The Takeover Directive as a Protectionist Tool?

In the paper The Takeover Directive as a Protectionist Tool? forthcoming in WG Ringe and U Bernitz (eds) Company Law and Economic Protectionism (Oxford/New York: Oxford University Press 2010), my co-authors (Edmund-Philipp Schuster and Emilie van de Walle de Ghelcke) and I examine how the implementation of the European Takeover Directive changed the takeover rules applicable to European companies. When the European Commission first proposed a harmonized legal framework for takeovers in the EU, its aim was to facilitate takeover bids in order to create a more efficient and competitive corporate landscape and to further the single market. In the view of the Commission, a functioning market of corporate control required rebalancing the division of powers between shareholders and management in companies facing a takeover bid. Taking the UK, EU’s most active takeover market, as a model, the Commission proposed to assign the sole decision-making power regarding the bid to the shareholders, with management primarily playing an advisory role.

This so-called board neutrality rule, however, caused much controversy among EU member states, and it was one of the main reasons for the Takeover Directive’s notoriously long adoption history. Failing to achieve consensus on this topic, the Takeover Directive was finally adopted in a “watered down” version, without a mandatory board neutrality rule. Instead, a rather complicated system of “options” was introduced, both at member state and at company level. Although it was clear that this approach would not create the same barrier-free market for corporate control the Commission originally had in mind, it was still hoped that it would be a step in this direction. At the very least, it was certainly expected that this approach would retain the status quo.

In our paper, we analyze the pre-implementation rules regarding management’s role in takeovers in all EU member states, and compare them with the current legal framework after implementation of the Takeover Directive. We find that, instead of facilitating the Commission’s ideal of a comprehensive, mandatory board neutrality rule, the Directive has, in aggregate, likely had an opposite effect. We argue that there are signs of protectionist motives driving member states’ choices regarding board neutrality, and we find that the system of company-level choices is ineffective in its current form.

We propose a simplified and more coherent board neutrality rule, solely based on shareholder decision making. Acknowledging that a system allowing management to prevent unwanted bids might have advantages over a pure board neutrality rule in certain circumstances, we argue that shareholders are in a better position to decide on the optimal rules for a particular company than legislators.

The full paper is available for download here.