CELEX: 51988PC0823
Language: en
Date: 1989-02-16
Title: Proposal for a THIRTEENTH COUNCIL DIRECTIVE on Company Law concerning takeover and other general bids (presented by the Commission)

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 ---pagebreak---   COMMISSION OF THE EUROPEAN COMMUNITIES
                                            COM(88 ) 823 final - SYN 186
                                            Brussels , 16 February 1989
                                Proposai for a
                     THIRTEENTH COUNCIL DIRECTIVE
       on Company Law concerning takeover and other general bids
                     ( presented by the Commission )
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 ---pagebreak---                                    Explanatory memorandum
I.   Introduction
1 . In its White Paper programme for removing all remaining internal barriers
in the common market by 1992, the Commission saw a need for harmonizing Member
States' law on takeover bids and announced that it would be bringing forward a
proposal for a directive on this subject .
2 . Takeovers are one of the areas yet to be covered in the programme of
company law coordination directives under Article 54 of the EEC Treaty .            The
aim of the coordination is to afford shareholders and other interested parties
equivalent standards of protection before the law in all Member States .             To
                                                                                      1
date the harmonization has covered requirements relating to disclosure .
                                 2         .3      „    _ _             __ 4
formation     and   capital ,        accounts    and   consolidated     accounts ,  the
qualifications of auditors ,^ and two types of reconstruction or amalgamation,
namely mergers^ ( strictly speaking, " legal mergers” or "assets mergers") and
"ai visions ".^
3 . Takeovers , or " share mergers ",          are however also a common type of
reconstruction or amalgamation of companies .            It is therefore unsatisfactory
that the harmonization legislation should not yet cover this type of financial
operation , which is quite different from legal mergers and divisions .
1      Directive  68/ 151 / EEC , OJ L 65, 14.3.1968 .
2      Directive  77 / 91 / EEC , OJ L 26, 31.1.1977 .
3      Directive  78 / 660/ EEC , OJ L 222 , 14.8.1978 .
4      Directive  83/ 349/ EEC , OJ L 193, 18.7.1983 .
5      Directive  84 / 253/ EEC , OJ L 126, 12.5.1984 .
6      Directive  78/ 855 / EEC , OJ L 295 , 20.10.1978 .
7      Directive 82 / 891 / EEC , OJ L 378, 31.12.1982 .
 ---pagebreak---                                          - 3 -
4 . In a Legal merger , all the assets and liabilities of a company are
transferred to another company and the company being taken over is dissolved ,
without going through the liquidation procedure , and its shareholders issued
with shares in the acquiring company .             Alternatively, the assets and
liabilities of two or more existing companies are transferred to a
newly-formed company and both the original companies dissolved .^
5 . A division differs from a legal merger in that the assets and liabilities
of an existing company , which is subsequently dissolved , are transferred to
several other companies .   Otherwise , the two operations are largely the same .
6 . A takeover or " shares merger ",            although often    commercially and
economically the equivalent of a legal or assets merger ,          is legally quite
different . It does not involve the dissolution of one of the companies or the
transfer of its assets or liabilities to the acquiring company .         The company
whose shares are acquired remains in existence .
7 . Legal mergers between companies from different Member States are not
covered by Directive 78 / 855 / EEC , but only intra-State ones . A proposal for a
Tenth company law Directive to facilitate inter-State legal mergers was sent
to the Council on 14 January 1985,^ and is currently before Parliament .
Takeover bids for companies in other Member States ,         can already be mounted
without difficulty .
8.  Unlike assets mergers ,     which in most European countries have been taking
place since the 1930s ,    if not before,     mergers by takeover are a phenomenon
which has only emerged in the last 25 years and which varies greatly in
frequency from country to country .      This explains why some Member States have
established very detailed rules on the subject while others have made no
1     Articles 3 and 4 of Directive 78 / 855 / EEC .
2     OJ C 23 , 25.1.1985 , p. 11 .
 ---pagebreak---                                        - 4 -
specific provision at all . Takeovers have nevertheless become an increasingly
widely used technique throughout the Community, and one whose importance is
growing with the gradual liberalization of capital markets .
9 . A takeover bid is generally understood to mean an offer made to the
holders of securities carrying voting rights in a company or convertible into
securities carrying such rights ( i.e. , shares , convertible bonds , subscription
rights , options and warrants ) to acquire their securities for a consideration
 in cash or other securities , the purpose of the offer usually being to acquire
control of the company or consolidate the offeror 's existing control ,    and the
offer being made conditional upon sufficient offerees accepting it to achieve
the offeror 's objective .
To guarantee  the equal treatment of all shareholders , the directive fixes a
threshold at  which there is an obligation to launch a takeover bid . Besides ,
in order to    protect minority shareholders and to avoid purely speculative
partial bids  the directive ensures that the offeror must make a bid concerning
all the shares of the company .
10 . To enable the addressees of a takeover or other general bid to make a
properly informed assessment before deciding whether to accept , the offeror
must be required to draw up and bring to their notice an offer document
setting out all the the terms of the bid . The Directive must also specify the
circumstances in which an offer , once formally made to shareholders in this
way , can be withdrawn .    Another essential feature of a takeover bid is the
setting of a closing date for acceptances , which should not , however ,
preclude revisions of the initial offer within certain limits .
As well as the offer document drawn up by the offeror , provision should also
be made for shareholders to receive a report giving the view of the offeree
company 's board on the offer .
11 . Rules to protect the interests of those affected by takeover bids are
unlikely to be effective unless they are policed by an official regulatory
body independent of the parties .       The Directive requires Member States to
 ---pagebreak--- designate such a supervisory authority or authorities .      How this regulatory
system is organized is left to the Member States, • provided the authorities
have the power to effectively police the takeover rules .      The Directive also
lays down a rule for determining the supervisory authority responsible in
cases where bids are launched simultaneously in' several Member States and in
such cases requires the mutual recognition of offer documents .
12 . The Directive secures the protection of shareholders, by, inter alia ,
ensuring that they receive full and substantiated information on the offer,
and by imposing the respect of the fundamental principle of equality of
treatment of those to whom the offer is addressed .     Such persons , especially
when resident in a different Member State than the target company , should be
properly informed of what is going on during a bid and appreciate the
importance of the various steps in the bid procedure . Such shareholders often
have only a small portfolio of shares and little information to go on apart
from the annual accounts of their company and possibly the current stock
exchange price of their shares .    The company making the bid is usually better
informed about the situation of the target company and the value of its shares
than the company 's shareholders , because it has taken the initiative .
The directive ensures a basic level of protection for the addressees of
takeover bids throughout the Community . This does not affect Member States'
right to maintain or introduce more far-reaching or detailed provisions in
their law .
13 . Certain recent events have raised the question whether the directive
should introduce a reciprocity clause towards bidders from third countries .
The need for such a clause has been emphasized by those who say that in
general it is easier for a company from a third country to take control of a
Community company than the opposite .
