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 (Presented by the Commission pursuant to the third paragraph of Article 149 of the EEC Treaty)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (87) 422
Vol. 1987/0223
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Conformément au règlement (CEE, Euratom) n° 354/83 du Conseil du 1er février 1983 concernant
l'ouverture au public des archives historiques de la Communauté économique européenne et de
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning
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In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1. Februar
1983 über die Freigabe der historischen Archive der Europäischen Wirtschaftsgemeinschaft und
der Europäischen Atomgemeinschaft (ABI. L 43 vom 15.2.1983, S. 1), zuletzt geändert durch die
Verordnung (EU) Nr. 2015/496 vom 17. März 2015 (ABI. L 79 vom 25.3.2015, S. 1), ist dieser Akt
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Verschlusssachen als herabgestuft angesehen.
 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                             COM(87 ) 422 final
                                             Brussels , 4 September 1987
                           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
           ( Presented by the Commission pursuant to the third
               paragraph of Article 149 of the EEC Treaty )
  C0MC87 ) 422 final
 ---pagebreak---                                                                            ktt-
                                     i
             Ame nded 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
I. Explanatory memorandum
1 . General introduction
1 . On 23 December 1985 the Commission transmitted to the Council a proposai
     for a Directive on information to be published when major holdings in the
                                                                1
     capital of a listed company are acquired or disposed of .
     The proposal is intended to reinforce at Community level the policy of
     providing investors with information .
2 . The Commission proposai has received the support of both the Economie and
     Social Committee and Parliament .
     The Economic and Social     Committee expressed its agreement in principle
     with the broad lines of the Commission proposal in its opinion of 2 July
     1986 . It also stressed that it welcomed the progress being made towards
     the interpenetration of securities markets .
     Parliament has also approved the aim underlying the proposed Directive . It
     has put forward a number of amendments , mostly technical , which constitute
     improvements to the Commission 's wording and can therefore be accepted .
 1
    Document C0M(85)791 of 23.12.1985
    OJ C No 351 , 31.12.1985 , pp. 35-37
 ---pagebreak---                                         3
    However , one of them would not seem to be acceptable . That amendment would
    have the effect of adding the following second paragraph to Article 3 :
    " Where a person disposes of shares in a company as referred to in Article
    1 and where the percentage of subscribed capital disposed of during any
    one-month period exceeds 10 % of the subscribed capital , he shall notify
    the company of the amount disposed of within seven calendar days of that
    threshold being reached ."
    That paragraph would needlessly complicate the information process by
    increasing almost ad infinitum the number of thresholds which trigger the
    obligation to inform the public .
2 . Commentary on the Articles
                                       Article 1
Article 1(1 ) now spécifiés that the Directive applies only to persons who
acquire or dipose of major holdings in a listed company in their capacity as
owners .    The aim of this amendment is to exclude from the scope of the
Directive persons who acquire or dispose of holdings on behalf of another
person ( e.g . banks , nominees , etc. ).
In Article 1 , a third paragraph has been added which amends paragraph 5(c ) of
Schedule C of Directive 79 / 279 / EEC . ^
The main aim of this amendment is to impose on third country companies listed
on one or more Community stock exchanges disclosure obligations which are
similar to those to which companies with head offices in a Community Member
State will be subject once the Directive comes into force .
2
   0J L 66 , 16.3.1979
 ---pagebreak---                                           U
                                       Article 2
The provisions of this Article already appeared in a more general          form in the
original proposal .        The new wording explicitly states that           additional
requirements are to apply generally .
                                       Article 4
The rewording of Article 4 is intended primarily to make its content clearer .
                                       Article 5
The definition of " subsidiary " has been reworded to bring it into line with
that in Article 41 of the Seventh company law Directive .
                                       Article 6
A second paragraph has been added to Article 6 to the effect that companies
belonging to the same group are always presumed to be acting in concert .
                                       Article 7
Member States are permitted to exempt " market makers " from the declaration
provided for in Article 3 . In order to forestall any possible abuse of this
exemption , it has been decided to replace the term " market makers " by a
definition of those persons who may benefit from the exemption .
 3
   Directive 83 / 349 / EEC of 13 June 1983 based on Article 54(3 ) ( g ) of the
   Treaty on consolidated accounts ( OJ L 193 , 18.7.1983 ).
