The Golden Mean or a Dead End? The Takeover Directive in a Shareholder vs Stakeholder Perspective
EUROPEAN COMPANY LAW IN ACCELERATED PROGRESS, Steef M. Bartman, ed., Alphen aan den Rijn, Kluwer Law International, 2006
45 Pages Posted: 8 Dec 2005
Takeovers have the potential to affect all stakeholders. The European takeover directive's stormy history, from the first proposal in 1989 to its - some may say - sorry conclusion in 2004, amply illustrates the heated emotions that the regulation of takeovers gives rise to. An attempt at clarifying the interests affected by a takeover and the relevance of the takeover rules in that respect therefore seems to be in order. This paper first discusses the perspective for an evaluation of the takeover rules, using the shareholder vs stakeholder debate as a starting point. In company and securities law, the combination of the global challenges we face and the economical, social and political significance of companies emphasises the necessity of interdisciplinary and cross-camp research and debate.
In all major legislative contexts, a broad perspective should be applied, integrating the consideration of all stakeholders, in the widest sense of the term including the environmental and global aspect. This requires us to take a step back and ask what we are trying to achieve and evaluate the chosen means in that light. Basically this is a matter of checking whether we are on the way to the good society that must be assumed to be the ultimate objective for us all. The aim of any area of law should be to contribute to this objective.
Evaluating the takeover rules in such a broad perspective is obviously a huge issue. A selected part of such a broad evaluation is presented in this paper, focusing on the protection of affected parties and interests. In that light, the European takeover directive falls through: The directive does a lot where it need not have done anything; the directive's pivotal obligatory rule - the mandatory bid rule - does not seem to have a proper foundation at all. Where the directive should have done something, where it could have given us a hard-law example of the integration of the sustainable development objective in company and securities law, it does nothing.
Keywords: European takeover directive,shareholder primacy, stakeholder theory, sustainable development, mandatory bid rule, EC company law, EC securities law
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