Rejection of a Recommendation by the Takeover Board by Minority Shareholders

Facts

AEM S.p.A., a shareholder with a stake of 5.76% in Atel, approached the Takeover Board and requested that it declare the public takeover offer inadmissible and recommend not to publish the offer prospectus. The Takeover Board allowed AEM S.p.A. to intervene in the proceedings and decided that the offer prospectus had to be amended or supplemented in various respects. AEM S.p.A. rejected the recommendation and contested the legality of the exchange offer and the independence of the auditing body. The Takeover Board forwarded the application to the Takeover Commission of the Federal Banking Commission, which confirmed AEM S.p.A.'s authority to reject the Takeover Board's recommendation.

AEM S.p.A. filed an administrative appeal with the Federal Supreme Court and requested that the decision of the Banking Commission be set aside. The Federal Supreme Court did not consider the administrative appeal.

Considerations

The Federal Supreme Court examined whether AEM S.p.A. was entitled to reject the recommendations of the Takeover Board. It found that the Takeover Board is not a preceding authority of the Banking Commission and its recommendations do not have any legal effect on the parties. AEM S.p.A. was only admitted as an intervenor in the proceedings before the Takeover Board and therefore did not have party status.

The Federal Supreme Court ruled that the authority to reject the recommendations of the Takeover Board under existing law only applies to the parties, but not to minority shareholders of the target company, even if they have been admitted as intervenors. AEM S.p.A. was therefore not entitled to request a decision from the Banking Commission that deviated from the relevant recommendations.

The Federal Supreme Court also pointed out that the question of party…