OPA collusiva, poteri della Consob e tutela degli investitori

This article sheds light on collusion in the context of setting the price for a mandatory bid. Under the EU Takeover Directive, in accordance with the highest price paid rule, minority shareholders must participate in any sale-of-control transaction on the same terms as the control seller. Nevertheless, in in the event of collusion between an acquirer and a seller, the price paid by the acquirer for the control block does not entirely cover the actual gain that the control seller is able to obtain from the transaction. This is typically accomplished through side contracts, whereby a part of the consideration for the controlling interest is nominally charged to the sale of other assets or rights, so that it does not affect the per-share offer price. Under Italian law, collusion is one of the circumstances in which the Italian securities regulator may impose an increase in the offer price, to reflect the real price paid by the acquirer, provided that it is necessary to protect minority shareholders. The article analyzes conditions for and effects of the exercise of this power by the Italian securities regulator and investigates whether any additional remedy or penalty could apply if it fails to take any action or acts ineffectively.