Analysis also reveals that the exception of reciprocity may be widely invoked

The OPA directive, adopted in April 2004 after fifteen years of negotiations between the Member States, was finally transposed into France by an act of March 31, 2006. It could not only fuel a debate, to recurring, on economic patriotism, in a political and social climate particularly effervescent, in a period of rumours of OPA hostile, based or non-proliferation elsewhere.

Beyond political, disputes that the French approach is "original" in his reading of the directive, which was obviously the desire to facilitate the OPA in the EU, and to make the last word to the shareholders, only recipients of the offer. However, to preserve the national particularities, it left Member States the freedom to translate some of its provisions. Among these, article 9 obliges the leaders of the target to solicit the opinion of the General Assembly for the adoption of new measures of defence or for the implementation of previous defences (such a delegation to carry out a capital increase, including the issue of the defensive, to discourage offers hostile to the benefit of the negotiation). However, on article 12, which would be the subject of a takeover bid would be exempted from seeking the agreement of the Assembly to implement the previous defences (and not to adopt new for which an agreement of the Assembly is required) when leaders of the aggressor need not themselves view their own Assembly to defend themselves (this is the exception of "reciprocity").

The exception of reciprocity

Certainly, the France chose to impose on French companies the application of article 9 (article 233-32 of the Code of commerce). However, the legislature was careful to transpose in our law article 12 of the directive.

This choice is strongly marked by liberalism even if, at the bottom, the approach remains moderate in that it does not, as the directive authorized it, businesses to identify themselves on the choice of the method. Moreover, he takes failure critics because, far from disarming, as it has been said, the companies French for OPA hostile, Act their offer, the title of a certain economic patriotism say some, but instead, in our view, a simple principle of fairness, the ability to protect themselves, under cover of the exception of reciprocity, companies whose leaders could freely implement protective measures.

Analysis also reveals that the exception of reciprocity may be widely invoked. For example, will be when the assailant, French or foreign, is not listed, since, by assumption, it cannot apply the provisions of article 9, limited to the OPA. It may also be raised when the offeror is a company located on the territory of the EU, which does not voluntarily (e.g. Germany) or coercion (e.g. United Kingdom), article 9, or a company located in a third State whose law would contain similar provisions. For example, many American companies listed, which does not spend the principle of neutrality of the leaders, or emerging companies, whose stock right is its infancy, are likely to be against the exception of reciprocity.

There are more. It is not enough that the attacker applies article 9 or similar measures, must be that it is not itself controlled directly or indirectly, solely or jointly, by a company which does not apply article 9 or similar measures. In practice, once a French publicly traded company is controlled by a family holding company, or a foreign group not subject to article 9 or equivalent measures, it can no longer launch hostile offer from a French company without being confronted with the exception of reciprocity. Similarly, if a listed company foreign and subject to provisions similar to those of article 9 is controlled, the exception of reciprocity could be raised.

In other words, only the companies themselves structurally opéables can launch offers on French companies and take full advantage of the principle of neutrality of the leaders.

For illustration, if Arcelor was French, he could properly implement defenses earlier measures, if any, against Mittal. The global steel giant is indeed registered in the Netherlands, which does not transpose article 9. A voluntary bid would not change if it is confirmed that Mittal is well controlled by a family holding company.

In the end, the conclusion must be: the new law offers to our societies of the effective weapons for hostile takeover so that this transposition "à la française" survives the test of its compliance with European law... but that is another debate!