At
the request of the European Commission, the European Securities and Markets
Authority (ESMA) has issued a
list of activities that shareholders can cooperate on without being
considered to be acting in concert under the Takeover Directive. The ESMA
guidance provides that shareholders will not be acting in concert
when they enter into discussions with each other about possible matters to be
raised with the company’s board. Similarly, they will not be acting in concert
when they make representations to the company’s board about corporate policies,
practices or particular actions that the company might consider taking. Shareholders will not be acting in concert
when they agree to vote the same way on a particular resolution put to a
general meeting, other than in relation to the appointment of board members.
The ESMAS list does not include any
activity relating to cooperation on board appointments, due to differences in Member State
National competent authorities will
have regard to the ESMA 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 decisions.
ESMA Chair Steven Maijoor said that the issuance of the list
means that shareholders can be confident that regulators will take a consistent
approach across the E.U. to shareholder cooperative activities. In turn, the
Chair believes that this consistency will provide shareholders with the
reassurance they need for the effective, sustainable engagement that is one of
the cornerstones of sound corporate governance, allowing them to hold their
boards to account.