Introduction

Directive No. 2004/25/EC of the European Parliament and Council of 21 April 2004 (the ‘Takeover Directive’ or ‘Directive’) aims to harmonize and co-ordinate takeover bid regulations in the various EU Member State legal systems. As provided by Article 44(2)(g) of the Treaty establishing the European Community, the Council, deliberating in accordance with the co-decision procedure of Article 251 (that is, with the consent of the European Parliament), is meant to co-ordinate the safeguards that are required in each Member State in order to protect the interests of those holding securities in companies (and of third parties), with the purpose of making those safeguards equivalent in the various jurisdictions.

The Takeover Directive was supposed to have been transposed by Member States into national law by no later than 20 May 2006. This deadline was not complied with by a number of Member States due to the political controversy surrounding certain aspects of the Takeover Directive. This was the case for Portugal – Decree-Law 219/2006 of 2 November 2006, amending the Portuguese Securities Code (Decree-Law 486/99 of 13 November 1999, hereinafter the ‘PSC’), only concluded the transposition of the Takeover Directive several months after the established transposition period. From a Portuguese perspective, however, several of the key concepts of the Directive are similar to many that were already in place before the transposition of the Takeover Directive, including, for example: (i) ensuring all holders of the same class of an offeree company's securities are treated equally; (ii) payment of a minimum price on a mandatory bid; and (iii) limiting the board's powers from when a bid is made until it lapses, amongst others.