The Takeovers Directive (Interim Implementation) Regulations 2006

PART 2 The Takeover Panel

CHAPTER 1 The Panel and its rules

The rules

3.  The rules shall have effect.

The Panel

4.—(1) For the purposes of these Regulations, a reference to the functions of the Panel is a reference to functions provided for in this Part.

(2) The Panel shall supervise takeover bids for the purposes of the rules.

(3) The Panel may do anything that it considers necessary or expedient for the purposes of, or in connection with, its functions.

(4) The Panel may make arrangements for any of its functions to be discharged by—

(a) a committee or sub-committee of the Panel; or

(b) an officer or member of staff of the Panel, or a person acting as such.

Publication of the Code

5.—(1) The Code must be made available to the public, with or without payment, in whatever way the Panel thinks appropriate.

(2) A person is not to be taken to have contravened a rule if he shows that at the time of the alleged contravention the Code had not been made available as required by paragraph (1).

(3) The production of a document purporting to be a printed copy of the Code endorsed with a certificate signed by an officer of the Panel authorised by it for that purpose and stating—

(a) that it is a true copy of the Code, and

(b) that on a specified date the Code was made available to the public as required by paragraph (1),

is evidence (or in Scotland sufficient evidence) of the facts contained in the certificate.

(4) A certificate purporting to be signed as mentioned in paragraph (3) is to be treated as having been properly signed unless the contrary is shown.

(5) A person who wishes in any legal proceedings to rely on the Code may require the Panel to endorse a copy of the Code with a certificate of the kind mentioned in paragraph (3).

CHAPTER 2 Information

Power to require documents and information

6.—(1) The Panel may by notice in writing require a person—

(a) to produce any documents that are specified or described in the notice;

(b) to provide, in the form and manner specified in the notice, such information as may be specified or described in the notice.

(2) A requirement under paragraph (1) must be complied with—

(a) at a place specified in the notice; and

(b) before the end of such reasonable period as may be so specified.

(3) This regulation applies only to documents and information reasonably required in connection with the exercise by the Panel of its functions.

(4) The Panel may require—

(a) any document produced to be authenticated, or

(b) any information provided (whether in a document or otherwise) to be verified,

in such manner as it may reasonably require.

(5) The Panel may authorise a person to exercise any of its powers under this regulation.

(6) A person exercising a power by virtue of paragraph (5) must, if required to do so, produce evidence of his authority to exercise the power.

(7) The production of a document in pursuance of this regulation does not affect any lien that a person has on the document.

(8) The Panel may take copies of or extracts from a document produced in pursuance of this regulation.

(9) A reference in this regulation to the production of a document includes a reference to the production of—

(a) a hard copy of information recorded otherwise than in hard copy form; or

(b) information in a form from which a hard copy can be readily obtained.

(10) A person is not required by this regulation to disclose documents or information in respect of which a claim to legal professional privilege (in Scotland, to confidentiality of communications) could be maintained in legal proceedings.

Restrictions on disclosure

7.—(1) This regulation applies to information (in whatever form)—

(a) relating to the private affairs of an individual, or

(b) relating to any particular business,

that is provided to the Panel in connection with the exercise of its functions.

(2) No such information may, during the lifetime of the individual or so long as the business continues to be carried on, be disclosed without the consent of that individual or (as the case may be) the person for the time being carrying on that business.

(3) Paragraph (2) does not apply to any disclosure of information that—

(a) is made for the purpose of facilitating the carrying out by the Panel of any of its functions;

(b) is made to a person specified in Part 1 of Schedule 1;

(c) is of a description specified in Part 2 of that Schedule; or

(d) is made in accordance with Part 3 of that Schedule.

(4) Paragraph (2) does not apply to—

(a) the disclosure by an authority within paragraph (5) of information disclosed to it by the Panel in reliance on paragraph (3);

(b) the disclosure of such information by anyone who has obtained it directly or indirectly from an authority within paragraph (5).

(5) The authorities within this paragraph are—

(a) the Financial Services Authority;

(b) an authority designated as a supervisory authority for the purposes of Article 4.1 of the Takeovers Directive;

(c) any other person or body that exercises functions of a public nature, under legislation in an EEA State other than the United Kingdom, that are similar to the Panel’s functions or those of the Financial Services Authority.

(6) This regulation does not prohibit the disclosure of information if the information is or has been available to the public from any other source.