The situation within the Community is not as open as one may think . Indeed,
company law in several Member States also allows companies to adopt a range of
defensive measures to ensure that control of the company remains in the hands
 ---pagebreak---                                       - 6 -
of friendly shareholders . These defensive measures are very widely used in
some Member States . As a consequence the conditions in which a takeover bid is
carried out vary considerably between Member States .
Against this background, and given the lacunae which exist within the
Community , it would be premature to introduce a reciprocity clause now at
Community level . For the time being and until subsequent harmonisation, Member
States may introduce such a clause into their national law , bearing in mind
their international commitments .
 ---pagebreak--- II .  Article-by -article commentary
Article 1
The scope of the Directive as regards the types of companies covered is
defined by reference to the company whose shares are the subject of the
                                                             #
general bid .
Only public companies limited by shares are covered .
The public companies need not be quoted ;       to restrict the rules to quoted
companies would discriminate between the shareholders of quoted and unquoted
companies by according a higher standard of protection to the former .
However , a number of special rules are laid down for those cases where the
securities of quoted companies are offered to the shareholders of the offeree
company to reflect capital market regulatory requirements .
Thus the obligation to make a bid for all the shares of a company , once a
certain threshold of participation is reached does not depend for application
on whether the target company is quoted on the Stock Exchange or not . The
rules of the directive apply to obligatory bids and also to cases where
someone decides voluntarily to make a bid for the shares of a small or
medium-si2ed company not quoted on the Stock Exchange .
Because there are restrictions in many Member States on the transfer of shares
of private limited companies ,    the Directive does not apply to bids for such
companies .
The characteristic feature of a general bid is that the offer is made on the
same terms to all the holders of voting stock of the company, or instruments
convertible into voting stock , or of a particular class or classes of voting
stock .
 ---pagebreak---                                       - 8 -
Artide 2
The definition of " securities " includes instruments carrying potential voting
rights such as convertible bonds , subscription rights , options and warrants .
Any person or company who launches a bid either on the basis of article 4 or
on a voluntary bais is considered to be an " offeror ". It goes without saying
that if the members of the board of the target company decide to launch a bid
they are to be considered as offerors too . They are subject to all obligations
imposed by this directive .
The term " parties to the bid " is used in the requirement for an expert 's
report in certain cases where the consideration offered includes securities
( Article 14(2 )).   The parties to the bid are the offeror and its agent , the
addressees of the bid and the directors of the offeree company .     The offeror
may be a company or an individual . If it is a company , its directors are also
parties to the bid .
Account must be taken of the fact that      in a takeover bid the offeror often
does not act alone but in concert with others . " Persons acting in concert " are
defined as persons who , pursuant to an agreement , cooperate with one another
to acquire a company 's securities .
Article 3
The directive lays down in this article a fundamental principle of company
law , that of equal treatment of shareholders who are in the same position . The
text also contains provisions which apply this principle to individual
situations, for example article 4 (obligation to make a bid ), and article 16
( automatic revision ).
 ---pagebreak---                                        - 9 -
Artide 4
So that the principle of equal treatment of shareholders cited in Article 3
may be respected, the directive requires an offer to be made by persons
wishing to acquire shares , which , when added to any existing holdings , give
them a percentage of voting rights which Member States may not fix at less
than one third .
To avoid purely speculative partial bids , the directive obliges the offeror to
make a bid concerning all the shares in the company . This also has the aim of
preventing shareholders suffering a loss caused by the reduction in value of
the shares they continue to own after a partial bid .
For the purpose of the obligation imposed by this Article ,    the voting rights
held by certain persons connected with the offeror must be added to those held
by the offeror himself . These are on the one hand persons acting in their own
name but on behalf of the offeror and on the other hand persons acting in
concert with the offeror .   Where the offeror is a company the voting rights
held by companies belonging to the same group of companies as the offeror
within the meaning of article 1 of the Directive 83/ 349 / CEE on consolidated
accounts and those held by the members of         the management body of these
companies must also be taken into account .
The threshold of one third is that from which the offeror may exercise a
blocking minority . Indeed , numerous important decisions which , within a
company , must be taken by the general meeting of shareholders, require at
least a majority of two-thirds of the votes attached to the securities
represented . This is the level used in community legislation to limit or
suppress the right of preferential subscription for cases of increase of
capital , for the reduction of capital , for the total or partial writing-off of
capital ^ and for operations such as mergers^ or scissions^.
In certain cases the obligation to launch a bid as set out in paragraph 1 of
this Article could lead to undesirable results .
1     Cf. Art . 40 of the Directive 77 / 91 / EEC
2     Cf. Art . 7 of the Directive 78 / 855 / EEC
3     Cf. Art . 5 of the Directive 82 / 891 / EEC
 ---pagebreak---                                          - 10 -
 for example ,     it would be exaggerated to impose this obligation on those who
 reach the required threshold in 'an accidental manner ( from donations ,
 inheritance , etc .). A bid could be incompatible with the interests of
 shareholders or even with the objectives of the directive .       That is why the
 supervisory authority may grant exemptions to this obligation .       It must give
 the reasons for its decision and adopt all measures necessary to ensure equal
 treatment of all shareholders .
 Article 5
 The obligation described in Article A could ^resul t^ excessive ^ if the company
concerned is small or medium-sized . These are normally companies for which the
obligations imposed by the offeror could lead to disproportionate costs by
 reference to the size and the value of the target company .      Thus ,  when this
company is small or medium-sized as defined in Article 2? of Directive
 78 / 660 / EEC on annual accounts or when it belongs to a group of undertakings
which do not exceed the limits established by that article,' and it is not
quoted on the Stock Exchange ,      the offeror is exempt from the requirement to
make a bid . If the offeror decides to make a bid anyway ,      it must be made in
accordance with the requirements of the directive .
Article 6
Member States are required to designate a supervisory authority or authorities
to monitor compliance with the rules by all bid parties and must inform the
Commission of their arrangements , including the division of responsibilities
between the authorities if several bodies have regulatory functions in the
area .
The Directive leaves it to Member States whether a public or private or a
nationally or regionally organized body is designated and how the authority
operates , provided it has the necessary powers to effectively police the
system and see that the Directive is respected . In this respect , the authority
( or authorities ) must have in every case either the power to forbid the
publication of an offer document which         is incomplete by reference to the
requirements of the directive ,      or the power to oblige the offeror to revise
such a document at a later date .
 ---pagebreak---                                          - 11
It is necessary to specify which Member State 's authority is responsible for
policing cross-frontier bids . This responsibility Cin particular, for
supervising the content and notification to shareholders of the offer
document ) is assigned to the authority of the Member State in which the
offeree company has its registered office .              Where a bid is launched
simultaneously in several Member States , the Directive requires authorities to
recognize offer docume - ‘s drawn up under each other 's supervision , as in the
rules on listing particulars .
After the offer document has been published or otherwise brought to the notice
of shareholders , the authorities of the various Member States concerned are
required to assist one another in performing their duties and for this purpose
to supply one another with all necessary information .
