Introduction

Public tender offers on Italian listed companies (‘takeover bids’) are regulated by certain provisions of (i) Legislative Decree no. 58 of 24 February 1998, as amended (the ‘Financial Act’), and (ii) Regulation no. 11971 of 14 May 1999, as amended (the ‘CONSOB Regulation’), issued by CONSOB (i.e. the Italian agency which regulates and supervises listed Italian corporations and the securities market) in order to implement the regulatory aspects of the Financial Act.

The Takeover Directive has been implemented through Decree no. 229/2007 (the ‘Decree’). The Decree has introduced new rules within the framework of the Financial Act. At this stage, the provisions introduced by the Decree have not been reflected yet in the CONSOB Regulation and, therefore, the current rules provided by the CONSOB Regulation would continue to find application where consistent with the new legal framework. However, the CONSOB Regulation shall be shortly amended in order to reflect the new rules introduced by the Decree (the ‘New CONSOB Regulation’).

The Takeover Directive allowed each Member State to provide for the adoption of certain specific rules (in particular, the passivity rule and the neutralisation rule) upon its discretion, save for the right of any company voluntarily to provide for the applicability of these rules in its by-laws.

In this respect, the Italian legislator had first decided to acknowledge the spirit of the Takeover Directive fully, providing, among other things (and unlike other EU Member States), for the introduction of mandatory rules governing defensive measures and neutralisation rules.