(7) Nothing in this regulation authorises the making of a disclosure in contravention of the Data Protection Act 1998(1).

Offence of disclosure in contravention of regulation 7

8.—(1) A person who discloses information in contravention of regulation 7 is guilty of an offence, unless—

(a) he did not know, and had no reason to suspect, that the information had been provided as mentioned in regulation 7(1); or

(b) he took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

(2) A person guilty of an offence under this regulation is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both);

(b) on summary conviction, to imprisonment for a term not exceeding three months, or to a fine not exceeding the statutory maximum (or both).

(3) Where a company or other body corporate commits an offence under this regulation, an offence is also committed by every officer of the company or other body corporate who is in default.

(4) Proceedings for an offence under this regulation are not to be brought—

(a) in England and Wales except by or with the consent of the Secretary of State or the Director of Public Prosecutions;

(b) in Northern Ireland except by or with the consent of the Department of Enterprise, Trade and Investment or the Director of Public Prosecutions for Northern Ireland.

CHAPTER 3 Co-operation

Duty of co-operation

9.—(1) The Panel must take such steps as it considers appropriate to co-operate with—

(a) the Financial Services Authority;

(b) an authority designated as a supervisory authority for the purposes of Article 4.1 of the Takeovers Directive;

(c) any other person or body that exercises functions of a public nature, under legislation in any country or territory outside the United Kingdom, that appear to the Panel to be similar to its own functions or those of the Financial Services Authority.

(2) The Financial Services Authority must take such steps as it considers appropriate to co-operate with—

(a) the Panel;

(b) an authority designated as a supervisory authority for the purposes of Article 4.1 of the Takeovers Directive;

(c) any other person or body that exercises functions of a public nature, under legislation in any country or territory outside the United Kingdom, that appear to the Financial Services Authority to be similar to those of the Panel.

(3) Co-operation may include the sharing of information that the Panel or the Financial Services Authority, as the case may be, is not prevented from disclosing.

CHAPTER 4 Contravention of rules etc.

Failure to comply with rules about bid documentation

10.—(1) This regulation applies where there is a takeover bid to which the offer document rules apply.

(2) Where an offer document published in respect of the bid does not comply with offer document rules, an offence is committed by—

(a) the person making the bid; and

(b) where the person making the bid is a body of persons, any director, officer or member of that body who caused the document to be published.

(3) A person commits an offence under paragraph (2) only if—

(a) he knew that the offer document did not comply, or was reckless as to whether it complied; and

(b) he failed to take all reasonable steps to secure that it did comply.

(4) Where a response document published in respect of the bid does not comply with response document rules, an offence is committed by any director or other officer of the company for which the bid is made, who—

(a) knew that the response document did not comply, or was reckless as to whether it complied; and

(b) failed to take all reasonable steps to secure that it did comply.

(5) Where an offence is committed under subsection (2)(b) or (4) by a company or other body corporate (“the relevant body”)—

(a) subsection (2)(b) has effect as if the reference to a director, officer or member of the person making the bid included a reference to a director, officer or member of the relevant body;

(b) subsection (4) has effect as if the reference to a director or other officer of the company referred to in subsection (1) included a reference to the director, officer or member of the relevant body.

(6) A person guilty of an offence under this regulation is liable—

(a) on conviction on indictment, to a fine;

(b) on summary conviction, to a fine not exceeding the statutory maximum.

(7) Proceedings for an offence under this regulation are not to be brought—

(a) in England and Wales except by or with the consent of the Secretary of State or the Director of Public Prosecutions;

(b) in Northern Ireland except by or with the consent of the Department of Enterprise, Trade and Investment or the Director of Public Prosecutions for Northern Ireland.

(8) Nothing in this regulation affects any power of the Panel in relation to the enforcement of its rules.

Enforcement by the court

11.—(1) If, on the application of the Panel, the court is satisfied—

(a) that there is a reasonable likelihood that a person will contravene a rule-based requirement, or

(b) that a person has contravened a rule-based requirement or a disclosure requirement,

the court may make any order it thinks fit to secure compliance with the requirement.

(2) Except as provided by paragraph (1), no person—

(a) has a right to seek an injunction, or

(b) in Scotland, has title or interest to seek an interdict or an order for specific performance,

to prevent a person from contravening (or continuing to contravene) a rule-based requirement or a disclosure requirement.

