Ondernemingsrecht: Spanje moet discriminatie tegen aandeelhouders opheffen (en)

The Commission has decided to formally ask the Spanish Government to amend national rules which enable discrimination against shareholders by listed companies when they issue new shares and convertible bonds. The Commission believes this discriminatory treatment is an infringement of the principle of equal treatment of shareholders and of the "pre-emption" rights accorded to shareholders under the Second Company Law Directive (Article 42 and Article 29 respectively). Pre-emption rights aim to encourage investment by providing a guarantee that existing shareholders will have the first opportunity to buy newly issued shares. The Commission's request takes the form of a reasoned opinion, the second stage of the infringement procedure laid down in Article 226 of the Treaty.

According to Article 159 of the Spanish law on public limited liability companies, when a listed company increases its capital by issuing new shares to cash buyers, it can refuse the "pre-emption" right of existing shareholders. The same shares can subsequently be sold to other parties at a substantial discount from their market value.

This possibility applies as an exemption from the general principle set out in the same article of the Spanish legislation concerned, according to which the issue price of the new shares has to equal the fair value, which in the case of listed companies is deemed to be the market value, unless there is a good reason why not. As a result of this exemption, the holdings of existing shareholders may be unduly "diluted" (reduced as a proportion of the company's total shares), because shares may be offered to other parties at a discount, without existing shareholders having had a chance to buy them.

The Commission considers that this is discrimination against shareholders in Spanish listed companies in contravention of the EU's Second Company Law Directive, which rules out undue dilution of shareholdings (Article 29) and which requires Member States' legislation to ensure the equal treatment of shareholders (Article 42).

There appear to be other contraventions of the Second Company Law Directive in Spanish company law. In particular, Spanish law confers on existing holders of convertible bonds pre-emption rights on newly issued shares or on newly issued convertible bonds.

The Commission is therefore requesting Spain to amend its company law to bring it fully into line with EU law, thus ensuring that investors do not suddenly see their influence on a company diminished by the dilution of their shareholdings.

Recent information on infringement proceedings against Member States can be found at the following website:

http://europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm