Last week, I reported on the Federal Supreme Court’s judgment that denied claims of individual investors if a controlling shareholder fails to make a mandatory offer. Ulrich Wackerbarth, a corporate law professor and blogger* at the Corporate BLawG, has published a fundamental critique of the judgment: No rights of private action – basta!
Backed up by systematic arguments, his main critique is that the powers of BaFin to police mandatory offers are insufficient, and that private actions must be admitted for the rules to have teeth. Christoph Seibt, a partner in Freshfields and professor at Bucerius Law School, in ZIP 2013, 1568 (paywalled) pretty much reaches the same conclusion. Seibt points out that the judgment must be read in conjunction with the restrictive case law of the Court of Appeals (Oberlandesgericht) Frankfurt, which grants neither the target company nor its shareholders the right to force BaFin to intervene, or the right to seek judicial review in the administrative courts if BaFin approves of an offer or grants dispense from a mandatory offer requirement.
* If you have not done so – check out the link list below, which points to some German blawgs.