January 2016
·
780 Reads
This Article explores the main convergences and divergences among the different notions of "persons acting in concert" adopted by certain EU and US regulations concerning financial institutions and public companies, for the purpose of identifying a common set of principles governing the interpretation and application of such legal concept. In particular, the "acting in concert" relationship is scrutinized herein taking into account the EU directives on the acquisition of significant holding in banks and other financial institutions, the EU directive on takeover bids on listed corporations and both the EU and US transparency regulations on the ownership of public companies. This analysis shows that while under the regulations on the ownership structure of banks and financial institutions the legal notion of "persons acting in concert" is widely applied and extensively interpreted - since the operation of such companies must be protected also from potential (and not only actual) risks - both the takeover bids' and transparency rules mainly look at the actual exercise of governance rights over listed targets, for the purpose of expanding, respectively, the list of bidders and the information provided to the public on the ownership structure of such companies. As a consequence of the above, we conclude that the notion of "persons acting in concert" should remain flexible and adaptable to the different goals pur-sued in the various sets of rules as the case may be. However, other forms of col-laboration among investors - not aimed at threatening the interests protected by the relevant financial regulations - should not be considered as "acting in concert" conducts for such a purpose, since an overreaching of activities triggering an act-ing in concert presumption might discourage an effective exercise of monitoring rights attached to minority stakes, thus affecting the best governance of financial institutions and public companies.