Marco Tronchetti Provera SpA and Others v Commissione Nazionale per le Società e la Borsa (Consob).
Date: 2017-07-20
24


As is clear from recitals 1, 2, 3 and 9 to Directive 2004/25, its objective is to protect the interests of holders of the securities of companies the control of which is acquired by a natural or legal person and it seeks, in that perspective, to guarantee clarity and transparency of the rules in respect of takeover bids.
25


To that end, in accordance with Article 1(1), the directive lays down measures for the coordination of the laws of Member States relating to takeover bids for the securities of companies governed by the laws of those States, where all or some of those securities are admitted to trading on a regulated market.
26


Article 3(1) of that directive lays down the guiding principles, naming them ‘general principles’, that must be complied with in the implementation of the directive (see, to that effect, the judgment of 15 October 2009, Audiolux and Others, C‑101/08, EU:C:2009:626, paragraph 51). Included amongst those principles is the principle that if a person acquires control of a company, the other holders of securities must be protected.
27


With a view to ensuring compliance with those principles, Article 3(2)(a) and (b) of Directive 2004/25 provides that Member States, first, must ensure that the minimal requirements laid down by that directive are observed and, second, may lay down additional conditions and provisions more stringent than those laid down by the directive for the regulation of bids.
28


Under the heading ‘Protection of minority shareholders, the mandatory bid and the equitable price’, Article 5 of that directive lays down, with a view to protecting the interests of company shareholders, essentially two rules that are mandatory for Member States and another that they may choose to apply.
29


First of all, Article 5(1) of Directive 2004/25 lays down the principle of the mandatory bid for the acquisition of the holdings of securities in a given company. It also provides that where a natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in concert with him/her, holds securities of a company falling within the scope of application of the directive which, added to any existing holdings of those securities of his/hers and the holdings of those securities of persons acting in concert with him/her, directly or indirectly give him/her a specified percentage of voting rights in that company, giving him/her control of that company, Member States must ensure that such a person is required to make a bid as a means of protecting the minority shareholders of that company, and that bid is to be addressed to all the holders of those securities for all their holdings at the equitable price as defined in Article 5(4) of the directive.
30


Next, also in order to ensure the protection of minority shareholders in the company subject to the takeover bid, in accordance with the first subparagraph of Article 5(4) of Directive 2004/25 the equitable price is regarded as, primarily, the highest price paid for the same securities by the offeror, or by persons acting in concert with him/her, during a period determined by the Member States of no less than six months and no more than 12 months before the bid referred to in Article 5(1) of that directive.
31


Finally, the second sentence of Article 5(4) of Directive 2004/25 provides that, subject to compliance with the principles set out in Article 3(1), the Member States may authorise their supervisory authorities, referred to in Article 4 of the directive, to adjust the equitable price in certain circumstances and according to specified criteria. To that end, Member States may, first, draw up a list of circumstances in which the highest price may be adjusted either upwards or downwards, and, second, determine the criteria to be applied in such cases, it being specified that those circumstances and criteria must be clearly determined. Examples of such circumstances and such criteria are mentioned in the second subparagraph of Article 5(4) of the directive.
40


Moreover, in itself, recourse to an abstract legal notion only means that the national norm in which it was included would suffer from an ambiguity that it made it difficult for the Member State that had adopted it to resolve with sufficient certainty any doubts as to the scope or meaning of that norm (see, to that effect, the judgment of 14 April 2005, Belgium v Commission, C‑110/03, EU:C:2005:223, paragraph 31).
41


It is true that, both the principle of legal certainty and the need to secure the full implementation of directives in law and not only in fact require that all Member States reproduce the rules of the directive concerned within a clear, precise and transparent framework providing for mandatory legal provisions (judgments of 16 November 2000, Commission v Greece, C‑214/98, EU:C:2000:624, paragraph 23, and of 14 January 2010, Commission v Czech Republic, C‑343/08, EU:C:2010:14, paragraph 40).