Breach of the Mandatory Bid Rule. Italy in the Public vs. Private Enforcement Debate

2019 ◽  
Author(s):  
Peter Agstner ◽  
Davide Marchesini Mascheroni
Keyword(s):  
Private Enforcement ◽  
The Public ◽  
Mandatory Bid ◽  
Mandatory Bid Rule

Breach of the Mandatory Bid Rule: Minority Shareholders’ Protection in the Public vs. Private Enforcement Debate

2020 ◽  
Vol 17 (6) ◽  
pp. 726-759
Author(s):  
Peter Agstner ◽  
Davide Marchesini Mascheroni
Keyword(s):  
Case Law ◽  
Private Enforcement ◽  
Minority Shareholders ◽  
Public Enforcement ◽  
The Public ◽  
Mandatory Bid ◽  
Mandatory Bid Rule ◽  
Pros And Cons ◽  
Enforcement Mechanisms ◽  
Acting In Concert

The mandatory takeover bid has been broadly investigated in the literature. The economics of such control acquisition and the pros and cons of the mandatory bid rule are nowadays well-established. Uncertainty still reigns with respect to the fundamental question whether private law remedies are available to minority shareholders in the case of a breach of the duty to make a takeover bid. Statutory law across Member States is essentially silent on this matter, and at a supranational level the CJEU’s case law does not offer valid precedents. European policymakers rely on public enforcement mechanisms, while an action for damages against the bidder is not made available or only reluctantly accepted by the courts. Italy is an outlier, allowing today – after the consolidation of the principles expressed in the leading case Fondiaria-SAI – the recourse to private enforcement remedies. This article shows that, for the purpose of good functioning and competitiveness of capital markets, private enforcement plays an important role against violations of the mandatory bid rules. Thus, public enforcement, which often proved to be ineffective or bypassed especially in cases of acting in concert, should be complemented by the recognition of civil liability of the bidder for breach of the duty to launch a takeover bid. Furthermore, the legal regime of such liability is outlined, thereby investigating the (contractual or tortious) nature of the bidder’s liability and the operativeness of such a regime (e. g., amount of damages, application of compensatio lucro cum damno rule).

Part I Introduction, 1 Introduction

2018 ◽  
Author(s):  
Wijckmans Frank ◽  
Tuytschaever Filip
Keyword(s):  
Competition Law ◽  
Historical Background ◽  
Private Enforcement ◽  
Eu Law ◽  
Public And Private ◽  
The Public ◽  
Eu Competition Law ◽  
Before And After ◽  
Public And Private Enforcement ◽  
The Eu

This chapter explains the term ‘vertical agreements’ and what it covers. It addresses a number of general issues that are relevant to the EU competition law treatment of vertical agreements in general. It describes the implementation and the (public and private) enforcement of Article 101 TFEU before and after the entry into force of Regulation 1/2003. The chapter provides the historical background of both Regulation 330/2010 and Regulation 461/2010. In particular, it devotes specific attention to the nature and legal and practical consequences of soft EU competition law (in the form of notices, guidelines, etc) as opposed to hard EU competition law (provisions of primary and secondary EU law).

The Mandatory Bid Rule: Unnecessary, Unjustifiable and Inefficient

2018 ◽  
Author(s):  
Jesper Lau Hansen
Keyword(s):  
Mandatory Bid ◽  
Mandatory Bid Rule

The Mandatory Bid

2016 ◽  
Author(s):  
David Kershaw
Keyword(s):  
Empirical Evidence ◽  
Ownership Structure ◽  
Trigger Points ◽  
Final Part ◽  
Welfare Gain ◽  
Minority Protection ◽  
Mandatory Bid ◽  
Mandatory Bid Rule ◽  
Target Company ◽  
The Uk

This Chapter explores the nature, the origins and optimality of the mandatory bid rule. It first provides an account of “voluntary” nature of the mandatory bid rule as well as the evolution of the rule from on obligation imposed on selling target directors and major shareholders to an obligation placed upon shareholders following the crossing of ownership thresholds. The Chapter outlines the contemporary mandatory bid rules, including the trigger points, the Code’s policing of the trigger points, and the distinctive and more onerous terms of a mandatory bid. The final part of the Chapter considers the justifications for, and the effects and optimality of, the rule. It concludes that the traditional rationales given in support of the rule are weak and that the theoretical case that the rule is more likely to prevent efficient or inefficient transactions is inconclusive and there are is supportive empirical evidence on either side of the debate. It seems probable that the rule affects ownership structure by deterring the formation of control blocks but whether this is a net welfare gain or loss is unclear, particularly in the UK which benefits from strong minority protection rules. Given weak rationales and this uncertainty about the effects of the rule the Chapter argues that the rule should be retained in the Code and enforced by the Panel but it should be optional for companies. Whether it applies to any particular target company should depend on whether the company has opted out of the rule through its constitution.

The Mandatory Bid Rule: Efficient, After All?

2013 ◽  
Vol 76 (3) ◽  
pp. 529-563 ◽  
Author(s):  
Edmund-Philipp Schuster
Keyword(s):  
Mandatory Bid ◽  
Mandatory Bid Rule

Financial Tunnelling and the Mandatory Bid Rule

2009 ◽  
Vol 10 (2) ◽  
pp. 233-253 ◽  
Author(s):  
Jeremy Grant ◽  
Tom Kirchmaier ◽  
Jodie A. Kirshner
Keyword(s):  
Mandatory Bid ◽  
Mandatory Bid Rule
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