Provisional text

delivered on 3 July 2025 (1)

Case C‑567/24

YO

Svema Trade, d.o.o.,

intervening parties:

minority shareholders in the company Hram Holding d.d.

(Request for a preliminary ruling from the Okrožno sodišče v Ljubljani (District Court, Ljubljana, Slovenia))

( Reference for a preliminary ruling – Freedom of establishment – Companies – Directive 2004/25/EC – Takeover bid – Mandatory bid – Right of squeeze-out – Protection of minority shareholders – Fair price – Presumption – Presumption rebuttable, irrebuttable or rebuttable in certain circumstances )

Directive 2004/25/EC (2) establishes minimum guidelines with the aim of ensuring transparency and legal certainty in takeover bids.

One of the objectives of Directive 2004/25 is to ensure equality of conditions in takeover bids, protecting the interests of the holders of securities (in particular, but not only, those with minority holdings).

The Member States are to take measures to enable any offeror to acquire a majority interest in a company and exercise full control over it. (3) According to Article 15 of Directive 2004/25, they must provide that, where, as a result of a takeover bid, an offeror acquires a certain percentage of a company’s capital carrying voting rights, the offeror may acquire the remaining securities at a fair price. (4)

The request for a preliminary ruling seeks to clarify the nature and scope of the presumption relating to the fair nature of the price which, pursuant to Article 15(5), third subparagraph, of Directive 2004/25, by way of consideration, the offeror has to pay to the holders of the securities affected by the right of squeeze-out.

In the original proceedings, minority shareholders in an offeree company are in dispute with the majority shareholder. The latter, having acquired more than 90% of the company’s capital carrying voting rights, is seeking to exercise the right of squeeze-out over the former, acquiring their securities at the price offered in the takeover bid. The minority shareholders argue that that price is not equitable.

I.Legal context

A.European Union law. Directive 2004/25

In accordance with recitals 9, 19 and 24:

‘(9) Member States should take the necessary steps to protect the holders of securities, in particular those with minority holdings, when control of their companies has been acquired. The Member States should ensure such protection by obliging the person who has acquired control of a company to make an offer to all the holders of that company’s securities for all of their holdings at an equitable price in accordance with a common definition. …

…

(19) Member States should take the necessary measures to afford any offeror the possibility of acquiring majority interests in other companies and of fully exercising control of them. …

…

(24) Member States should take the necessary measures to enable an offeror who, following a takeover bid, has acquired a certain percentage of a company’s capital carrying voting rights to require the holders of the remaining securities to sell him/her their securities. Likewise, where, following a takeover bid, an offeror has acquired a certain percentage of a company’s capital carrying voting rights, the holders of the remaining securities should be able to require him/her to buy their securities. These squeeze-out and sell-out procedures should apply only under specific conditions linked to takeover bids. Member States may continue to apply national rules to squeeze-out and sell-out procedures in other circumstances.’

Article 2 (‘Definitions’) states in paragraph 1:

‘For the purposes of this Directive:

(a) “takeover bid” or “bid” shall mean a public offer (other than by the offeree company itself) made to the holders of the securities of a company to acquire all or some of those securities, whether mandatory or voluntary, which follows or has as its objective the acquisition of control of the offeree company in accordance with national law;

(b) “offeree company” shall mean a company, the securities of which are the subject of a bid;

(c) “offeror” shall mean any natural or legal person governed by public or private law making a bid;

…

(e) “securities” shall mean transferable securities carrying voting rights in a company;

…’

Article 3 (‘General principles’) provides:

‘1. For the purpose of implementing this Directive, Member States shall ensure that the following principles are complied with:

(a) all holders of the securities of an offeree company of the same class must be afforded equivalent treatment; moreover, if a person acquires control of a company, the other holders of securities must be protected;

…’

Article 5 (‘Protection of minority shareholders, the mandatory bid and the equitable price’) states:

‘1. Where a natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in concert with him/her, holds securities of a company as referred to in Article 1(1) which, added to any existing holdings of those securities of his/hers and the holdings of those securities of persons acting in concert with him/her, directly or indirectly give him/her a specified percentage of voting rights in that company, giving him/her control of that company, Member States shall ensure that such a person is required to make a bid as a means of protecting the minority shareholders of that company. Such a bid shall be addressed at the earliest opportunity to all the holders of those securities for all their holdings at the equitable price as defined in paragraph 4.

