Original scientific paper
https://doi.org/10.31141/zrpfs.2023.60.147.37
Control over Joint Stock Companies in the Law on Takeover and the Law on Associated Companies
Marko Ivkošić
; University of Split, Faculty of Law
Abstract
The formal concept of control in the law on takeover differs from the substantive concept of
control in the law on affiliated companies related to the extent of participation in the basic or voting
capital of the target or subsidiary company. The difference in determining the assumed possibility of
prevailing influence and control over the company does not stem from a different degree of influence
in the company. This is because both governance and control primarily depend on the possibility
of appointing members of the management structure, which is achieved by reaching a simple
majority at the general meeting of the company. If the shareholder does not even hold the absolute
majority of voting rights in the company, s/he can exercise his/her predominant influence therein.
By acquiring shares with voting rights to an amount greater than 25%, the shareholder exceeds the
control threshold and is obliged to announce a public offer for takeover, and the addressees of the
offer are all the remaining so-called minority shareholders of the target company. They freely decide
whether to accept the offer and leave the company or reject it. The votes of those shareholders who
act together with him/her are added to those of the share acquirer. Shortcomings were observed in
the determination of the maximum of the control threshold as well as in arranging joint action, so
recommendations de lege ferenda regarding amendments to the relevant provisions and proposals
are made. In the law of affiliated companies, the external shareholders of the subsidiary company
are protected in such a way that they are authorized to pay appropriate compensation or severance
pay, but only in cases where a contract on the management of the company’s affairs and a contract
on the transfer of profits have been concluded. The power of the ruling company over the dependent
is expressed by the phrase “dominant influence”. The ruling company is the one that can directly
or indirectly have a predominant influence on the dependent company, and it is presumed that the
company that is in majority participation is dependent on the company that has a majority share in it.
After considering the power relations in companies whose shares are listed on the regulated market
and related companies, it is observed that the legal protection objectives of the right of takeover and
the rights of related companies do not overlap, nor are they the same addressees, except in the case
of companies whose shares are listed on the regulated market.
Keywords
control over the company; joint-stock company; takeover; joint action; related companies
Hrčak ID:
296629
URI
Publication date:
28.3.2023.
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