 ---pagebreak--- Article 8 stipulates that a company which has received a declaration referred
to in Article 3 must notify it to the public . Paragraph 2 has been amended to
make it clear that that notification must be made both for voting shares and
for non-voting shares .
Paragraph 3 ,     which stipulates that the information must be made available to
the    public    in  accordance  with   the  rules of   Article  17  of  Directive
79 / 279 / EEC , has  been amended to  incorporate the wording of Article 17 of
Directive 79 / 279 / EEC .
                                      Article 9
The amendment to Article 9 is of a purely formai kind .      It consists of taking
over the terminology used in Directive 79 / 279 / EEC .
                                      Article 10
As in the case of Article 9 , the wording of this Article , which deals with
the designation of competent authorities , has been aligned on the terminology
used in the other Directives adopted in the stock exchange field .
 ---pagebreak---                            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
II . Text of the proposal
                Original proposai                                   Amended proposal
                           THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing         Having regard to the Treaty establishing
the European Economic Community , and in         the European Economic Community , and in
particular Article 54 ( 3 ) ( g ) thereof ,      particular Article 54 thereof .
Having regard to the proposal from the           Unchanged .
Commi ssi on ,
Having regard to the opinion of the               In coopération with the European
European Parliament ,                            Par liament .
Having . regard to the opinion of the            Unchanged .
Economic and Social Committee ,
Recitais                                         Unchanged .
Article 1                                        Article 1
1 . This Directive shall apply to                1 . This Directive shall apply to persons
persons who acquire or dispose of                who as owners acquire or dispose of
major holdings , as defined in Article 3 ,       major holdings , as defined in Article 3
in the subscribed capital of a company            in the subscribed capital of a company
which is incorporated in a Member                which is incorporated in a Member
State and whose shares are officially            State and whose share are officially
listed on a stock exchange situated or            listed on a stock exchange situated or
operating within a Member State .                operating within a Member State .
2 . Where the acquisition or disposal            Unchanged .
of major holdings 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 Dy 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
 ---pagebreak---                                                     information previously published on that
                                                    subject as soon as such changes come to its
                                                    notice .
                                                    In particular , companies which are not
                                                    subject to the provisions of Council
                                                    Pi recti ve_/     / EEC on information to be
                                                    published when major holdings in the capital
                                                    of a listed company are acquired or disposed
                                                    of must inform the publ i c 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               Member States may subject the persons
and companies respectively referred to              and companies referred to in
in Articles 1 and 8 to stricter                     Articles 1 and 8 to stricter
requirements than those provided for                requirements than those provided for
by this Directive , or to additional                by this Directive , or to additional
requirements , provided that they are               requirements , provided that they
generally applicable .                              apply 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              Unchanged ,
shares in a company as referred to in
Article 1 and where, following that
acquisition or disposai , the percentage
of subscribed capital held by that person
in that company reaches or exceeds the
thresholds of 10 % , 20 % , 1 / 3 , 50 % , 2 / 3 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             1 . In order to assess whether a person
acquiring or disposing of holdings is               acquiring or disposing of holdings
required to make the declaration provided           is required to make the declaration
for in Article 3 , account shall be taken           provided for in Article 3 , shares held
of shares held by other persons in their            by other persons in their own name
own name but on behalf of the person                but on behalf of that person shall also
acquiring or disposing of the holdings .            be deemed to belong to that person .
 ---pagebreak---                                             s
2 . Where the person acquiring or           Unchanged .
disposing of 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 ,    1 . For the purposes of this Directive ,
" subsidiary " means any undertaking in     " subsidiary " means any undertaking
in which another undertaking :              in which another undertaking :
( a ) has a majority of the shareholders'   ( a ) has a majority of the shareholders'
      or members' voting rights ;                 or members' voting rights ;
      or                                          or
( b ) has the right to appoint or remove    ( b ) has the right to appoint or remove a
      a majority of the members of the            majority of the members of the
      administrative , management or supei–       administrative , management or super ¬
      visory body and is at the same time         visory body
      a shareholder or member ;                   tsuDsiaiary undertaking )   anr| -¡ ς
                                                  the same time a shareholder in or
                                                  member of that undertaking ;
      or                                          or
( c ) is a shareholder or member and         (c)  is a shareholder or member and con ¬
      controls alone a majority of the            trols alone a majority of the share ¬
      shareholders' or members' voting            holders' or members' voting rights
      rights pursuant to an agreement             pursuant to an agreement entered
      entered into with other shareholders        into with other shareholders or members
      or members of the undertaking               of the subsidiary undertaking .