To avoid the creation of false markets in securities concerned in takeover
bids ,   it is provided that all current or former officers or servants of
supervisory authorities must be bound to strict confidentiality regarding
information coming to their knowledge in the course of their professional
duties and must not disclose such          information to any person or body not
legally entitled to receive it .
The liability position of supervisory authorities is to be governed by their
national law .
Article 7
Article 7 is based on the principle that information capable of having an
influence on the market in the securities concerned should be made public as
soon as possible to reduce the scope for insider dealing .      Hence , as soon as
the offeror decides to make the bid , even though the details might not have
been fully worked out , it must announce its intention to all the intended
addressees by one of the means provided for by the Directive for notifying the
offer document to them ( Article 11 ).        It must then immediately prepare an
offer document meeting the requirements of Article 10 in order to inform the
addressees of the exact terms of the offer .
1      Directive 87/ 345 / EEC , 0J L 185, 4.7.1987, p. 81 .
                                                                  i
 ---pagebreak---                                         - 12 -
However the offeror must take certain steps before the publication of the
offer document . He must         forward the offer document to the supervisory
authority and to the board of the offeree company .
Article 8
The administrative or management body of the offeree company must at all times
act in the interests of the company . Unless the general meeting authorizes it
to do so, therefore, it would be prohibited from impeding the bid by issuing
new securities carrying voting rights in the offeree company , or deciding to
engage in operations of an exceptional nature which might cause a substantial
 loss of the company 's assets . In this connection , operations of an exceptional
nature are considered to be those which are not carried out in the normal
course of the company 's business or not in conformity with normal market
practice .
This ban   would take   effect when the offeror informs the administrative or
management body of the offeree company that he intends to make a bid ( Article
7(1 )), and would last until the period for acceptance has expired .
Article 9
To ensure that offerors fully comply with the rules , they are required to be
represented by a licensed dealer in securities or a financial institution
authorised to act within the Community, which are subject to codes of practice
in their activities as advisers in takeover bids and will thus help to ensure
that the rules are observed and that shareholders are properly protected .
Article 10
This Article sets out the minimum content of the offer document .
The document must first identify the offeree company and the offeror and its
agent .
 ---pagebreak---                                       - 13 -
It must also state the securities or class or classes of securities for which
the bid is made and the holdings of such securities already in the possession
of the offeror or its associates and the voting rights attached to the
securities already held .   The associates whose holdings must be disclosed are
persons acting in their own name but for the account of the offeror , persons
acting   in concert with the offeror, and, where the offeror is a company, its
directors and any companies belonging to the same group for the purposes of
Article 1 of the consolidated accounts Directive 83 / 349 / EEC .    The date and
price ( or other considerations ) at which such shareholdings were acquired must
also be stated in the offer document .      Where the offeror is a company , any
stakes held by the offeree company in the offeror must be similarly disclosed .
The offer document must state the consideration offered for each security and
the basis of the valuation used in calculating it and , where the offer is for
cash or includes a cash element , provide guarantees of the offeror 's ability
to meet the financial obligations resulting from the bid . If the offeror
finances the bid by any means that might cause debts to the target company he
has to state this clearly in the offer document and specify the importance of
this future indebtedness .
In the case of a share ( or mixed cash and share ) offer , the document must also
state from what date the shares offered will become entitled to a dividend .
The offer may be made subject to conditions approved by the responsible
supervisory authority . These , too , must be stated in the offer document .
The closing date for acceptances must be given within the limits laid down in
Article 12 .
The offeror must say what steps have to be taken by shareholders wishing to
accept the bid in order to signify their acceptance and to receive the
offeror 's consideration for the shares they transfer to it .
In the interest of all parties to the bid and taking into account the social
policy of the Commission , it seems indispensable to make clear in the offer
document the intentions of the offeror concerning the future of the offeree
company , especially as regards its activities , including the use of its assets
but also as regards its management and staff .
 ---pagebreak---                                           - 14 -
  The offeror must also disclose any special advantages it intends to grant to
  the directors of the offeree company and any agreements concerning exercise of
y
  the voting rights attached to the shares of the offeree company .
   Finally,    the offer document must identify all the offeror 's associates and
  persons acting in concert with it in the bid , as specified above .
   The Directive will not prevent regulatory authorities requiring additional
   items   of  information  to  be   included  in the offer  document where  it  is
   necessary in the particular circumstances of the case that shareholders should
  beade aware of them .
  The Directive requires that ,          where the offer includes newly issued
  securitiesfor which an official stock exchange listing has been applied for,
  the offer document must be accompanied by the listing particulars required by
  Council Directive 80/ 390 / EEC .   Thus the recipients of the offer will receive
   full disclosure concerning the shares which are being offered to them .
  With the same objective in mind, where no official stock exchange listing has
  yet been applied for securities offered in exchange, the Directive seeks to
  guarantee offerees adequate information by requiring that the offer document
  must put the offerees in possession of all the facts necessary to make an
  informed judgment of the issuer 's assets and liabilities , financial position,
  record and prospects .
  Article 11 •
  Shareholders must be given an opportunity to acquaint themselves with the bid
  terms .
  The offer document , and if appropriate the listing particulars or equivalent
  of securities offered in exchange, therefore need to be brought to their
  attention .
  1       OJ L 100, 17.4.1980, p. 1 .
 ---pagebreak---                                       - 15 -
This may be done in a number of ways . The offer document and any accompanying
documents may be published in full in one or more national or mass-circulation
newspapers and in the official gazette designated under Article 3(4 ) of
Directive 68 / 151 / EEC .  Alternatively , the offeror may announce in the
newspapers and the official gazette, or in some other medium approved by the
supervisory authority , that the documents are available at stated addresses .
Where all the securities comprised in the bid are registered , the offeror may
also circulate the offer document and any accompanying documents to all the
addressees individually .
The offeror is required to file a copy of the documents with the supervisory
authority so that it can carry out its duties with regard to the takeover
rules .
Article 12
The directive sets out time-limits within which the offeror may fix the period
for accepting the offer which may not be less than four weeks or more than
ten , from the date of publication of the offer document .
On one hand , the period should be sufficiently long to allow offerees to
obtain information concerning the conditions of the offer and to consult the
report of the board of the offeree company . On the other hand , taking into
account the limitations imposed by Article 8, the target company should not
be prevented from carrying out its normal activities for too long a period .
Unless authorisation on the basis of a reasoned decision is given by the
supervisory authority , the acceptance delay may only be changed unless a rival
bid is launched .
Article 13
To allow the offeror to withdraw a bid once the offer document has been
brought to the notice of the shareholders by one of the means provided for in
the Directive would be to sanction abuse of the takeover process . The offeree
 ---pagebreak---                                      - 16 -
company and its shareholders must be protected against bids made for purposes
other than the acquisition of control or a significant proportion of the
voting rights in the company .
There are several other circumstances       in which withdrawal   is permitted .
First ,    the bid may be withdrawn in accordance with Article 20(4 ) if a
competing bid is made .
