Il Forum Europeo sulla Corporate Governance, gruppo di lavoro formato dalla Commissione Europea alla fine del 2004, nel corso della riunione svoltasi il 2 giugno 2010 ha discusso tematiche concernenti la corporate governance nelle società quotate, indicando quali obiettivi dovrebbero essere tenuti in considerazione dal legislatore comunitario in vista dell’emanazione di future normative (ad es. si è discusso se favorire l’azionariato diffuso o la detenzione di blocchi significativi di azioni, quale debba essere il ruolo degli amministratori indipendenti, ecc.). I membri del forum hanno poi espresso le loro opinioni con riferimento alla direttiva in materia di armonizzazione degli obblighi di trasparenza ed al rischio di “empty voting” (diritto di voto in assenza di un corrispondente interesse economico). Inoltre, è stato dato atto che la Commissione intende promuovere uno studio sull’applicazione della direttiva in tema di OPA. I risultati di tale studio dovrebbero essere previsti entro la fine del 2011.

European Corporate Governance Forum
Minutes of the meeting of 2 June 2010

SOMMARIO:

1. Approval of the agenda - 2. Corporate Governance in listed companies - 3. Presentation by Commissioner Barnier - 4. Minority shareholder protection: preparation of a Forum statement - 5. Evaluation of the Transparency Directive and empty voting: information on the state of play and exchange of views - 6. Corporate Governance in financial institutions: information on the state of play - 7. Executive and financial sector remuneration: information on the state of play - 8. Updates on ongoing commission initiatives - 9. AOB/Conclusion

1. Approval of the agenda

The agenda was adopted unanimously.

2. Corporate Governance in listed companies

2.1. Information on the state of play and exchange of views 2.2. Exchange of views on a paper on the relation between corporate governance and capital markets The Chairman informed the Forum members that Commissioner Barnier has announced a reflection on corporate governance in listed companies, as a follow-up to the work on corporate governance in financial institutions. A Green Paper on this issue is planned for spring 2011. One of the members explained that it is necessary to encourage the different actors to take a longer term view. One of the most important objectives of the current financial market regulation is to provide liquidity. The trend has been short term. In this light, a critical mass of long term shareholders is needed. Regulation currently does not promote that, but has rather encouraged trading over ownership. Therefore, one should look into the incentives for shareholders. He further said that the debate on corporate governance cannot be divorced from the capital market. He supported the idea of looking at the balance between codes and regulation, however he also expressed the opinion that codes can work if there are sufficient critical shareholders, as suggested by the Riskmetrics study. Moreover, if there is intervention to curtail significantly shareholders’ rights, shareholders will not provide capital. He further explained that shareholders do not see themselves as monitors, but are interested in long term value. Finally, he emphasized that oversight of corporate governance comes down to judgment and behaviour. He mentioned auditors, who are criticised for limiting their work to compliance, and remuneration, where it is a question of judgement to say whether a bonus is deserved. Another member focused on dispersed ownership vs. block holdings. He said that securities law moved much more quickly than company law and has favoured dispersed ownership over block holdings aiming at dismantling deviations from the ‘one share on vote’-principle, e. g. articles 8 to 11 of the Takeover Bids Directive. He believes that controlling shareholders are the real entrepreneurs and should be treated more favourably. Concerning comply or explain, he said that in his view the time has come to put the high level principles of corporate governance into legislation. Another member was of the view that rather than checking compliance, auditors should have a more judgemental role. However, a set of benchmarks is needed for [continua ..]

3. Presentation by Commissioner Barnier

Commissioner Barnier gave a short presentation on corporate governance in financial institutions and the upcoming work on corporate governance in general. After the presentation there was an exchange of views. One member explained the functioning of the Forum and clarified that the Forum advises the Commission and may take a different point of view. Another member stressed that it is necessary to develop relations between boards and shareholders to create value and growth. He explained that the market has become more short term oriented and that regulations, which promote trading, have aggravated it. He further explained that long term investors have insufficient incentives to look at these issues. It should also be recognised that shareholders deliver capital, but need sufficient rights to do so. He also mentioned that comply or explain works reasonably well outside the banking sector. Another member stressed that it is important to understand where the differences within the EU are helpful and where diversity is problematic. Promoting convergence of corporate governance used to be included in the mandate of the Forum, but was struck out of it because convergence is not a purpose in itself. The aim should be to promote good corporate governance, which is not necessarily reached by a single solution.

4. Minority shareholder protection: preparation of a Forum statement

The final statement should be discussed and finalized at the next meeting.

5. Evaluation of the Transparency Directive and empty voting: information on the state of play and exchange of views

Participants have been asked to express their views on two issues: if a specific disclosure obligation is imposed in the Transparency directive regarding the transfer of voting rights between the record date and the general meeting, (1) which threshold should be applied and (2) what time limit should be set for the disclosure to be useful. The members agreed that the aim of any regulatory intervention should not be to deal with one specific practice of empty voting. If one practice is regulated, other will appear or will be used extensively. Any disclosure regime should target all situations where votes can be cast without the underlying economic interest. Members expressed a preference for a low threshold (e.g. 1%).

6. Corporate Governance in financial institutions: information on the state of play

Members have been informed about the publication of the Green Paper on corporate governance in financial institutions. Deadline for responses to the consultation is 1 September.

7. Executive and financial sector remuneration: information on the state of play

Members have been informed about the two Commission reports on the application by Member States of the two Commission recommendations in the field of remuneration and on the state of play of ongoing negotiations regarding legislative proposals (Capital requirements Directive and AIFM Directive).

8. Updates on ongoing commission initiatives

The members have been informed that the Commission expects to launch a call for tender for an external study on the application of the Takeover Bids Directive in June 2010, since article 20 of the directive instructs the Commission to examine its application in 2011. Results of the study can be expected by the end of 2011.

9. AOB/Conclusion