Einde inhoudsopgave
The Decoupling of Voting and Economic Ownership (IVOR nr. 88) 2012/5.2.2.2
5.2.2.2 The Shareholders' Rights Directive
mr. M.C. Schouten, datum 01-06-2012
- Datum
01-06-2012
- Auteur
mr. M.C. Schouten
- JCDI
JCDI:ADS595906:1
- Vakgebied(en)
Ondernemingsrecht / Rechtspersonenrecht
Voetnoten
Voetnoten
The Directive is also based on the notion that shareholders 'should be able to exercise those [voting] rights given that they are reflected in the price' paid for the shares. Parliament and Council Directive 2007/36/EC, On the Exercise of Certain Rights of Shareholders in Listed Companies, 3, 5 2007 O.J. (L 184) 17 [hereinafter Shareholders' Rights Directive].
For a discussion of the Directive, see Zetzsche, supra note 8, at 315-27; Arthur R. Pinto, The European Union's Shareholder Voting Rights Directive from an American Perspective: Some Comparisons and Observations, 32 Fordham Int'l L.J. 587 (2009).
This is also illustrated by the fact that the Shareholders' Rights Directive consistently refers to the term 'shareholder,' defined in article 2 of the Directive as 'the natural or legal person that is recognised as a shareholder under the applicable law.' An exception is Article 13 of the Directive, which among other things allows for split voting, but does not impose duties on intermediaries or confer rights on ultimate investors.
See supra text accompanying notes 10-15. See also Zetzsche, supra note 8, at 328 ('[T]he silence of the Directive with regard to intermediaries' participation is particularly unfortunate.'); Mathias Siems, The Case Against Harrnonisadon of Shareholder Rights, 6 Eur. Bus. Org. L. Rev. 529,550 (2006) (noting that the Commission's decision not to address the issue of the 'ultimate investor' in the Shareholders' Rights Directive rendered many other provisions of the Directive meaningless). This Chapter focuses only on the legal aspects of cross-border voting in Europe. However, there are also operational aspects, which are dealt with at the European level by the so-called CESAME Group. One of the initiatives taken in this context aims to ensure that the ultimate investor is enabled to give voting instructions. Joint Working Group on General Meetings, Market Standards For General Meetings—Consultation Document 3 (2008), available at http://essf.sifma.org/publications/consultation/Market-Standards-General-Meetings-Consultation-20081202.pdf In addition, the issue of cross-border voting is addressed on an international level in the context of the 2002 Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary.
In 2007, the European legislature adopted the Shareholders' Rights Directive. This Directive is based on the notion that effective shareholder control is a prerequisite to sound corporate governance and should therefore be facilitated by removing obstacles that deter shareholders from voting, particularly in a cross-border context.1 Thus, the Directive imposes minimum standards on issues such as the dissemination of information concerning shareholder meetings, the use of a voting record date, and the right to put items on the agenda, and also encourages proxy voting.2
The shared feature of these reforms is that they tend to only facilitate cross-border voting by those who formally qualify as shareholders.3 As Figure 1 has illustrated, these need not necessarily be the ultimate investors. Thus, the Directive addresses the first type of barrier to cross-border voting—practical barriers for shareholders to exercise their voting rights—but largely fails to address the second type—barriers that derive from the fact that the ultimate investor may not be the one who is legally entitled to exercise the voting right due to the presence of fmancial intermediaries between the company and the ultimate investor.4 With respect to this second type of banier, the status quo has prevailed so fat