During the legislative proceedings of the German Takeover Act, the interests of third parties – i.e. persons only indirectly concerned by but not actively involved in the takeover process as such, e.g. individual shareholders of a target company – did not figure prominently. However, this changed dramatically once the Act came into force. Numerous court decisions dealt with this question, launching an intensive and still ongoing discussion.

Introduction

The protection of (minority) shareholders confronted with a takeover of the company they are invested in has been an issue of lasting concern and interest for Eddy Wymeersch. He has long been a high-profile promoter as well as a critical commentator of the pertinent European developments. This is especially true with respect to the Takeover Directive, whose main goal is the protection of the interests of holders of securities of companies that are the subject of takeover bids or of changes of control (Recital 2). As a framework directive, the 13th Directive provides for basic principles to adhere to, but leaves ample scope for the Member States in other areas. A prominent example of this is the right of the Member States to determine how the protection prescribed in the Directive should be enforced, and whether rights for individual shareholders are to be made available at all. These may be asserted in administrative or judicial proceedings, either in proceedings against a supervisory authority or in proceedings between parties of a bid (Recital 8).