Tuf, the Opa threshold returns to 30 per cent in the decree

The legislative decree for the reform of the Testo Unico per la Finanza (TUF) changes the threshold for the obligation to launch a takeover bid on a listed company from 25 per cent to 30 per cent of the capital, according to the technical report on the measure that went before the Council of Ministers yesterday. In the decree, which is far-reaching and provides for interventions on entities qualified to manage savings, expands the ability of privatised social security institutions to intervene in investments in the real economy, and amends the Civil Code on corporate governance of companies, there is to be 'a single threshold of 30 per cent, in line with what is provided for in many other European legal systems'.

The 30 per cent threshold is still provided for by the Tuf as a general rule, but with the exception of companies other than small and medium-sized enterprises (i.e. all large listed companies), for which the threshold drops to 25 per cent if there is no shareholder with a larger shareholding. The decree provides for reducing the period to be taken into account for calculating the takeover price from 12 to 6 months.

Among other things, Consob has been granted new powers in the case of rumours concerning the preparation of a takeover bid, inspired by the Takeover Code's put-up or shut-up rule. Consob may set a deadline by which the potential offeror must make known its actual decision to make an offer and, in the event of a non-response or negative response from the potential offeror, it will be prohibited from making an offer on the securities of the same issuer for the following twelve months. The procedure for the purchase of all the shares upon authorisation of the shareholders is also introduced into the law. This procedure is based on the scheme of arrangement of some common law jurisdictions, which is also used for the sale of shareholdings in listed companies. With this procedure, the extraordinary shareholders' meeting may authorise the acquisition of all the shares of a company by a person identified by the board.

As far as corporate governance is concerned, the decree introduces a series of amendments to the Civil Code, with the aim of overcoming the definition of a main system of corporate governance, such as the one-tier system, which hinges on the board of directors. As explained in the explanatory memorandum to the measure, 'this aim is pursued by providing for an autonomous and exhaustive regulation of the three alternative systems of administration and control (including the two-tier system, ed.) which, on the one hand, accords them the same relevance and visibility - thus overcoming the previous approach characterised by a strong favour for the previous 'traditional' system - and, on the other, highlights their respective distinctive features'.