…

4. The highest price paid for the same securities by the offeror, or by persons acting in concert with him/her, over a period, to be determined by Member States, of not less than six months and not more than 12 before the bid referred to in paragraph 1 shall be regarded as the equitable price. If, after the bid has been made public and before the offer closes for acceptance, the offeror or any person acting in concert with him/her purchases securities at a price higher than the offer price, the offeror shall increase his/her offer so that it is not less than the highest price paid for the securities so acquired.

Provided that the general principles laid down in Article 3(1) are respected, Member States may authorise their supervisory authorities to adjust the price referred to in the first subparagraph in circumstances and in accordance with criteria that are clearly determined. To that end, they may draw up a list of circumstances in which the highest price may be adjusted either upwards or downwards, for example where the highest price was set by agreement between the purchaser and a seller, where the market prices of the securities in question have been manipulated, where market prices in general or certain market prices in particular have been affected by exceptional occurrences, or in order to enable a firm in difficulty to be rescued. They may also determine the criteria to be applied in such cases, for example the average market value over a particular period, the break-up value of the company or other objective valuation criteria generally used in financial analysis.

…’

Article 15 (‘The right of squeeze-out’) states:

‘1. Member States shall ensure that, following a bid made to all the holders of the offeree company’s securities for all of their securities, paragraphs 2 to 5 apply.

(a) where the offeror holds securities representing not less than 90% of the capital carrying voting rights and 90% of the voting rights in the offeree company,

(b) where, following acceptance of the bid, he/she has acquired or has firmly contracted to acquire securities representing not less than 90% of the offeree company’s capital carrying voting rights and 90% of the voting rights comprised in the bid.

In the case referred to in (a), Member States may set a higher threshold that may not, however, be higher than 95% of the capital carrying voting rights and 95% of the voting rights.

Where the offeree company has issued more than one class of securities, Member States may provide that the right of squeeze-out can be exercised only in the class in which the threshold laid down in paragraph 2 has been reached.

4. If the offeror wishes to exercise the right of squeeze-out he/she shall do so within three months of the end of the time allowed for acceptance of the bid referred to in Article 7.

Following a voluntary bid, in both of the cases referred to in paragraph 2(a) and (b), the consideration offered in the bid shall be presumed to be fair where, through acceptance of the bid, the offeror has acquired securities representing not less than 90% of the capital carrying voting rights comprised in the bid.

Following a mandatory bid, the consideration offered in the bid shall be presumed to be fair.’

B.Slovenian law

Article 68 of the Zakon o prevzemih (Law on company acquisitions; ‘the ZPre-1’), (5) which transposes Article 15 of Directive 2004/25 in the Republic of Slovenia, provides:

‘(1) For the squeeze-out of minority shareholders of an offeree company in which the acquirer has acquired at least 90% of the voting shares following a mandatory or voluntary takeover bid, accepted by the holders of at least 90% of the voting shares in that company, the provisions of the Law on capital companies relating to the squeeze-out of minority shareholders shall apply, unless otherwise provided for in paragraph 2 of this article.

(2) Where, following a proposal from the acquirer as the principal shareholder, within three months of the announcement of the result of the takeover bid as set out in the preceding paragraph, the general meeting of the offeree company resolves to transfer the shares of the minority shareholders to the principal shareholder, the acquirer shall, as consideration in lieu of the cash amount determined in accordance with the Law on capital companies, propose consideration of the type and amount specified in the takeover bid.’

II.Facts, dispute and questions referred for a preliminary ruling

YO is a minority shareholder in the Slovenian company Hram Holding d.d. (‘Hram Holding’). The shares in that company are listed on the Slovenian stock exchange.

