Die Neuregelung des Unternehmenserwerbs im WpÜG aus rechtsvergleichender Perspektive

Abstract

The Enactment of the German Takeover Law on January 1, 2002 was a major reform in  German company law and its capital markets regulation. The new law differs significantly from the Japanese takeover regulation revised in the early 1990s. Whereas the  Japanese law by and large follows the U.S. American model of the Williams Act, the  German legislators took the British takeover regime found in the City Code as a role  model. Thus Germany has followed the path of most other modern European takeover  legislations, at least in principle.

One of the major differences between the American/Japanese model on the one hand  and the British/European/German model on the other lies in the mandatory offer when  acquiring control of a public (listed) company. The first model can be characterised as  a purely market-oriented procedural regulation lacking a mandatory offer; the latter, in  contrast, is built around such an offer and thus can be regarded not only as capital markets law but also, at least partly, as company law.

The British City Code stipulates a strict neutrality rule (non-frustration rule)as a  functional counterbalance to the mandatory bid. The German takeover law provides for  a strict mandatory offer rule, but it has introduced only a very watered-down version of  the non-frustration rule. Basically, the management of a German target of a hostile bid  may implement measures to frustrate the pending bid as long as the supervisory board  agrees. The cumulative effects of this unhappy combination of a mandatory offer and a  limited non-frustration rule make hostile takeovers in Germany even more unlikely than  before. Thus the new law has already been dubbed an “anti-takeover law” by American observers.

With respect to the procedural regulations of the takeover law, the German legislators were guided by U.S. law in at least one crucial aspect: the non-definition of a  tender or public offer. Given the difficulties that have arisen in the U.S. in the past  because of the lack of a clear definition of what constitutes a tender offer, it would have  been better to follow the Japanese example. The Japanese Securities Exchange Law provides for a somewhat complicated but precise and workable definition of a public  offer. Under the new German law, however, it is totally unclear – at least in critical  situations – what constitutes a public offer that would necessitate a formal takeover  proceeding. An example is a partial offer (under 30 percent) that is presented to a small  – e.g., five- or six-member – group of institutional investors. No formal proceedings are  necessary under Japanese law in such a case, but under the German takeover regime a  precise answer is not possible; probably a formal (and costly)proceeding would have  to be conducted.

In sum, a Japanese investor planning to acquire stakes in a German listed company  would be bound for some surprises if he erroneously assumed a praesumptio similtudinis between the Japanese and the German takeover regimes.