       ( subsidiary ) .
2 . For the purposes of paragraph 1 , the        Unchanged .
parent undertaking'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  Unchanged .
 persons act in 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
 ---pagebreak---                                           V
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   2 . For the purposes of paragraph 1 ,
persons who have concluded an agreement   " persons acting in concert " means persons
which may lead to their adopting          who have concluded an agreement which may
a common policy in respect of a company . 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 be 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     Member States may exempt from the
or disposals of major holdings made by    déclaration provided for in Article 3
a market maker in the pursuit of his      acquisitions or disposais of major holdings
activity from the declaration provided    made by a dealer in securities who
for in Article 3 .                        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 .
Artide 8                                  Article 8
1 . A company which has received the      Unchanged .
declaration 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 .
2 . Should the percentage of subscribed   2 . Where the subscribed capital of
capital held by the person making         a company is divided int o shares
the declaration provided for in           which carry voting rights and those
Article 5 differ from the percentage      which do not , the company shall
of voting rights actually held by         notify the public where the percentage
that person , the company which has       of either category of shares held by
received the declaration shall notify     a person as a result of acquiring
the public of both percentages .          or disposing of such shares reach
                                          exceed      of the thresh olds specified
                                          in Article 3
 ---pagebreak---                                          -I P-
3 . The information shall be made           3 . The information shall be published
available to the public in accordance       in one or more newspapers distributed
with the rules of Article 17 of             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 di s tributed throughout the Member
                                            State or di striouteu wide[y therein or by other équivalent
                                            means approved by the competent authorities .
                                            The issuers must simultaneously send
                                            such information to the competent
                                            authori ties .
                                            The information referred to in the first subparagraph shall
                                            be published in the official language
                                            or languages , or in one of the
                                            of fi ci al languages or in another
                                             language provided that in the Member
                                            State in question the of fi ci al
                                             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       The competent authorities referred to
in Article 10 may exempt the persons         in Article 10 may exempt the persons
and companies respectively referred to      and companies respectively referred to
in Articles 1 and 8 from the requirement     in Articles 1 and 8 from the
to notify , as defined in Articles 3         requirement to notify , as defined in
and 8 respectively , where those            Articles 3 and 8 respectively , where
authorities consider that the disclosure    those authorities consider that the
of such information would be against        disclosure of such information would be
the public interest or would seriously       contrary to the public interest or
harm those persons or companies ,            seriously detrimental to the i ssuer ,
provided that the absence of such           provided that , in the latter case , such
notification would not mislead the          omission would not be likely to mislead
public in its assessment of the              the public with regard to facts and
shares concerned .                           circumstances , knowledge of 'which is
                                             essential for the assessment of the
                                             securities in question .
 ---pagebreak---                                            -ι * -
Article 10                                     Article 10 .
Member States shall designate the              1 . Member States shall designate the
competent authority or authorities and         competent authority or authorities
shall inform the Commission accordingly ,      for the purposes of this Directive
specifying any division of duties              and shall inform the Commission accordingly ,
between those authorities . They shall ,       specifying , where appropriate , any
moreover , ensure that this Directive          division of duties between those
is applied .                                   authorities . They shall , moreover ,
                                               ensure that this Directive is applied .
2 . Member States shall ensure that the        Unchanged .
competent authorities have such
powers as may be necessary for the
exercise of their duties .
3 . The competent authorities in the           Unchanged .
Member States shall cooperate wherever
necessary for the purpose of carrying
out their duties and shall exchange
any information required for that
purpose .
Article 11                                     Article 11
The Contact Committee set up by                Unchanged .
Article 20 of Directive 79 / 279 / EEC
shall also have as its function :
( a ) to permit regular consultations
      on any practical problems which
      arise from the application of this
      Directive and on which exchanges of
      view are deemed useful y
( b ) to facilitate consultations between      Unchanged .
      Member States on 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 ;
 ---pagebreak---  ( c ) to advise the Commission , if           Unchanged .
       necessary , on any additions or amend ¬
       ments to be made to this Directive .
Article 12                                     Article 12
1 . Member States shall take the measures      Unchanged .
necessary to comply with this Directive
not later than 1 January 1991 . They
shall forthwith inform the Commission
thereof .
2 . Member States shall communicate to         Unchanged .
the 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             Unchanged
Member States .