European Securities and Markets Authority (ESMA) has published a statement on
practices governed by the Takeover Bid Directive (TBD), focused on shareholder
cooperation issues relating to acting in concert and the appointment of board
The statement has a ‘white list’ of activities that shareholders can cooperate
on without the presumption of acting in concert. It also sets out how
shareholders may cooperate in order to secure board member appointments,
showing factors that national authorities may take into account when
considering whether shareholders are acting in concert.
The statement responds to the European Commission’s (EC) request for clarity on
these issues, following its 2012 report on the application of the TBD. It is
based on information collected about the TBD’s application and common practices
across the European Economic Area (EEA). The statement was prepared by the
Takeover Bids Network, a permanent working group, under ESMA’s auspices, that
promotes the exchange of information on practices and application of the TBD
“Today’s statement means that shareholders can now be confident that they can
expect authorities to take a consistent approach across the EEA to their
cooperative activities,” said Steven Maijoor, ESMA chair. “This consistency
should in turn provide the reassurance needed by shareholders for the
effective, sustainable engagement that is one of the cornerstones of listed
companies’ corporate governance model allowing them to hold their boards to
“ESMA believes that ensuring a consistent and convergent supervisory approach
to this issue will be instrumental in affording equality of treatment to
shareholders and investors across the EEA.”
National authorities will refer to the white list when determining whether
shareholders are persons acting in concert under national takeover rules, but
will also take into account all other relevant factors in making their
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