Svema Trade d.o.o. (‘Svema’) initially held 19.77% of the shares in Hram Holding. On 30 September 2021, it purchased 67.56% of the issued shares from the previous majority shareholder, as a result of which it became the holder of 87.32% of the shares in Hram Holding.

Since it had thereby exceeded the threshold percentage of votes giving it control of the company under Slovenian legislation, Svema was obliged to launch a takeover bid, which it did on 27 October 2021. It was authorised to do so by the Slovenian supervisory authority for securities.

As a result of the takeover bid, Svema’s shareholding in Hram Holding reached 90.51%.

In the three months following the success of the takeover bid, the general meeting of Hram Holding, following a proposal by Svema, passed a resolution to the effect that the minority shareholders would sell their shares to Svema, in exchange for cash consideration of the same amount as that specified, for each share, in the bid.

YO has brought a claim before the Okrožno sodišče v Ljubljani (District Court, Ljubljana, Slovenia), seeking a determination in respect of the compensation which Svema has to pay to the Hram Holding shareholders who were obliged to transfer their securities to Svema.

In support of its claim, YO maintains that the sale to Svema of the shares in Hram Holding was a fictitious transaction, the true purpose of which was to squeeze out the minority shareholders by requiring them to sell their securities at a price which is not fair.

Svema replies that it acted by mutual agreement with the previous majority shareholder and denies that the sale of the shares in the company was a fictitious transaction. It adds that it is not for the courts to examine or determine the valuable consideration offered for the remaining shares.

By a decision of 27 January 2023, a joint representative of the minority shareholders was appointed for the purposes of the proceedings. That representative agrees with the arguments of YO and, moreover, rejects Svema’s claim that, in the context of a squeeze-out following a mandatory takeover bid, it is not for the courts to supervise or determine the cash consideration offered.

Since Article 68 of the Zpre-1 is relevant to the resolution of the dispute and since that article must be interpreted in accordance with Directive 2004/25, the referring court wishes to know whether the presumption relating to the fair price, provided for in Article 15(5), third subparagraph, of Directive 2004/25, is relative or absolute.

The court a quo (6) states that the response to that question has practical consequences for the resolution of the dispute, since:

–If the third subparagraph of Article 15(5) of Directive 2004/25/EC is to be interpreted as meaning that the presumption relating to the fair price in a mandatory takeover bid is, in any event, relative, the referring court … if it considers there to have been a mandatory takeover bid in this specific case, in light of the interpretation of Article 68(2) of the ZPre-1 in accordance with EU law, would re-examine the appropriateness of the amount of the fair consideration offered in the bid.

–If the presumption relating to the fair price is instead interpreted as absolute, the minority shareholder’s claim for a judicial remedy would be rejected. However, if that provision is to be interpreted as meaning that the presumption is relative only in certain circumstances, the court would first need to assess whether those circumstances arise and are proven in the case in question.’

In that context, the Okrožno sodišče v Ljubljani (District Court, Ljubljana), refers the following questions to the Court of Justice for a preliminary ruling:

‘Must the third subparagraph of Article 15(5) of Directive [2004/25] be interpreted as meaning that the presumption laid down in that provision of the directive must be regarded as absolute or relative?

If the above presumption [relating to] fair consideration is to be regarded as relative, is that relative character unlimited or possibly limited to specific circumstances?’

III.Procedure before the Court of Justice

The request for a preliminary ruling was received at the Court on 21 August 2024.

Written observations were submitted by the Finnish and Italian Governments, and also by the European Commission.

It was not considered necessary to hold a hearing.

IV.Analysis

In accordance with Article 15(1) and (2) of Directive 2004/25, following a bid made to all the holders of the offeree company’s securities for all of their securities, Member States are to ensure that the offeror, under certain conditions, is able to require all the holders of the remaining securities to sell the offeror those securities at a fair price.

Directive 2004/5 thus provides for the right of squeeze-out to be exercised (in the three months following the closure of a mandatory or voluntary takeover bid) once the offeror: (7)

–holds a certain percentage of the capital carrying voting rights, as well as a certain percentage of the voting rights in the offeree company, (8) or

–following acceptance of the bid, has acquired securities representing not less than 90% of the offeree company’s capital carrying voting rights and 90% of the voting rights included in the takeover bid. (9)

29.In either case, the offeror must pay a fair price (consideration) to the holders of the securities affected by the right of squeeze-out.

