A compromise text presented by the Italian Presidency was approved unanimously, with the abstention of the Spanish delegation, by the Competitive Council on 27 November.
The main changes in relation to the Commission's proposal concern the introduction of optional arrangements for the application of provisions concerning defensive measures by the 'offeree' company and obligations of its board as well as the so-called breakthrough provisions (Articles 9 and 11).
The Council stated that given the existing differences between legal systems in the Member States, the Council decided to limit this Directive to a framework of certain common principles and a number of general requirements which Member States will have to respect through detailed implementing rules.
The proposal, as modified by the Council, will form the basis of a possible agreement with the European Parliament at first reading.
Under this compromise, Member States would be able to opt out from the key provisions of the proposed Directive concerning the requirement for management to consult shareholders before applying defensive measures and/or the provisions for voting caps to be neutralised in a post-bid vote by a general assembly of shareholders to amend the company's statutes.
In Member States which did not apply these Articles, individual companies would be allowed to opt in but could again opt out when faced with a bidder which did not apply the same provisions.
The Commission stated that it was not in a position to support the text. Commissioner Bolkestein told the Council that he was opposed to the compromise and that by making Article 9 optional, the proposal had been emptied of its contents.
“The Competitiveness Council says that it wants to be seen to be taking decisions. In all sincerity, I have to say that if the Council continues to take decisions like this one, the European Union will never reach its target of becoming the most competitive economy in the world by 2010.”
“A particular source of disappointment is the way in which the takeovers Directive has fallen victim to horsetrading and unholy alliances of convenience related to totally extraneous issues.”
Council document
Commision press release
Council results
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