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
approaches towards determining whether shareholders who cooperate in relation
to board appointments are acting in concert. ESMA pointed out that if
shareholders cooperate in an activity not included on the list, this will not
result in an automatic assumption that they are acting in concert. Rather, each
case will be determined on its own particular facts and circumstances. 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.