30.In relation to that fair price, Article 15(5) of Directive 2004/25 lays down rules which differ according to whether the takeover bid was voluntary (second subparagraph) or mandatory (third subparagraph).

31.The referring court asks the Court of Justice to interpret the third subparagraph of Article 15(5) of Directive 2004/25. It wishes to know whether the presumption applicable to the consideration payable in cases of squeeze-out following a mandatory takeover bid is ‘absolute’ (irrebuttable) or ‘relative’ (rebuttable). If it is rebuttable, it wishes to know in what specific circumstances the presumption would apply or be rebutted.

32.In theory, the rule at issue could be interpreted to mean that each Member State is free to decide whether or not to regard the presumption as rebuttable. (10) However, Article 15(5), third subparagraph, of Directive 2004/25 does not appear to grant the Member States such discretion. Where that discretion exists in Article 15, the legislature has itself signalled it, using phrasing of a different kind (for example, in paragraphs 2 and 3 and in paragraph 5, first subparagraph).

A.Rebuttable or irrebuttable nature of the presumption

33.The referring court justifies its doubts on the basis that the text of Article 15(5), third subparagraph, of Directive 2004/25 is unclear. Its ambiguity is not clarified by the preparatory work [for that directive] and is confirmed by the diversity of scholarly opinions and judicial decisions regarding the provision. (11)

1.Literal argument and preparatory work for the directive

34.I agree with the referring court in that it is not possible to determine the nature of the presumption at issue from the literal wording of the provision. Nor does the work done preparatory to the adoption of the legislation appear to be conclusive.

35.Article 15(5), third subparagraph, of Directive 2004/25 does not state, expressly, whether the presumption it establishes is relative or absolute. (12) The [different] language versions of the text use formulations which, in themselves, possess different connotations:

–in some versions, the verb used suggests that the presumption is relative. That is the case, for example, in the French (‘[est] presumée’), English (‘[shall be] presumed’) and Portuguese (‘presume [-se]’) versions;

–in other versions, however, the verb used points to the presumption being absolute: that is the case with the terms in German (‘gilt’), Spanish (‘[se] considerará’) and Italian (‘[è da] considerare’).

36.The unreliability of the literal interpretation criterion (13) is increased by the fact that, in Article 15(5), second subparagraph, of Directive 2004/25, some language versions use the same verb or periphrasis as in the third subparagraph, (14) while other versions include variations which could suggest the application of different types of presumption in each subparagraph. (15)

37.With regard to the preparatory work, the Commission followed the so-called ‘Winter Report’ on this point. (16) The Commission’s proposal, in line with that report, contained the presumption of the (then) Article 14(3), third subparagraph, which was considered to be rebuttable in nature, but only in certain circumstances. (17)

38.On the other hand, in light of the documents published on the negotiations that would lead to the adoption of Directive 2004/25, it is not certain that the final text established a rebuttable presumption. (18)

39.Since neither the textual criterion nor the work preparatory to adoption is conclusive, the provision must be interpreted in its context and in light of its purpose. (19)

2.Context

40.In general terms, as I have already said, Article 15 of Directive 2004/25 provides that an offeror who, following a takeover bid, holds a certain majority of the capital in the offeree company may consolidate his or her control of that company by requiring the holders of the remaining securities to sell him or her their securities, at a fair price.

41.The purpose of Article 15(5) of Directive 2004/25 is to make it easier to determine that price and to ensure that it is fair. To that end, in its second and third subparagraphs, it refers to two presumptions, applicable, respectively, depending on whether the preceding takeover bid was voluntary or mandatory.

42.The two presumptions are similar in that, in order to clarify what price is fair, they refer to the consideration offered in the preceding takeover bid:

–In the case of a voluntary takeover bid, ‘… the consideration offered in the bid shall be presumed to be fair where, through acceptance of the bid, the offeror has acquired securities representing not less than 90% of the capital carrying voting rights comprised in the bid.’