No action for breach of statutory duty etc.

12.—(1) Contravention of a rule-based requirement or a disclosure requirement does not give rise to any right of action for breach of statutory duty.

(2) Contravention of a rule-based requirement does not make any transaction void or unenforceable or affect the validity of any other thing.

Interpretation of Chapter 4

13.  In this Chapter—

“contravene” includes fail to comply;

“contravention” includes failure to comply;

“disclosure requirement” means a requirement imposed under regulation 6;

“offer document” means a document required to be published by Rules 30.1 and 32.1 of the Code;

“offer document rules” means rules set out in Rules 24 and 27 of the Code to the extent that they are referred to in section 10(e) of the Introduction to the Code;

“officer” includes director, manager or secretary;

“response document” means a document required to be published by Rules 30.2 and 32.6(a) of the Code;

“response document rules” means rules set out in Rules 25 and 27 of the Code to the extent that they are referred to in section 10(e) of the Introduction to the Code;

“rule-based requirement” means a requirement imposed by or under rules.

CHAPTER 5 Miscellaneous and supplementary

Recovery of fees or charges

14.  A fee or charge payable by any person by virtue of the rules is a debt due from that person to the Panel, and is recoverable accordingly.

Panel as party to proceedings

15.  In the exercise of its functions the Panel is capable (despite being an unincorporated body) of—

(a) bringing proceedings under this Part in its own name;

(b) bringing or defending any other proceedings in its own name.

Exemption from liability in damages

16.—(1) Neither the Panel, nor any person within paragraph (2), is to be liable in damages for anything done (or omitted to be done) in, or in connection with, the discharge or purported discharge of the Panel’s functions.

(2) A person is within this paragraph if—

(a) he is (or is acting as) a member, officer or member of staff of the Panel; or

(b) he is a person authorised under regulation 6(5).

(3) Paragraph (1) does not apply—

(a) if the act or omission is shown to have been in bad faith; or

(b) so as to prevent an award of damages in respect of the act or omission on the ground that it was unlawful as a result of section 6(1) of the Human Rights Act 1998(2) (acts of public authorities incompatible with Convention rights).

Privilege against self-incrimination

17.—(1) A statement made by a person in response to—

(a) a requirement under regulation 6(1), or

(b) an order made by the court under regulation 11 to secure compliance with such a requirement,

may not be used against him in criminal proceedings in which he is charged with an offence to which this paragraph applies.

(2) Paragraph (1) applies to any offence other than an offence under one of the following provisions (which concern false statements made otherwise than on oath)—

(a) section 5 of the Perjury Act 1911(3);

(b) section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995(4);

(c) Article 10 of the Perjury (Northern Ireland) Order 1979(5).

Amendments and modifications to Financial Services and Markets Act 2000

18.—(1) Section 348 of the Financial Services and Markets Act 2000(6) does not apply to—

(a) the disclosure by an authority to which paragraph (2) applies of confidential information disclosed to it by the Financial Services Authority in reliance on subsection (1) of that section;

(b) the disclosure of such information by a person obtaining it directly or indirectly from an authority to which paragraph (2) applies.

“Confidential information” has the meaning given by section 348(2) of that Act.

(2) This paragraph applies to—

(a) the Panel;

(b) an authority designated as a supervisory authority for the purposes of Article 4.1 of the Takeovers Directive;

(c) any other person or body that exercises functions of a public nature, under legislation in an EEA State other than the United Kingdom, that are similar to the Financial Services Authority’s functions or those of the Panel.

(3) The Financial Services and Markets Act 2000 is amended as follows.

(4) In section 143 (power to make rules endorsing the City Code on Takeovers and Mergers etc.), after subsection (1) insert—

“(1A) The Authority may not make endorsing rules in respect of provisions of that Code that are given effect by regulation 3 of the Takeovers Directive (Interim Implementation) Regulations 2006.”

(5) At the end of section 349 (exceptions from section 348) insert—

“(8) Section 348 has effect subject to regulation 18(1) of the Takeovers Directive (Interim Implementation) Regulations 2006.”

(1)

1998 c. 29.

(2)

1998 c. 42.

(3)

1911 c. 6.

(4)

1995 c. 39.

(5)

S.I. 1979/1714 (N.I. 19).

(6)

2000 c. 8.