Withdrawal of the bid is also permitted if the approval of the general meeting
of the offeror company is not obtained for the issue of new securities offered
in exchange for the securities bid for or if the securities offered in
exchange fail to obtain an official stock exchange listing as the offeror
intended .
Another case in which a bid may be withdrawn is where the requisite judicial
or administrative authorization for acquisition of the shareholding is
refused .     A typical example would be prohibition of the operation by the
merger control authorities .
The offeror may also withdraw the bid if a condition of the bid approved by
the supervisory authority is not met .
In wholly exceptional cases , when the offer cannot be made for reasons of
force majeure the supervisory authority may authorize the withdrawal of that
offer on the basis of a reasoned decision .
The withdrawal of the bid must be notified to the original addressees by the
same means as the offer document and to the supervisory authority .
Article 14
The board of the offeree company is required to give its view of the bid in a
report setting oat , in particular, the arguments for and against acceptance .
Takeover bids are not always contested by the target company 's management ;
indeed in many cases the latter has negotiated the takeover and its terms with
the offeror .    In the case of friendly takeovers of this kind,    such matters
 ---pagebreak--- should not be concealed from shareholders but should be made clear in the
report of the target company 's board .      The report should also specify any
agreements between the offeree company 's management and the offeror on the
exercise of voting rights attached to the target company’s shares .
In drawing up its report ,   the board is of course under a duty to act in the
best interests of the offeree company .
Where the consideration offered in the bid includes securities for which at
the time of the bid no official stock exchange listing has been applied for,
the board 's report is required to be accompanied by the report of an expert
independent of the bid parties appointed or approved by the supervisory
authority .  In his "report the expert must state whether, in his opinion , the
consideration offered is fair and reasonable and give his views on the basis
of the valuation used to determine the consideration .        The purpose is to give
the target company 's shareholders an independent assessment of the share
exchange ratio proposed, as in the experts' reports on the proposed terms of
assets mergers under Article 10 of Directive 78 / 855 / EEC .
The report of the target company 's board and the expert 's report , if required,
must be notified to the addressees of the bid by the same means as the offer
                                                                                   1
document before the expiry of the period for acceptance and filed with the
supervisory authority .   Where the bid is " friendly ", there is no objective to
the offer document and the report of the offeree company 's board being
published or otherwise notified to shareholders together .
Where there are competing bids or revised          bids    it    is clear that the
management of the target company        should give its reaction to them and
accordingly they are subject to the same rules as original bids .
Article 15
The Directive allows the offeror to revise the terms of the bid any time up to
one week before the expiry of the period for acceptance . This limitation is
necessary to maintain an orderly market in the shares and to ensure that the
addressees are informed of the revised terms in time . Indeed, the offeror may
not revise the offer during the last week of the acceptance period unless he
 ---pagebreak---                                      - 18 -
is authorised to do so by the supervisory authority on the basis of a reasoned
opinion . To give addressees enough .time to consider the new terms of the
offer , however , it is provided that the initial period for acceptance must be
extended by one week in that case . This can be modified by the supervisory
authority on the basis of a reasoned decision .
No definition of " revision" is given .     Consequently , a revision does not
necessarily have to raise the cash price or share exchange ratio . Determining
whether the terms of a new offer are better than those of the original one is
often more difficult than comparing absolute prices or ratios ,- especially for
share exchange or mixed cash and share offers .
As with the initial offer, the offeror must be required to make an immediate
public announcement of its intention and then to notify shareholders of the
new terms .  The view of the offeree company 's board on the amended offer must
be similarly publicized and the revised bid terms and the board 's report filed
with the supervisory authority .
The principle of equality of treatment of all addressees of the bid must be
upheld by requiring that all shareholders who have already accepted the
previous offer may accept the revised bid instead .
Article 16
An irrefutable presumption of revision of the offer takes place in all cases
where the offeror, persons acting in concert with him or persons acting in
their own name but on behalf of the offeror buy during the acceptance period
shares which are the subject of the offer at a higher price than that laid
down in the offer document or one of      its revisions .   The effect of these
acquisitions is the increase of the consideration for offers already accepted .
In this way , once again, the principle of equality of treatment is respected .
 ---pagebreak---                                         19 -
Article 17
This Article is intended to ensure that the regulatory authorities are kept
informed   of  the  progress of   the bid    so that  they can exercise their
supervisory functions .
Throughout the period for acceptance of the bid the offeror should be required
to inform the supervisory authority at any time, on request , of the number of
acceptances received to date .
 Furthermore , from the time the bid is publicly announced the supervisory
authority should be informed of all further acquisitions of securities
concerned in the bid by holders of 1% or more of the voting rights in the
companies concerned or persons acting in concert with them or for their
account , and the price at which the securities were acquired . The obligation
 laid down in this paragraph is particularly important because it permits the
presumption of a revision laid down in Article 16 to operate .
Artide 18
All parties should be properly informed of the outcome of the bid . For this
purpose it is required that the result should be brought to the notice of the
shareholders to whom the bid was addressed by one of the means required for
notification   of  the  offer  document   and  should  be  communicated to  the
supervisory authority . In this way the offeror will have to make public such
information as the number of acceptances , the voting rights attached to the
securities transferred to it by acceptors ,    and whether the objective of the
bid was achieved or the bid was withdrawn .
Article 19
One of the fundamental objectives of this Directive is to inform those chiefly
concerned by the operation of its consequences . Among the persons mainly
concerned are the employees of the target company for whom the operation may
have serious repercussions . This article imposes on the administrative or
management body of the target company the obligation to communicate to
 ---pagebreak---                                       - 20 -
employees' representatives the documents concerning the bid .             These
representatives thus have access to the offer document and to the documents
foreseen in Article 10 paragraphs 3 and 4 for takeover bids where shares are
offered in consideration as well as to the report of the management of the
target company and, where appropriate , to the experts' report foreseen in
Article 14 paragraph 2 .
Article 20
The takeover rules should not stand in the way of competing bids , which are in
the interest of the target company 's shareholders .
All bids in competition with a bid already made must comply with the same
rules as the initial bid as regards procedure , the content and notification to
shareholders of the offer document and the report of the offeree company 's
board , the period for acceptance and revision of the bid .
To maintain an orderly market in the shares and to ensure that shareholders
are informed in time , the competing offeror must be required to notify its
offer document to the addressees before the period for acceptance of the
initial bid expires .
The Directive does not allow competing bids from persons acting in concert
with the original offeror or acting in their own name but for its account ,
except with the permission of the supervisory authority . This provision is
intended to avoid a proliferation of bids that are competitive in name only ,
while allowing the supervisory authority to depart from this principle where
the shareholders' interest requires .
The original offeror may withdraw his bid in the face of a competing one . If
it does not , the period for acceptance of its bid is extended to the date of
expiry of that of the competing bid . The extension must be notified to
shareholders in the usual way and to the supervisory authority .