–In the case of a mandatory takeover bid, the consideration offered in the bid is regarded as fair, without qualification.

43.On the face of it, two presumptions with the same location and purpose may also be thought to be similar in nature. (20) If, when the right of squeeze-out is exercised, the presumption based on the price of the voluntary takeover bid were, as I believe, considered to be rebuttable (the burden of proof is placed on whoever contests the fairness of the price offered),(21) the same could be argued for the presumption in the case of mandatory takeover bids.

44.I recognise, however, that the difference between the presumptions according to the type of takeover bid may be interpreted to mean that the two are not necessarily of the same nature. (22)

45.From that second perspective, the condition of exceeding a certain threshold of acceptance (imposed by Article 15(5), second subparagraph, of Directive 2004/25) is explained on the basis that, for voluntary takeover bids, the offeror is free to propose the price. In a mandatory takeover bid, on the other hand, Article 5(4), first subparagraph, first sentence, of Directive 2004/25 states how it is to be set. (23)

46.The differences in question are, at least, sufficient to raise doubts regarding the identity of the presumptions in Article 15(5) of Directive 2004/25 as regards their rebuttable or irrebuttable nature.

47.The first contextual factor which may be used to interpret the rule at issue does not, then, prove decisive.

48.From the point of view of the context, Article 5 of Directive 2004/25, which regulates the protection of minority shareholders, the mandatory bid and the equitable price, takes on greater importance. Paragraph 4 of that article establishes the method for setting the equitable price of the shares acquired in a mandatory takeover bid, such that it is the same in all of the Member States. (24) Paragraph 1 of Article 5 also refers to the equitable price at which a bid is required to be made to the holders of the securities.

49.In accordance with Article 5(4) of Directive 2004/25, ‘the highest price paid for the same securities by the offeror, or by persons acting in concert with him/her, over a period, to be determined by Member States, of not less than six months and not more than 12 before the bid referred to in paragraph 1 shall be regarded as the equitable price.’ (25)

50.For its part, Article 15 of Directive 2004/25, dealing with the right of squeeze-out, provides that an offeror is able to require all the holders of the remaining securities to sell him or her those securities at a fair price (paragraph 2), which is to be guaranteed (paragraph 5, first sentence).

51.In some language versions of Article 15(2) and (5) of Directive 2004/25, the price must also be equitable, while in others a fair price is required. (26) I do not think that difference is of great importance: in each of the versions, the value of the shares affected by the right of squeeze-out is set by reference to the price paid as a result of the takeover bid, which, in the case of a mandatory bid, itself has to be equitable (as defined by Directive 2004/25 itself). In my view, therefore, for the purposes of Article 15(5), third subparagraph, fair and equitable are synonyms.

52.For reasons of internal consistency, the term ‘equitable’ in Directive 2004/25, as applied to the price of the shares of minority shareholders in offeree companies subject to a mandatory takeover bid, has only one meaning. Article 15(5), third subparagraph, does not include a definition of equitable consideration for the residual securities, nor does it give an independent method for determining it.

53.Starting from that premiss, it could be argued that the presumption in Article 15(5), third subparagraph, of Directive 2004/25 is irrebuttable: at the stage of squeeze-out, the consideration that had previously been paid for each security in the takeover bid would take precedence. That price, in accordance with the law, must itself be (have been) equitable.

54.In my view, however, in light of Article 5, that reading of Article 15(5), third subparagraph, of Directive 2004/25 is not correct and the presumption established in the latter is rebuttable.

55.Under Article 5 of Directive 2004/25, the value of the security, calculated according to the objective method laid down in paragraph 4, first subparagraph, of that article, is the highest price paid for the same securities by the offeror over a certain period. However, that price does not unfailingly have to be the same as the fair price in cases of squeeze-out following a mandatory bid.

