2013年-CEPS欧洲政策研究中心_A_Legal_and_Economic_Assessment_of_European_Takeover_Regulation_288页_4mb

Detailed Summary of A Legal and Economic Assessment of European Takeover Regulation

Core Content

This document provides a comprehensive legal and economic analysis of the Takeover Bids Directive (2004/25/EC), which establishes minimum rules for takeover bids in the European Union. The study was conducted for the European Commission and includes contributions from multiple law firms and institutions, with the legal review carried out by Marcus Partners and the economic analysis by the European Capital Markets Institute (ECMI), based at the Centre for European Policy Studies (CEPS). The report evaluates the Directive's implementation across 22 EU member states (representing 99% of the EU's total market capitalisation) and compares it with nine major non-EU jurisdictions. It also includes a perception survey of stakeholders such as supervisors, stock exchanges, investors, and employee representatives.

Main Points and Key Findings

Legal Analysis

• History and Adoption:

  • The Directive was first proposed in 1989 and adopted in 2004 after a lengthy negotiation process.
  • The Portuguese compromise was a pivotal moment, allowing member states to opt-in or opt-out of certain provisions (Art. 9 and 11), introducing optionality and reciprocity.
  • The Directive was transposed by all 22 sample countries by 2006, with no major compliance issues reported, except in a few specific cases.

• Transposition and Implementation:

  • The transposition of the Directive led to relatively minor changes in national laws, as many provisions aligned with existing practices.
  • Some countries implemented changes in anticipation of the Directive's adoption, while others did so in response to specific takeover events or economic conditions.
  • The mandatory bid rule and squeeze-out and sell-out rules are generally well-accepted, while board neutrality and breakthrough rules remain optional and subject to national discretion.

• Corporate Governance Framework:

  • The Directive reflects a balanced approach between shareholder-oriented and stakeholder-oriented governance models.
  • It promotes shareholder protection and market transparency, but leaves control structures and defensive measures largely to national laws.
  • The board neutrality rule (Art. 9) requires boards to act in the interest of the company and not prejudice shareholders, while the breakthrough rule (Art. 11) allows bidders to bypass certain defences if they meet specific criteria.

• Perception of Stakeholders:

  • Most stakeholders are satisfied with the Directive, particularly with its disclosure requirements, enforcement mechanisms, and mandatory bid regime.
  • Employee representatives are the most critical, perceiving takeovers as a risk to job security and working conditions.
  • There is limited appetite for changing the optional rules (Art. 9 and 11), due to concerns about the balance between anti-takeover measures and bid facilitation.

Economic Analysis

• Economic Rationale:

  • The Directive is intended to ensure fairness, transparency, and protection in takeover processes.
  • It is designed to align with economic efficiency, particularly through capital mobility and market coordination.
  • However, the mandatory bid rule may create transaction costs, potentially reducing the incentive to launch competing offers.

• Impact on Market Efficiency:

  • The Directive has had a marginal impact on the corporate control market, particularly in the context of the 2008 financial crisis.
  • There is mixed empirical evidence on whether the Directive improves or reduces shareholder value.
  • The squeeze-out and sell-out rules are seen as effective in protecting minority shareholders, but the 90% and 95% thresholds are sometimes exploited by investors to block takeovers or negotiate better terms.

• Impact on Competitiveness and Employment:

  • The Directive's impact on competitiveness is limited, but broadly consistent with the Europe 2020 agenda.
  • The economic analysis suggests that takeovers may have negative externalities, such as disincentives for firm-specific investments in human capital.
  • The study also examines the impact on employment, highlighting concerns about lay-offs, early retirements, and working conditions.

• Key Proposals:

  • The Commission Report recommends:
    1. Clarifying the concept of 'acting in concert'.
    2. Reviewing national derogations to the mandatory bid rule, especially the exemption for voluntary bids that result in full control.
    3. Engaging in further dialogue with employee representatives to improve their rights in takeover situations.
    4. Avoiding the compulsory adoption of optional provisions, as national systems vary significantly.

Conclusion

The Takeover Bids Directive has successfully harmonised key aspects of takeover regulation across the EU, enhancing market transparency, shareholder protection, and legal coherence. However, it remains flexible in certain areas, allowing member states to adapt it to their national systems and cultural contexts. While the Directive is generally viewed as effective, it has not fully resolved the tensions between anti-takeover measures and bid facilitation, and there is ongoing debate on how to further improve it. The economic and legal analyses suggest that the Directive should be reviewed in light of market developments and stakeholder concerns, particularly those related to employee rights and takeover defences.