 ---pagebreak---                                        - 21
Artide 21
The policing of the takeover rules by regulatory authorities in different
Member States , and the possible delegation of some functions to other bodies ,
may give rise to problems . For this reason it is proposed to set up a contact
committee to advise the Commission in three areas : firstly uniform application
of the rules , for which regular consultations will be held , secondly to bring
together the strategies followed by Member States seeking to obtain
reciprocity of treatment for Community companies and nationals as regards the
purchase of shares of a company by means of a takeover - bid , thirdly, changes
in the   rules .  The committee formula is modelled on that     in the accounts
Directive 78/660/ EEC . ^
1     Article 52 of directive 78 / 660 / EEC
 ---pagebreak---                                    - 22 -
                              Proposai for a
                       THIRTEENTH COUNCIL DIRECTIVE
         on Company Law concerning takeover and other general bids
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing the European Economic Community , and
in particular Article 54 thereof .
Having regard to the proposal from the Commission,
In cooperation with the European Parliament ,
Having regard to the opinion of the Economic and Social Committee ,
Whereas  it is necessary to coordinate certain safeguards which Member States
require of companies and firms within the meaning of the second paragraph of
Article 58 of the Treaty for the protection of members and others ,   in order
to make such safeguards equivalent throughout the Community ;
Whereas it is necessary to protect the interests of the shareholders of public
companies limited by shares when these are the subject of a takeover or other
general bid;
Whereas shareholders who are in the same position should be treated  equally ;
Whereas this equality of treatment requires that the obligation to make a bid
is imposed on persons wishing to attain a certain level of participation in a
company and in order to ensure the protection of minority shareholders and to
avoid purely speculative partial bids , it is necessary to require that these
persons make a bid for all the shares of that company;
Whereas each Member    State should designate a supervisory authority or
authorities to ensure that parties to a takeover or other general bid fulfil
their obligations; and whereas it is necessary to determine which authority
has territorial jurisdiction in the case of cross-frontier bids and to provide
for the mutual recognition of offer documents within the Community ; whereas
the different authorities must cooperate with one another and their present or
former officers and servants should be bound to preserve confidentiality ;
 ---pagebreak---                                       - 23 -
Whereas to reduce the scope for insider dealing offerors should be required to
announce their intention of launching a bid as soon as possible and to inform
the supervisory authority and the offeree company 's board of the precise terms
of the bid before they are made public ;
Whereas to avoid operations which frustrate the bid it is necessary to limit
the powers of the board of directors of the offeree company to engage in
operations of an exceptional nature ;
Whereas to help ensure compliance with the obligations resulting from the
Directive it should be compulsory for offerors to be represented by a person
or credit institution licensed to deal on the financial markets ;
Whereas the addressees of a takeover or other general bid should be properly
informed of the terms of the bid by means of an offer document and , where the
consideration offered includes securities , should be provided with certain
additional information about the company issuing those securities ;
Whereas the offeror should be required to bring the offer document to the
attention of all addressees of the bid and where the offer document contains
insufficient information to clarify the real intentions of the offeror , the
supervisory authority should be able either to forbid the publication of the
offer document or to make the offeror publish a revised document ;
Whereas it is necessary to set a time-limit for takeover bids ;
Whereas, in the interests of the offeree company and the addressees of the bid,
it should be provided that once an offer document has been made public the bid
may not be withdrawn except in certain specified circumstances ;
Whereas the board of the offeree company should be required to report in
writing to its shareholders its view of the bid , and whereas where the
consideration offered in the bid includes securities for which at the time the
bid is made no official stock exchange listing has been applied for it should
also be required to obtain and make available to all addressees of the bid an
additional report by an independent expert ;
 ---pagebreak---                                     - 24
Whereas offerors are entitled to revise their bids ;    whereas limits should be
placed on that right in order to maintain an orderly market in the shares and
it should be ensured that the addressees of the bid are informed in time ; whereas
it is necessary that the offeror draw up and make public a fresh document
setting out the amendments to the original bid and whereas addressees who have
already accepted the bid should be entitled to accept the revised bid ;
Whereas in order to ensure equal treatment of addressees of the bid ,          any
acquisition by the offeror, or by certain persons associated with him, of
shares which are the subject of the bid at a higher price than that laid down
in the offer document or one of its revisions ,  must itself be considered as a
revision ;
Whereas to be able to perform their functions satisfactorily ,         supervisory
authorities need to be able to find out at any time how many acceptances have
been received to date and whereas , from the time the intention to make a bid
is announced by the offeror , any dealing in the securities concerned must be
made public by any person already having a significant shareholding ;
Whereas the result of    the bid must be made public        and notified to the
supervisory authority ;
Whereas taking into account the social policy of the Community ,            it is
necessary that representatives of the employees of the offeree company be
informed with regard to the bid and that they should receive all the documents
concerning that bid ;
Whereas competing bids for the securities of a company are necessarily to the
advantage of its shareholders ; whereas all such bids should be subject to the
same rules as the original bid and the original offeror should be entitled to
withdraw his bid in such a case ;
Whereas this Directive does not until     subsequent coordination affect the
capacity of Member States to forbid a takeover or other general bid where the
offeror is either a national or a company from a third country , in particular
where Community nationals and companies do not benefit from reciprocal
treatment as regards the acquisition of shares by means of such a bid in a
company governed by the law of that third country,
 ---pagebreak---                                            - 25 -
 HAS ADOPTED THIS DIRECTIVE :
                                        Article 1
                                          ( Scope )
 The coordination measures prescribed by this Directive shall apply to the
 laws , regulations and administrative provisions of the Member States relating
 to takeover and other general bids addressed, on the same terms , to all
 holders of the securities , or the securities of a particular class or classes ,
 of any of the following types of company :
- in Germany :
   die Aktiengesellschaft , die Kommanditgesellschaft auf Aktien,
- in Belgium :
   la société anonyme / de naamloze vennootschap,   la société en commandite par
   actions / de commanditaire vennootschap op aandelen .
- in Denmark :
   aktieselskaber , kommandi takt i esel skaber ,
- in Spain :
   la sociedad anónima , la sociedad en comandita por acciones .
- in France :
   la société anonyme, la société en commandite par actions.
- in Greece :
    Η ανώνυμη εταιρία, η ετερόρρυθμη κατά μετοχές εταιρία.
- in Ireland :
   the public company    limited by shares.
 ---pagebreak---                                         - 26 -
 - in Italy :
   la società per azioni , la società in accomandita per azioni ,
 - in Luxembourg :
   la société anonyme, la société en commandite par actions ,
 - in the Netherlands :
   de naamloze vennootschap .
 - in Portugal :
   sociedade anónima , sociedade em comandita por accoes ,
 - in the United Kingdom :
   the public company limited by shares .
                                      Article 2
                                   ( Definitions )
1 . For the purposes of this Directive, "offeree company " shall mean a company
whose securities are the subject of a takeover or other general bid
( hereinafter referred to as "a bid ").
2.    For the purposes of this Directive, "offeror " shall mean any person or
company including , where appropriate , the directors of the offeree company ,
who launches a bid in accordance with the obligation set out in Article A or
on a voluntary basis .
