Einde inhoudsopgave
The Decoupling of Voting and Economic Ownership (IVOR nr. 88) 2012/1.2.0
1.2.0 Introduction
mr. M.C. Schouten, datum 01-06-2012
- Datum
01-06-2012
- Auteur
mr. M.C. Schouten
- JCDI
JCDI:ADS595898:1
- Vakgebied(en)
Ondernemingsrecht / Rechtspersonenrecht
Voetnoten
Voetnoten
Council Directive 88/627/EEC, On the Information to be Published when a Major Holding in a Listed Company is Acquired or Disposed Of, 1988 O.J. (L 348) 62 (previous directives required issuers to disclose information on share ownership, but did not impose such duty directly on shareholders and required less disclosure). The European Commission's rationale for proposing this directive was that investors would be provided with information on persons capable of influencing management; this would enable them to 'follow developments in the company's ownership and gain a clearer idea of what is happening internally.' This information, the Commission considered, might affect investors' assessment of the securities and play a crucial role in their investment decisions. Commission Proposal for a Council Directive on the Information to be Published When Major Holdings in the Capital of a Listed Company are Acquired or Disposed Of, at 2, COM (1985) 791 final, O.J. (C 351) 8. For an empirical analysis of the evolution of ownership disclosure rules across countries, see Michael C. Schouten & Mathias M. Siems, The Evolution of Ownership Disclosure Rules Across Countries (2009), available at http://ssm.com/paper=1434144.
See, e.g., The Control Of Corporate Europe (Fabrizio Barca & Marco Becht eds., Oxford Univ. Press 2001).
Strong Blockholders, Weak Owners And The Need For European Mandatory Disclosure 28, 32 (European Corporate Govemance Network Executive Report prepared by Marco Becht 1997).
Communication of the Commission: Financial Services: Implementing the Framework for Financial Markets: Action Plan, at 22, COM (1999) 232 (Nov. 11, 1995).
Directive 2004/109/EC, On the Harmonisation of Transparency Requirements in Relation to Information About Issuers Whose Securities are Admitted to Trading on a Regulated Market, 2004 O.J. (L 390) 38 [hereinafter Transparency Directive].
Id. at 2.
Id. at 18.
See also Eilis Ferran, Building An EU Securities Market 127, 130 (Cambridge University Press 2004) (identifying improving share price accuracy and addressing corporate governance agency problems as the two key functions of issuer disclosure requirements, and stating that the EU issuer disclosure regime is largely designed with a view to improving the accuracy of securities prices in the intererts of investor protection and market efficiency, but that is has recently started explicitly addressing corporate governance disclosures).This Chapter does not separately address the issue of investor protection. For a compelling argument that disclosure is irrelevant to investor protection, see Merritt B. Fox, Civil Liability and Mandatory Disclosure, 109 Colum. L. Rev. 237, 253 (2009). See also Gaëtane Schaeken Willemaers, The EC Issuer-Disclosure Regime: Rethinking The Objectives To Suggest Some Regulatory Implications — A Comparative And Interdisciplinary Approach (forthcoming 2009) (manuscript, on file with author) (developing a similar argument in the European context); Paul Davies, The Take-over Bidder and the Policy of Disclosure, in European Insider Dealing 261 (Klaus Hopt & Eddy Wymeersch eds., Butterworths 1991) (noting that ownership disclosure may be thought to contribute to investor confidence, but developing this argument by stating that the focus of the (UK) disclosure rules is on informing the market of certain important facts so that other actors can take appropriate decisions, thus promoting efficiency).For reasons of space, neither does this Chapter discuss how market efficiency and good corporate govemance can lower the cost of capital. For a discussion, see, e.g., Allen Ferrell, The Case for Mandatory Disclosure in Securities Regulation around the World, 2 Brook. J. Corp., Fin. & Com. L. 81, 93 (2007) (the title of which has provided loose inspiration for the title of this Chapter).
An obligation to disclose major shareholdings was introduced at European level in 1988 with the "Large Holdings Directive."1 This directive significantly improved transparency levels and enabled large-scale studies of control patterns in Europe.2 However, its limited scope and application led observers to conclude that it was not generating the data it was supposed to.3 In 1999, the European Commission announced a range of measures to promote integration of European financial markets. One of the aims was to enable issuers to raise capital on competitive terms across Europe.4 To achieve this aim, the Commission intended to update existing disclosure obligations. This resulted in the Transparency Directive, which in its first recital states that
...[t]he disclosure of accurate, comprehensive and timely information about security issuers builds sustained investor confidence and allows an informed assessment of their business performance and assets. This enhances both investor protection and market efficiency.5
To this end, according to the Directive, those who hold or have access to voting rights should disclose major holdings in listed companies.6 This information "should enable investors to acquire or dispose of shares in full knowledge of changes in the voting structure; it should also enhance effective control of share issuers and overall market transparency of important capital movements".7
From the recitals and the legislative history of the Directive discussed in further detail below, it can be inferred that the main objectives of the European ownership disclosure regime are (1) improving market efficiency and (2) improving corporate governance.8 The following sections explore the different mechanisms through which ownership disclosure can perform these tasks.