Almost six months after the transposition deadline on May 20, 2006 , the OPA directive always found no translation in the law of the countries of the European Union. End of September, the transposition was complete in 15 countries and partial in 2. There were 8 laggards. The Spain and the Belgium come to publish their bills on the subject.
Still incomplete, the implementation of the OPA directive leaves a taste of unfinished. And even if it resulted in significant advances, with the establishment of a basement legal minimum including the establishment of a mandatory offer public threshold or the establishment of a framework for cross-border transactions. Fruit of a compromise policy hardly found after fifteen years of negotiations, the text has left open a number of options, including on the sensitive subject of measures of defence anti-OPA. States have therefore maintained as much as possible their earlier device. The Covenants of shareholders, the multiple voting rights still exist in many countries, and the principle of passivity of the Board of Directors during a public offer for the benefit of the General Assembly, is to be widespread, even if it was adopted in France.
This a minimum harmonisation is the ambitions of origin. Indeed, the Commission will develop by the end of the year a review of the transposition of the directive prior to assessing its impact on the markets. The horizon of a few years, the text could be returned to the business.
In the meantime, practitioners must be with the current device and are to celebrate differences of regulations. At a conference organized in September by the law firm Herbert Smith, Francois Henrot, Associate Manager of Rothschild & Cie Bank, estimated that practitioners are not research "of arbitration regulations, as may be tax" and hope to all have a playground "as flat, homogeneous and stable as possible." "Pending a new direction and a new Act of transposition, it needed no doubt markets punish, by valuing companies, those who choose or are located in countries which maintain restrictive and derogating rules to what is becoming the standard of the common European stock market law", has advanced the business bankerRecalling that the Dutch companies long, for this reason, suffered multiple valuation lower than those of their competitors in other countries. In other words, to the market to obtain that the directive could not do.
More complexity
In implementing the principle of reciprocity, the France is added complexity. This principle is to break the rules of passivity of the Board of Directors in the period of offer as the attacker does not respect this principle. "It is a new form of defence for the French companies, including between them also." "Reciprocity has a good chance to be invoked in many cases of hostile offer," prognostic Jacques Buhart, partner at Herbert Smith. And add: "This will allow the least amount of time." But the notion of reciprocity, which will be appreciated by the AMF on a case by case, has yet to be specified. "It must determine if reciprocity is defined only on the principle of neutrality of the Council or if other provisions may justify its invocation," says Jacques Buhart. The case law will give the answer.
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