3 . For the purposes of this Directive , " securities " shall mean securities
carrying voting rights in a company or which can be converted into securities
carrying such rights .
 ---pagebreak---                                         - 27 -
4 . For the purposes of this Directive, "parties to the bid" shall mean the
offeror, the representative of the afferor within the meaning of Article 9,
the directors of the offeror , if the latter is a company, the addressees of
the bid and the directors of the offeree company .
5 . For the purposes c this Directive , "persons acting in concert " shall mean
persons who , pursuant to an agreement , cooperate with one another with the aim
of acquiring the securities of a company .
                                      Article 3
                                 ( Equal treatment )
Shareholders who are in the same position shall be treated equally .
                                      Article 4
                           ( Obligation to make a bid )
1 . Any person aiming to acquire a number or percentage of securities , which ,
added to any existing holdings, gives him a percentage of the voting rights in
a company which may not be fixed at more than 33 1 / 3%, shall be obliged to
make a bid to acquire all the securities of that company .
2.    To calculate the threshold referred to in paragraph 1 ,      the following
must be added to the voting rights held by the offeror :
(a )  voting rights held by persons acting in their own name but on behalf of
      the offeror ;
 ---pagebreak---                                        - 28 -
 Cb)   where appropriate , • voting rights held by companies belonging with the
        offeror to the same group of- undertakings within the meaning of
        Article 1 of Council Directive 83/349/EEC^;
 (c)    voting rights held by persons acting in concert with the offeror;
 (d)    where appropriate ,    voting rights held by directors of the offeror
        company .
 3 . The supervisory authority may grant exemptions to the rule laid down in
 paragraph 1 , giving reasons for its decision and adopting all measures
necessary to ensure equal treatment of all shareholders .
                                      Article 5
             ( Exemptions on the basis of size of the offeree company )
Article 4 shall not apply :
 (a)   where the securities of the offeree company have not been admitted to
       official stock exchange listing or have not been the subject of a
       request for such admission at the moment when the bid is announced in
       accordance with Article 7 , and
 ( b)  where the offeree company, or , where appropriate , the group of
       undertakings within the meaning of Article 1 of Directive 83 / 349 / EEC to
       which the company belongs , do not exceed , at the balance-sheet date , the
       amounts of two of the three criteria laid down in Article 27 of Council
       Directive 78/660/EEC ^ .
1      OJ No L 193 of 18.7.1983 , p. 1
2      OJ No L 222 of 14.8.1978 p. 11
 ---pagebreak---                                  Article 6
                         ( Supervisory authority )
1.     Member States shall designate the authority or authorities which
must discharge the „ functions specified in this Directive .           The
authorities thus designated may delegate all or part of their powers to
other authorities or to associations or private bodies .    Member States
shall inform the Commission of these designations and of any delegation
of powers and shall specify all divisions of functions that may be made .
   -                                '‘                1
2.     The authorities and , where appropriate, the associations or
private bodies referred to in paragraph 1     must have all the necessary
powers to ensure that this Directive is put into effect and , in any
case , either the power to forbid the publication of an offer document
which is incomplete by reference to the requirements of this Directive
or the power to oblige the offeror to correct an inadequate offer
document and to make it public by the means set out in Article 11 ( 1 ).
3.     The authority competent for supervising the drawing-up and
publication of the offer document shall be that of the Member State in
which the offeree company has its registered office . Where the bid is
made in several Member States simultaneously , the offer document as
prepared under the supervision of the national authority responsible
shall be accepted in the other Member States , without their supervisory
authorities having the right to require the inclusion of any additional
particulars in the document .
4.    After an offer document has been made public in accordance with
Article 11 ( 1 ), the competent authorities of the Member States shall
give each other any cooperation required for the performance of their
duties and for this purpose shall supply each other with any information
that may be necessary .
 ---pagebreak---                                   - 30 -
5.       All present . or former officers or servants of supervisory
authorities shall be bound by. the rules of professional secrecy .
 Information that has come to their knowledge in the course of performing
 their professional duties shall not be disclosed to any person or body
not legally entitled to receive it .
6.       This Directive shall not affect the legislation of Member States
concerning the liability of competent authorities .
                                    Article 7
            ( Procedure prior to publication of the offer document )
1.      As soon as it decides to make a bid , the offeror shall make public
its intention of doing so by one of the means provided for in Article
11 ( 1 ).        It shall inform the competent supervisory authority
accordingly .
2.      The offeror shall then immediately draw up an offer document in
accordance with Article 10 and make it public in accordance with Article
11 ( 1 ).
3.      Before the offer document is made public , the offeror shall
communicate it to the competent supervisory authority and to the board
of the offeree company .
 ---pagebreak---                                     - 31
                                      Article 8
                 ( Restriction of the powers of the board
                             of the offeree company )
After receiving the information referred to in Article 7 ( 1 ) and until
the expiry of the period for accepting the bid, the board of the offeree ,
company shall no^ without the authorization of the general meeting of
shareholders , decide :
(a)   to issue securities carrying voting rights          or which may be
      converted into such securities ;
( b)  to engage in transactions which do not have the character of
      current operations concluded under normal conditions unless the
      competent supervisory authority has authorized them, giving its
      reasons for such authorization .
                                      Article 9
                        ( Representative of the offeror )
The offeror shall be represented either by a qualified person authorized
to deal on the Community financial markets or by a credit institution
authorized within the Community .
                                     Article 10
                                 ( Offer document )
                                                                           >
1.    The offeror shall draw up an offer document in respect of the bid
stating at least :
 ---pagebreak---                                     - 32 -
 (a )     the type, name and registered office of the offeree company ;
 Cb)      the name and address of the offeror or, where the offeror is a
          company , the type , name and registered office of that company ;
 (c)      the name and address or, where appropriate, name and registered
          office of the representative of the offeror referred           to in
          Article 9 ,
 (d )     the securities o < class or classes of securities for which the bid
          is made ;
 (e)      the securities , or the securities of the relevant class or
          classes , already held by :
 ( aa )   the offeror .
 ( bb )  other persons for the account of the offeror ,
 ( cc )   companies belonging with the offeror to the same           group of
         undertakings within the meaning of Article 1 of             Directive
         83 /349 / EEC ,
  ( dd ) persons acting in concert with the offeror ,
( ee )   where the offeror is a company , its directors ,
         and the voting rights attached to those securities and the date
         and the price at which they were acquired ;
(f)      where the offeror is a company , the securities , or the securities
         of a particular class or classes , of the offeror held by the
         offeree company , and the voting rights attached to them and the
         date and the price at which they were acquired ;
(g)      the consideration offered for each security and the basis of the
         valuation used in determining it and, in the case of a cash
         consideration, the guarantees provided by the offeror regarding
         payment of that consideration, and , where appropriate, a statement
         concerning any future indebtedness of the offeree company to
         finance the bid ;
 ---pagebreak---                                 - 33 -
 (h ) where the consideration comprises securities ,, the date from which
      those securities will entitle their holders to a share in the
      profits and any special conditions affecting that entitlement ;
 <i)  any condition authorized by the competent supervisory authority
      which the offeror places on the bid ;
 (j ) the latest date on which the bid may be accepted;
(k)   the steps to be taken by the addressees of the bid in order to
      signify their acceptance and to receive the consideration for the
      securities which they transfer to the offeror ;
(l)   the intentions of the offeror, explicitly expressed , regarding the
      continuation of the business of the offeree company , including the
      use of its assets , the composition of its board and its employees ;
(m)   any special advantages which the offeror intends to grant to the
      directors of the offeree company ;
(n)   all agreements    concerning the   exercise of    the voting rights
      attached to the securities of the offeree company .
