Equal treatment of shareholders and European Union law - Case note on the Decision ‘Audiolux’ of the European Court of Justice

Abstract

The European Court of Justice has recently issued a decision on the existence of a general principle of equal treatment of minority shareholders upon a transfer of control. According to the plaintiff, from certain specific acts of EU law (such as, among others, the mandatory bid rule provided for by the Takeover Directive) could be inferred the existence of a principle, according to which the person who purchases the control of a company should then offer to all other shareholders the same opportunity to sell their shares. The ECJ denied that such a principle can be inferred from specific provisions of derivative EU law beyond their scope of application. In addition, the ECJ has put in clear words that, in order to impose to the acquirer of corporate control a duty to purchase all outstanding shares, a specific legislative decision is required, with the aim to weight all involved interests.