Controversial assessment. A significant victory for Europe? Or more of a failure? Judgements on the agreement reached last week by the Council on the directive on take-over bids wavers between the two extremes. This tells us whether the assessment is a controversial one. The positive judgement belongs to the Italian Presidency of the Council, which is pleased to have closed a dossier that was under discussion for fifteen years. The negative judgement was that of European Commissioner Frits Bolkestein, who believes that the text adopted is a step backwards. The first assessment is shared by most Member States and many social and economic forces; the second by various economic and financial circles; other Member States tend more towards Mr Bolkestein's view, but they voted for the compromise, taking account of the "revision clause" which guarantees a re-examination of the situation in five years' time, in the light of experience. Only Spain actually abstained, and favourable unanimity (an absolute requirement, as the Council was moving away from the proposal of the Commission, which did not accept the planned modifications) was reached. In theory, the Commission had something else up its sleeve to block Council's decision: the withdrawal of its proposal (as the Council can only discuss Commission proposals). It didn't use its trump card, however, and Mr Bolkestein explained that he had hoped until the last minute that the debate would be re-opened, and that in any case nothing is definitive because of the revision clause. In another interpretation, Mr Bolkestein would rather have made the final step (withdrawing the draft), but the Commission apparently would not let him make the Council's deliberations legally impossible.
Parliament in favour of the Italian compromise. The ball is now in the European Parliament's court. The atmosphere is one of support for the Italian compromise, which already has the support of the competent parliamentary committee; but the Socialist group plans to present amendments on workers' rights. The rapporteur, Klaus-Heine Lehne (EPP, Germany), called Mr Bolkestein's attitude "incomprehensible", and that of the Socialists "grotesque", as they want changes which stand no chance of being accepted by Council. If, when it pronounces itself in 16 December's plenary, it does not change it, the directive will be definitively approved; if the EP votes for changes, the co-decision procedure with Council will have to continue, but after last week's ministerial discussions, the final result seems to be a sure thing.
Frits Bolkestein's double (or even triple) critique. What I've just said relates to procedures, which worked according to the "Community method". But what is the underlying problem? Mr Bolkestein's criticism of the compromise retained by the Council is a double one:
this compromise gives Member States the option of choosing between two methods. One allows the board of a company confronted with a "hostile take-over bid" to take defence measures without obtaining the shareholders' specific authorisation, and the other leaves all responsibility for deciding how to face the take-over bid in the shareholders' hands. In Mr Bolkestein's view, this freedom of choice between two radically different methods removes all the effects of European harmonisation, and scuppers the creation of a unified financial market;
the option for managers to take defence measures weakens the competitiveness of the European economy, by putting obstacles in the path of transparent and dynamic take-over bids, and therefore goes completely against the objectives of the "Lisbon strategy".
The Internal Market Commissioner also charged the Member States with behaving like "carpet salesmen", by exchanging concessions on subjects which bear no relation to the subject of the debate. France, it is said, backed up Germany on take-over bids in exchange for concessions on agricultural funding, and the United Kingdom in return for support on temporary work (see our bulletin of 29 November, page 12). These are no mean accusations.
"Choosing your society?" The indications above prove that what's at stake goes beyond the technical aspects of the directive. The rules on take-over bids are considered to be an element in the choices the EU is faced with between the liberal hypotheses in favour of market law, and the social democratic notions of discipline. The Union's institutions should not be choosing between two political doctrines, they should be applying the Treaty, which isn't always easy, because personal convictions, even those of a Commissioner who, by definition, does not receive instructions, inevitably have their part to play; and in the European Parliament, clashes between political orientations come as standard. Some of the players feel it's a case of choosing your society. Ahead of the public parliamentary debate, I will try to present the positions and the reasons behind them tomorrow, as objectively as possible. (F.R.)