56.To begin with, that price will not be fair (ceases to be so) if, after the bid has been made public and before the offer closes for acceptance, the offeror or any person acting in concert with him or her purchases securities at a price higher than the offer price. (27)

57.Moreover, the price calculated according to the method described above (that is, the highest price paid by the offeror for the company’s securities over a certain period, prior to acquiring the majority of that company’s capital) may not be equitable in certain circumstances. (28)

58.Article 5(4), second subparagraph, of Directive 2004/25 refers to situations in which ‘… the highest price was set by agreement between the purchaser and a seller … the securities in question have been manipulated … [or] market prices in general or certain market prices in particular have been affected by exceptional occurrences, or in order to enable a firm in difficulty to be rescued.’

59.Those or other situations (29) which reflect irregularities in the course of the takeover bid or distortions in the functioning of the market (30) justify the ability of the supervisory authorities, authorised by the relevant national law, to adjust, either upwards or downwards, an amount which was prima facie presumed to be fair. (31) The new assessment will be the ‘equitable price’.

60.In my opinion, with regard to the relationship between Articles 5 and 15 of Directive 2004/25, it follows from what has been set out so far that the presumption contained in Article 15(5), third subparagraph, of that directive should be regarded as rebuttable where the circumstances referred to in Article 5(4), second subparagraph, arise.

61.If the presumption in Article 15(5), third subparagraph, of Directive 2004/25 were irrebuttable, consideration that, in accordance with that directive itself, was originally unfair, but was not adjusted, would become fair later on, at the stage of squeeze-out. The irrebuttable presumption would thus have the potential to make equitable something which, in reality, was not so.

62.The contextual interpretation of the rule at issue therefore leads me to contend that the presumption contained in Article 15(5), third subparagraph, of Directive 2004/25 is rebuttable.

3.Purpose

63.One of the objectives pursued by Directive 2004/25 is to protect the minority shareholders in an offeree company. However, that principal objective (32) is not its sole objective.

64.In that regard, the Court of Justice has observed that:

–‘… the rule on setting an equitable price, laid down in Article 5(4) of Directive 2004/25, is just as much intended to protect the offeror in so far as it makes it possible to determine the maximum price which the offeror will have to pay to minority shareholders in a takeover bid …’ (33)

–‘Furthermore, the power to adjust the equitable price provided for in the second subparagraph of Article 5(4) of that directive may also protect the offeror’s interests, in that that provision envisages the possibility that the equitable price may be adjusted downwards in certain circumstances determined by the Member States.’ (34)

65.Underlying Directive 2004/25 there is, moreover, a general interest, beyond the protection of the offeror and the minority shareholders. (35)

66.Article 15 of Directive 2004/25 attempts to achieve a balance between those objectives. Without neglecting the interest of the offeror, it supports that of the squeezed out shareholders.

67.The offeror, once it has become the majority shareholder, has the opportunity to reduce the costs and risks associated with minority shareholders remaining in the company (36) The right to require those minority shareholders to sell their securities, once a certain threshold holding in the company has been reached, may be regarded as a counterpart to the rule for mandatory takeover bids, which, in turn, supplements it.

68.In that context, Article 15(5) of Directive 2004/25 connects the rules for shareholders who respond positively to the mandatory takeover bid to those for shareholders who, not having agreed to part with their securities in the course of that takeover bid, are required to sell them, if the offeror achieves a certain majority of the capital carrying voting rights.

69.The connection to which I refer is seen, on the one hand, in the form of the consideration in cases of squeeze-out (if it is not paid in cash, (37) it must take the same form as the consideration offered in the bid) (38) and, on the other, in the way in which it is calculated, as the price (39) paid for the securities in the mandatory takeover bid is presumed to be fair for the remaining securities. (40)

70.The aim of that is as follows:

–To offer the holders of the securities who opted not to sell in the mandatory takeover bid protection comparable to that afforded to those who did sell, placing the two groups on an equal footing with regard to financial compensation. (41)

–To avoid possible opportunistic behaviour on the part of shareholders in the offeree company, who, anticipating that the offeree will be prepared to pay a higher price for the remaining shares following the takeover bid, may be tempted to wait until that time. (42)

71.By establishing the presumption at issue in Article 15(5), then, Directive 2004/25 aims to make it easier to determine, objectively, the price owed to the holders of the remaining securities. Not only does the directive eliminate the need to set it individually for each minority shareholder, but it also mitigates (although, in my opinion, does not entirely avoid) the risk of proceedings relating to the amount. (43)

72.Starting from the above premises, I consider the interpretation of Article 15(5), third subparagraph, of Directive 2004/25 which most faithfully reflects its objectives to be one which regards the presumption at issue as being rebuttable in nature, but, at the same time, does not accept that it is possible to contest it in all circumstances.

