AG: bid-period concert reporting escapes narrow transparency test

Advocate General Campos Sánchez-Bordona has proposed that France may enforce its stricter takeover-bid disclosure duties without measuring them against the Transparency Directive's narrow concert-party testEuropa — but that a stake built to block a squeeze-out can still count as a lasting common policy towards the issuer's managementEuropa. His Opinion of 15 October 2026Europa in Case C-862/25 (AFI ESCA and Others)Europa, on a reference from the Cour d'appel de Paris (Court of Appeal, Paris, France), proposes answers in a dispute over AMF penalties totalling EUR 1.8 millionEuropa; the Court itself has yet to ruleEuropa.

The Autorité des marchés financiers fined the AFI ESCA holding company and three subsidiaries EUR 200,000 eachEuropa, the manager Dôm Finance EUR 400,000Europa, and their principal Mr V EUR 600,000Europa for concerted stake-building in the listed insurer AprilEuropa during CVC Capital Partners' 2019 simplified takeover bidEuropa. After the bid closed with the offeror on 88%Europa — short of squeeze-out level — the group channelled its April shares into Persée ParticipationsEuropa, which reached 10.18% by 23 December 2019Europa and then sold to the offeror, enabling a buyout at EUR 22 per shareEuropa, a squeeze-out and delisting in July 2020. The AMF found a concerted action aimed at amassing enough shares to block the squeeze-outEuropa the offeror had announced at EUR 21.60Europa, and charged three reporting failuresEuropa: no daily report from 27 June 2019Europa after jointly crossing 1% since the pre-offer period (Article 231-46 AMFGR), no immediate statement of objectives and concerted action on 10 July 2019Europa after crossing 2% (Article 231-47 AMFGR), and no four-day 5% threshold declaration after 15 July 2019Europa (Article L. 233-7 Commercial Code, Article 223-14 AMFGR).

On the first two questions, the Opinion proposes that the takeover-bid reporting duties in Articles 231-46 and 231-47 AMFGR fall under the Article 3(1a) point (iii) exception to the Transparency Directive's maximum harmonisationEuropa, so they need no conforming interpretation under Article 10(a) of Directive 2004/109/ECEuropa. Following the Valora judgment (C-864/24), the exception applies where stricter duties are directly linked to takeover-bid rules and supervised by the Article 4 takeover authorityEuropa — both satisfied in France, where the AMF supervises both regimesEuropa and the 1% and 2% duties are triggered only in bid and pre-offer periodsEuropa. Directive 2004/25/EC itself permits stricter national bid rules under Article 3(2)(b)Europa, and concerted blocking of a squeeze-out strikes at bid transparencyEuropa since minority holders need the information to decide. The general 5% duty, by contrast, applies regardless of any bidEuropa and would still be read under Article 10(a)Europa — though the Advocate General doubts that classification where, as here, the crossing occurred mid-bid between 11 and 26 July 2019.

On the third question — relevant only if Article 10(a) applies — concerted action to block a squeeze-out may qualify as a lasting common policy towards the management of the issuer even without designs on board appointments or strategyEuropa. The provision sets four cumulative conditions (agreement, an obligation to adopt a position from it, concerted exercise, a lasting common policy towards management)Europa, and the management concept is autonomous EU law. Keeping a company listed, with the heavier financing access, disclosure and governance that listing entails, has lasting management consequencesEuropa, so indirect targeting through frustrating the squeeze-out sufficesEuropa; the defendants' argument that they only wanted a higher price does not take the stake-building outside the provisionEuropa.

Legal basis: Directive 2004/109/EC, Articles 3(1a), 9 and 10(a); Directive 2004/25/EC, Articles 2(1)(d), 3(2)(b) and 4; AG Opinion of 15 October 2026 in Case C-862/25; judgments of 9 September 2021 in Case C-605/18 and of 12 February 2026 in Case C-864/24.