Country Report from Norway: The New Takeover Regime (2)

Abstract

The EC takeover directive can be - and has been - criticised on several levels, but the implementation in the Members States nevertheless has to go on. Of particular focus in the current discussion amongst Member State academics is the interpretation of the directive's Article 5 (1) and Article 2 (1) d on persons 'acting in concert' as a basis for a mandatory bid obligation. Together with Article 5 (4) on the issue of the price to be paid in case of a mandatory bid, these provisions raise a number of questions - the answers to which the directive itself does not necessarily give much guidance. Preliminary reactions from various Member States indicate that these provisions may be implemented and interpreted in quite different ways and that the underlying rationale and the probable effect of these variations may lead to a spectre of takeover regimes in Europe.

After providing an update on the implementation status in Norway, this report briefly discusses the Norwegian version of the 'acting in concert' provision in light of the requirements of the takeover directive. Delving into the directive and its implementation further invites reflection on the lack of perspective in both. However, this report ends on a hopeful note, with indications of a more well-founded attitude from the Norwegian legislator in the future.

Keywords: EC takeover directive, Norwegian implementation, acting in concert, consolidation, sustainable development