2.    In addition , the offer document shall identify :
( a)  any person for whose account the offeror is acting;
( b)  any companies belonging with the offeror to the same group of
      undertakings within the meaning of Article 1 of Directive
      83 / 349/ EEC ;
 ---pagebreak---                                       - 34 -
     (c)    any person acting in concert with the offeror .
     3.     Where the consideration offered includes newly-issued securities
     for which at the time of the bid an official stock exchange listing has
     been applied for , the offer document shall be accompanied by the listing
     particulars required by Council Oirective 80/390/EEC . ^
     4.     Where the consideration offered includes securities for which at
     the time of the bid no official stock exchange listing has been applied
     for,   the offer document shall contain all the facts necessary to enable
     the addressees of the bid to form an informed judgment as to the assets
     and liabilities , financial position , record and prospects of the issuer .
                                       Article 11
                         ( Publication of the offer document )
    1.     The offer document and ,   where appropriate, the documents required
    by Article 10(3 ) or ( 4 ) shall be either :
    (a)    published in full in one or more national or mass-circulation
           newspapers and in the national gazette designated under Article
           3(4) of Council Directive 68/151 /6EC,^ or
    ( b)  made available to the addressees of the bid at addresses announced
           in notices in the newspapers and the gazette referred to at (a ) or
          by equivalent means approved by the competent supervisory
          authority, or
   (c)    where all the securities comprised in the bid are registered ,
          circulated to all addressees of the bid .
 1 0J L 100, 17.4.1980, p. 1
2  0J L 65 ,     14.3.1968, p. 8
 ---pagebreak---                                      - 35 -
2.     The offer document and ,       where appropriate , the documents referred
 to in Article 10 ( 3 )   and ( 4)      shall also be filed with the competent
 supervisory authority .
                                      Article 12
                            ( Period for acceptance )
1.     The period for accepting the bid indicated in the offer document
in accordance with Article 10 ( 1 ) ( j ) may not be less than four weeks or
more than ten weeks       from the date of publication of the document in
accordance with Article 11       ( 1 ).
2.     The period may not be modified without the authorization of the
supervisory authority, giving its reasons, without prejudice to Article
20 .
                                      Article 13
                              ( Withdrawal of bids )
1.    Once a bid has been made public by the means provided for in
Article 11 ( 1 ), it may be withdrawn only in the following circumstances :
(a)   where there are competing bids and the offeror decides to withdraw
      his bid in accordance with Article 20 ( 4);
( b)  in a bid in which new securities are offered in exchange for the
      securities bid for, where the approval of the general meeting of
      the offeror company is not obtained for the issue of the new
      securities ;
 ---pagebreak---                                    - 36 -
  (c)    in a bid in which securities are offered in exchange for the
        securities bid for, where the securities fait to obtain an
        official stock exchange listing as the offeror intended;
  (d)   where the necessary judicial or administrative authorization is
        not obtained for the acquisition of the securities for which the
        bid is made, and in particular in the event of lack of
        authorization of the acquisition by the merger control
        authorities ;
  (e)   where a condition of the bid announced in the offer document in
        accordance with Article 10 ( 1)(i ) and approved by the competent
        supervisory authority is not fulfilled ;
 ( f)   in exceptional circumstances and with the authorization of the
        supervisory authority , giving reasons , where the bid cannot be put
        into effect for reasons beyond the control of the parties to the
       bid .
                                          \             ...              •
 2.    The withdrawal of the bid shall be made public by the means
 provided for in Article 11 ( 1 ) and communicated to the competent
 supervisory authority .
                                   Article 14
                     ( Report of board of offeree company)
1.     The board of the offeree company shall draw up a detailed report
giving its views on the bid and setting out the arguments for and
against acceptance .      The report shall state whether the board is in
agreement with the offeror on the bid and specify any agreements on the
exercise of the voting rights attached to the securities of the offeree
company .
 ---pagebreak---                                     - 37 -
 2.       Where the consideration offered comprises securities for which at
 the time of the bid no official .stock exchange listing has been applied
 for, the board 's report shall be accompanied by the report of an expert
 independent of the parties to the bid appointed or approved by the
 competent supervisory authority . This report shall in all cases state
 whether, in the expert 's opinion, the consideration offered is fair and
 reasonable and shall give the expert 's views on the basis of valuation
 used to determine the consideration .
 3.       The reports shall , in good time before the expiry of the period
 for acceptance, be made public by the means provided for in Article 11
 ( 1 ) and filed with the competent supervisory authority .
 4.      Where the board of the offeree company is in agreement with the
offeror, the board 's report , accompanied, where appropriate , by the
expert 's report as referred to in paragraph 2 , may be attached to the
offer document provided for in Article 10 .
5.       The provisions of this Article shall also apply to revisions of
the bid and to competing bids .
                                     Article 15
                               ( Revision of bids )
1.       At any time before the last week of the period for acceptance
announced in accordance with Article 10 ( 1)(j ), the offeror may revise
the terms of the bid . Article 7 ( 1 ) shall apply as regards the public
announcement of the offeror 's intention to revise the bid .
2.       Where a bid is revised , the previous period for acceptance shall
be automatically extended by one week .
                                                                            131
 ---pagebreak---                                   - 38 -
3.     The offeror shall draw up a document setting out the amendments to
the offer document and making       it public by the means provided for in
Article 11 ( 1 ).
4.    Member States shall ensure that persons who have already accepted
the previous bid by the offeror may accept the revised bid .
5.     The periods provided for in paragraphs 1 and 2 may be modified
with the authorization of the competent supervisory authority , which
must set out the reasons on which it is based .
                                   Article 16
                             ( Automatic revision )
The acquisition by the offeror , by persons acting in concert with him or
by persons acting in their own name but on behalf of the offeror, during
the acceptance period , of securities in respect of which the bid is made
at a price higher than that established in the offer document or one of
its revisions , will itself be considered as a revision of the bid and
have the effect of increasing the consideration offered to those who
have accepted previously .
                                   Article 17
          ( Provision of information to the supervisory authority )
1.    Throughout the period for acceptance of the bid the offeror shall
provide the competent supervisory authority at any time on request with
information as to the number of acceptances received to date .
