Executive summary
The interpretation of the concept 'acting in
concert' as used in the Takeover Directive (directive 2004/25)
raises many unanswered questions. This often makes it difficult for
cooperating shareholders (or other parties) to assess whether they
are or will be required to make a mandatory public offer. Recently,
ESMA published a 'white list' of activities in which
shareholders may cooperate without being presumed to have acted in
concert.
Background
Under Dutch takeover law a shareholder (or other party) that is
entitled to exercise 30% or more of the voting rights in a Dutch
company listed in the EU/EEA is required to make a public offer for
the remaining shares at a fair price. For the purpose of
determining whether the 30% threshold has been met, the voting
rights of parties acting in concert with the share-holder or other
party are included. Due to the ambiguous wording of the
acting-in-concert rule, however, it is often unclear whether
