Europejskie prawo przejęć spółek publicznych. Trzynasta Dyrektywa UE z zakresu prawa spółek i jej implikacje dla prawa polskiego

Abstract

Excluded from the scope of application of the Thirteenth Directive on public takeover bids are public bids for the acquisition of securities issued by companies whose core activity is to jointly invest the money entrusted to them by third parties on a risk-dispersed basis, and the units issued by these companies are, at the request of their holders, repurchased or redeemed directly or indirectly at the expense of the assets of these companies. From the point of view of Polish law, this term means an investment fund company operating in the form of a joint-stock company and running an open-ended or mixed investment fund.

A mandatory public offering (set forth in Article 5 (1) of the Thirteenth Directive on public takeover bids) is considered to be an instrument for the protection of small investors who have made a decision to invest in the securities of a particular company, taking into account not only its core business activity and potential profits, but also its prevailing ownership structure. With the acquisition of control over a company by another entity, which may also involve a change in the previous strategy of its development, the basis of the investment decision previously made by the investor changes, which should justify granting him or her the right to exit the company and reinvest the capital thus recovered.

It is not clear from the wording of Article 11(5) of the Directive on public takeover bids who (the member state, the bidder, or the target company) should be obliged to pay the compensation. Because the application of the breakthrough rule is primarily in the interest of the bidder, the claim that it is the bidder who should be required to fulfil this obligation can be defended.

The ratio legis of the institution set forth in Article 15 of the Thirteenth Directive is to enable the majority shareholder to gain full control of the company, as well as to eliminate the costs and risks associated with minority shareholders remaining in the company (e.g., the costs associated with convening the company’s general meetings and the risk of abuse of corporate powers by these shareholders).