73.The presumption cannot be regarded as irrebuttable in every case, because that would equate to allowing the price set for the purposes of the takeover bid to be regarded, unquestionably, as equitable at the stage of squeeze-out, simply because it was paid in that bid, even if it can be shown that the calculation of the price was vitiated by the anomalous circumstances referred to in Article 5(4) of Directive 2004/25.

74.It is true that the payment of the price accepted by the majority of the shareholders shows that, in principle and according to the logic of the market in which takeover bids take place, it was fair, within the meaning of Directive 2004/25. However, as set out above, Directive 2004/25 itself accepts (Article 5(4)) that, in certain situations, the price determined according to the common method may not be fair.

75.In the circumstances referred to in Article 5(4), first paragraph, in fine, of Directive 2004/25, or where those referred to in the second subparagraph arise and the price is not adjusted, the value resulting from the use of that method may be considered unfair.

76.In other words, by including, at the stage of squeeze-out, the method for setting the consideration that was valid for the preceding takeover bid, Article 15(2) and Article 15(5), first subparagraph, of Directive 2004/25 only fulfil their function of protecting the holders of the remaining securities if the circumstances that justify the rebuttal of the presumption, included in Article 5(4) of that directive, do not arise.

77.It follows from the above that the presumption contained in Article 15(5), third subparagraph, of Directive 2004/25 must be rebuttable. Otherwise, those shareholders who legitimately opted not to sell in the takeover bid might not, in exchange for their securities, obtain an equitable price, as defined by Directive 2004/25 itself.

78.The possibility of rebutting the presumption must not, however, be so broad that it ultimately strips that presumption of its usefulness and reintroduces (indirectly) the problem of opportunistic behaviour on the part of minority shareholders. (44)

Conditions for rebutting the presumption

79.Article 15(5), third subparagraph, of Directive 2004/25 presumes that the price offered in the mandatory takeover bid is also fair in the context of the exercise of the right of squeeze-out, on the basis that that price was fair in that bid.

80.The correlation between those two prices implies, as a rule, that, at the stage of squeeze-out, it is not legitimate to dispute the price of the shares in a takeover bid that has ended in success.

81.In principle, any debate in that regard was settled in the course of the takeover bid itself, on the basis of the price accepted by the majority shareholders, if the transaction complied with the requirements of the market. There is, then, no basis to contest the presumption contained in Article 15(5), third subparagraph, of Directive 2004/25 when a debate regarding the price has already been settled in the course of the bid, in normal circumstances.

82.The association which Directive 2004/25 makes between the price paid in a mandatory takeover bid and the price of the remaining securities affected by the right of squeeze-out implies that the situations in which the latter is contestable are the same as those in which the former may be considered not to be equitable.

83.It is situations of that kind – which had not been assessed in the course of the takeover bid – which Directive 2004/25 itself provides for in Article 5(4), second subparagraph, and to which others of a similar nature could be added. (45)

84.In those Member States in which the supervisory authority has the power to adjust the price of the bid,(46) the effectiveness of the (rebuttable) presumption disappears, if that authority, based on its analysis, does not consider that price to be fair. In such a case, the decision of the regulatory authority takes precedence from the moment it becomes final.

85.The Court of Justice has had the opportunity to rule on Article 5(4), second subparagraph, of Directive 2004/25. (47) Its guidance, transferred to Article 15(5), third subparagraph, implies the following:

–The Member States enjoy a certain discretion to define the circumstances in which it is possible to contest the presumption relating to the fairness of the price and, where appropriate, adjust it.

