At present, Section III of the CMA contains the detailed rules for the acquisition
of participation in public companies limited by shares. The main rule is that
the threshold for the mandatory public purchase offer is 33%. However, if none
of the shareholders have more than 10% of the voting rights in a public company
limited by shares – either directly or indirectly –, the purchase offer must be
made in the case of the acquisition of a participation in excess of 25%. The purchase
offer must be made for all the voting shares of the company limited by shares
and for all shareholders with voting rights.
The basis of the new regulation is that voting rights can be acquired in ways
other than the acquisition of shares, e.g. through agreements or the harmonised
behaviour of independent persons. For this reason, while the Act on Securities
used the terminology of “acquisition of companies limited by shares”, the CMA
introduced the definition of the “acquisition of participation” into the regulation.
The shareholder will have a reporting obligation in the case of acquiring participation
in excess of 5%, and subsequently, the shareholder shall report the increase of
participation in the case of the acquisition of each additional 5% (e.g. 5%, 10%,
15%, 20%) up to a participation of 50%. Subsequently, only exceeding the 75% and
90% thresholds should be reported. In the same way, the shareholder shall report
the decrease in participation per each 5%.
Any shareholder breaching the legal regulations for acquisitions cannot exercise
any membership rights over the company limited by shares until the disposal of
any shares acquired by evading the rules for the acquisition of participation,
and, in addition, the Supervisory Authority may impose a high penalty.