19.9 Acting in Concert, Acting in a Certain Capacity 54119.9 Acting in Concert, Acting in a Certain Capacity
The capacity in which a party acts influences the application of disclosure and
other rules and the prohibition of insider trading. Parties can act as one party (in
concert) or as separate parties, and a party can act on behalf of another party or on
its own behalf.
Acting in concert. When parties act in concert, many obligations will be applied
as if the parties were one party, or actions by one party are attributed to many par-
ties.
Depending on the context, provisions on acting in concert are based on differ-
ent Community law instruments. They include, in particular, the Transparency Di-
rective (disclosure of major holdings^141 ), the Directive on takeover bids (disclosure
of control structures,^142 duty to make a mandatory bid,^143 the price paid for the
shares by the offeror or by persons acting in concert with the offeror,^144 disclosure
in the offer document of the identity of persons acting in concert with the of-
feror^145 ), and EU competition law (prohibition of concerted practices which re-
strict competition,^146 acquisition of joint control).
What acting in concert means depends on the context.^147 For example, what is
regarded as acting in concert in the context of the disclosure of major holdings
(when it triggers a mere disclosure obligation) does not have to be the same thing
as acting in concert in the context of mandatory bids (when it triggers a duty to
make a bid and pay a higher price) or in the context of the acquisition of joint con-
trol.
It is unclear to what extent those provisions of Community law are interrelated.^148 There is
US literature^149 and case-law on the tension between antitrust laws and securities regula-
tion, and there are rules for “implied revocation of the antitrust laws in the field of securi-
ties regulation”.^150
(^141) Articles 10 and 13(1) of Directive 2004/109/EC (Transparency Directive).
(^142) Article 10 of Directive 2004/25/EC (Directive on takeover bids).
(^143) Article 5(1) of Directive 2004/25/EC (Directive on takeover bids).
(^144) Article 5(4) of Directive 2004/25/EC (Directive on takeover bids).
(^145) Article 6(3) of Directive 2004/25/EC (Directive on takeover bids).
(^146) Article 81(1) of the EC Treaty.
(^147) Fleischer H, Finanzinvestoren im ordnungspolitischen Gesamtgefüge von Aktien-,
Bankaufsichts- und Kapitalmarktrecht, ZGR 2008 pp 196–199 and 204.
(^148) See ibid, p 223.
(^149) See, for example, Rock EB, Antitrust and the Market for Corporate Control, Cal L R 77
(1989) pp 1365–1428.
(^150) Finnegan v. Campeau Corp., 915 F.2d 824 (2d Cir. 1990): “The three seminal Supreme
Court cases, Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10
L.Ed.2d 389 (1963), Gordon v. New York Stock Exchange, 422 U.S. 659, 95 S.Ct.
2598, 45 L.Ed.2d 463 (1975), and United States v. National Association of Securities
Dealers, 422 U.S. 694, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975), establish the rules for im-
plied revocation of the antitrust laws in the field of securities regulation.”