 ---pagebreak---                                  - 39 -
2.      From the time a bid is publicly announced in accordance with
Article 7 ( 1 ), the offeror or -any holder of 1 X or more of the voting
rights of the offeree company, of the offeror company if the offeror is
a company, or of any other company whose securities are offered by way
of consideration , shall declare to the competent supervisory authority
all acquisitions of securities of the said companies by the offeror or
the holder , persons acting in concert with them or persons acting in
their own name but for their account, and the purchase price of such
securities .
                                  Article 18
                       ( Publication of result of bid )
Once the period for acceptance has expired, the result of the bid shall
made public by the means provided for in Article 11 ( 1 ) and shall be
communicated to the competent supervisory authority by the offeror .
                                  Article 19
   ( Information for representatives of employees of the target company )
The board of the offeree company shall communicate to its workers'
representatives , as designated by national legislation or customary
practice in Member States, the offer document anywhere appropriate, the
documents referred to in Article 10(3 ) and ( 4 ), as well as its own
report as referred to in Article 14 and, if appropriate, the expert 's
report as referred to in Article 14(2 ).
 ---pagebreak---                                    - 40 -
                                    Article 20
                                ( Competing bids )
1.    Where competing bids are made for the securities of the offeree
company, this Directive shall apply to each such bid .
2.    Competing bids shall be publicly announced in accordance with
Article 7 ( 1 ). The offeror shall draw up an offer document in accordance
with Article 10 and shall make it public by the means provided for in
Article 11 ( 1 ) before the period for acceptance of the initial bid
expires .
3.. ■ Except with the authorization of the competent supervisory
authority, which must set out the reasons on which it is based, persons
acting in concert with the offeror or acting in their own name but for
the account of the offeror may not make a bid competing with the initial
bid .
4.    Where there are competing bids and the initial offeror does not
withdraw its bid, the period for acceptance of the initial bid shall be
extended automatically to the date of expiry of the period for
acceptance of the competing bid . The extension shall be made public by
the means provided for in Article 11(1 ) and communicated to the
competent supervisory authority .
                                    Article 21
                             ( Contact Committee )
1*    A Contact Committee shall be set up under the auspices of the
Commission . Its function shall be :
 ---pagebreak---                                   - 41
 (a)   without prejudice to the provisions of Articles 169 and 170 of the
        Treaty, to facilitate the uniform application of this Oirective
        through regular consultations on , in particular ^, practical
       problems arising in its implementation ;
 (b)    to ensure concerted action upon the       policies followed by the
       Member States in order to obtain           reciprocal treatment for
        Community nationals and companies as     regards the acquisition of
        securities of a company by means of a   takeover bid ;
 (c)   to advise the Commission , if necessary, on additions or amendments
       to this Oirective .      .
     0
2.      The Contact Committee shall be composed of representatives of the
Member States and representatives of the Commission . The Chairman shall
be a representative of the Commission . Secretarial services shall be
provided by the Commission .
3.     The Committee shall be convened by the Chairman either on his own
initiative or at the request of one of its members .
                                   Article 22
                      ( Transposition of the Directive )
1.     Member States shall    adopt before .                      the laws,
regulations and administrative provisions necessary to comply with this
Oirective . They shall forthwith inform the Commission thereof .
2.     Member States shall fix the date of entry into force of these
provisions in any case at the latest by .             ...
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3.    Member States shall communicate to the Commission the texts of the
main provisions of national law which they adopt in the field covered by
this Directive .
                                 Article 23
                      ( Addressees of the Directive )
This Directive is addressed to the Member States .
Done at Brussels                            For the Council
 ---pagebreak---                                        - 43 -
                  FICHE D' IMPACT SUR LA COMPETITIVITE ET L' EHPLOI
I.    Quelle est la iustif ieation principale de la mesure ?
1.    Assurer que les actionnaires d' une société qui fait l' objet d' une
      offre publique d' achat ou d' échange ( OPA ) soient traités de façon
      égale .
2.    Assurer que ces mêmes destinataires d' une OPA aient toute
      l' information dont ils ont besoin pour évaluer l' offre ainsi que le
      temps nécessaire pour décider s' ils l' acceptent ou pas .
II .  Caractéristiques des entreprises concernées . En particulier :
a)    Y a - t - il un grand nombre de PME ?
      La directive prévoit une exemption lorsque la société visée est une
      PME non       cotée  ( voir  III ci-dessous ),  pour tenir    compte de  la
      spécificité des opérations impliquant ces sociétés .
b)    Note - t - on des concentrations dans des régions ?
      I. Eligibles aux aides régionaux des Etats membres ?
      II . Eligibles au FEDER ?
      Non .
III . Quelles sont les obligations imposées directement aux entreprises ?
      Les mesures proposées imposent une série d' obligations aux personnes
      et aux sociétés voulant acquérir le contrôle d' une société en vue de
      garantir les objectifs mentionnés sous 1 . ci-dessus . Il s' agit
      notamment de l' obligation de lancer une OPA à partir d' un certain
      seuil de participation dans une société , de l' obligation d' accorder
      un traitement égal aux actionnaires de la société visée se trouvant
      dans des conditions identiques , ainsi que de l' obligation d' informer
      les destinataires de l' offre en établissant un document contenant
      les conditions de celle-ci . Ce document doit également être publié .
      Toutefois en ce qui concerne l' obligation de lancer une offre la
      directive prévoit une exemption lorsque la société visée est une
      PME non cotée .
IV .  Quelles       sont    les   obligations   susceptibles   d' être   imposées
      indirectement aux entreprises via les autorités locales ?
      Nulles .
      Les autorités locales peuvent accorder des exceptions aux
      obligations décrites ci-dessus visant à alléger les obligations
      imposées par la directive lorsque celles-ci résulteraient en des
      charges excessives .
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   V.     Y a - t - il de ; resvres spéciales pour les PME ? Lesquelles ?
          Voir II a ) ci-dessus .
 «
   VI .   Quel est l' effet prévisible
   a)     sur la compétitivité des entreprises ?
          Effet positif . Les OPA constituent en général un moyen très sain
         d' assurer le renouvellement des équipes dirigeantes des entreprises
          européennes par le remplacement d' administrations peu efficaces ou
         non innovatrices . Cela provoque une sélection par le marché des
         entreprises plus compétitives et une restructuration des entreprises
         européennes qui est indispensable pour faire face à la concurrence
          internationale .
         Dans la mesure où une OPA risquerait de provoquer une concentration
         excessive dans un secteur déterminé cela pourrait être évitée par
         l' utilisation des pouvoirs de la Commission en matière de libre
         concurrence .
   b)    sur l' emploi ?
         Pas d' effet direct .
   VII . Les partenaires sociaux ont -ils        été consultés ?   Quels sont leurs
         avis ?
         Le texte a été établi après consultation d' un groupe d' experts des
         Etats membres en matière de droit des sociétés et des principaux
         partenaires sociaux . Les avis des milieux concernés ont été pris en
         considération pour l' élaboration de la présente proposition de
         directive .
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