3.    The competent authorities in the Member States               3.    Unchanged
shall cooperate wherever necessary for the purpose of
carrying out their duties and shall exchange any infor-
mation required for that purpose.
 ---pagebreak--- No C 255/10                            Official Journal of the European Communities                  25.9.87
                     ORIGINAL PROPOSAL                                              AMENDED PROPOSAL
                          Article 11                                                   Article 11
The Contact Committee set up by Article 20 of Directive           Unchanged
79/279/EEC shall also have as its function:
(a) to permit regular consultations on any practical              Unchanged
    problems which arise from the application of this
    Directive and on which exchanges of view are
    deemed useful;
(b) to facilitate consultations between Member States on          Unchanged
    the stricter or additional requirements which they
    may lay down in accordance with Article 2, so that
    the requirements imposed in all the Member States
    may finally be brought into line, in accordance with
    Article 54 (3) (g) of the Treaty;
(c) to advise the Commission, if necessary, on any                Unchanged
    additions or amendments to be made to this
    Directive.
                          Article 12                                                   Article 12
1.    Member States shall take the measures necessary to          1.   Unchanged
comply with this Directive not later than 1 January 1991.
They shall forthwith inform the Commission thereof.
2.    Member States shall communicate to the                      2.   Unchanged
Commission the provisions of national law which they
adopt in the field governed by this Directive.
                          Article 13                                                   Article 13
This Directive is addressed to the Member States.                 Unchanged