–Those circumstances must be clearly determined, which does not prevent recourse to indeterminate legal concepts for that purpose. It is not necessary for the legislature to specify ex ante all of the situations covered by such concepts, provided that their interpretation is able to be deduced from the applicable national rules in a sufficiently clear, precise and predictable manner, using the methods of interpretation recognised by the [relevant] national law.

–Any adjustment of the price must respect the guiding principles set out in Article 3(1) of Directive 2004/25.

Right of squeeze-out and right to property

86.In submitting that the presumption contained in Article 15(5), third subparagraph, of Directive 2004/25 is rebuttable, the Commission cites Article 17 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

87.In its opinion, the squeeze-out of the minority shareholders implies a ‘marked tempering’ of the right to property enshrined in Article 17 of the Charter, (48) such that the presumption relating to the price could be rebutted if the guarantee relating to fair compensation is not respected.

88.I can understand the appeal of that argument. However, in so far as it takes reasoning inherent in [the area of] expropriation and projects it onto that of the ownership of shares in a listed company that is the subject of a takeover bid, I am inclined to treat it with caution.

89.Without a more in-depth analysis, which the referring court has not requested, I am not sure that it is correct to apply to Article 15 of Directive 2004/25, without qualification, reasoning typical of [the area of] compulsory purchase, and nor am I sure what the result of such extrapolation would be. The compatibility of the right to property with the right of squeeze-out has been confirmed by the constitutional and supreme courts of some Member States with arguments that are not necessarily identical. (49)

90.The following reflections are relevant in the event that, despite everything, the Court of Justice decides to explore the Commission’s proposal.

91.The Court has stated that Article 17(1) of the Charter is applicable to the ownership of company shares tradeable on capital markets. (50) It has also held that the right to property does not constitute an absolute prerogative: its exercise may be subject to restrictions (51) under the conditions set out in Article 17(1) and Article 52(1) of the Charter. (52)

92.Compatibility between the right to property and the right of squeeze-out therefore requires that those conditions arise. They include the payment of fair compensation in exchange for being deprived of the right.

93.However, the value of shares listed on a stock exchange is set by the market itself; that is, it does not depend on the assessment of each particular shareholder. Moreover, anyone acquiring ownership of listed shares knows from the outset (or ought to know) that the legal rules relating to those securities include the possibility, backed up by the law, that he or she will be obliged to sell them, when an offeror company makes a successful takeover bid. Ownership of shares of that kind, then, has certain connotations which distinguish them from other assets susceptible to classic compulsory purchase.

94.Were the premiss that squeeze-out approximates to the concept of expropriation to be accepted, it is worth noting that, under Article 1 of Protocol No 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the ECtHR has rejected, as too general and inflexible, certain systems for calculating compensation in the event of expropriation. (53) In my opinion, a presumption applicable to a group of persons (the minority shareholders) which was irrebuttable under all circumstances could meet with the same objection.

95.In relation to Article 1 of Protocol No 1 of the ECHR, the ECtHR holds that fair compensation should correspond to the real market value of the expropriated property. Only exceptionally is a lower amount regarded as fair. (54)

96.On the basis of what I have set out in the preceding sections, the price of the shares calculated in accordance with Article 5(4) of Directive 2004/25 usually reflects the market value, and, therefore, so would the consideration received pursuant to Article 15(5), third subparagraph, of the same directive.

97.Directive 2004/25 itself recognises, however, that that price is not acceptable in certain exceptional circumstances. If that is the case because its amount is lower than that of the fair price, then nor will it be acceptable as compensation for the shares affected by the right of squeeze-out, from the perspective of the right to property. That would seem to confirm the rebuttable nature of the presumption established in Article 15(5), third subparagraph, of Directive 2004/25.

Conclusion

98.In the light of the foregoing, I suggest responding to the Okrožno sodišče v Ljubljani (District Court, Ljubljana, Slovenia) as follows:

Article 15(5), third subparagraph, of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids,

should be interpreted as meaning that the presumption relating to the fairness of the price offered as consideration for the securities of minority shareholders affected by the right of squeeze-out is rebuttable under the same circumstances and conditions as those under which, in accordance with Article 5(4), second subparagraph, of Directive 2004/25, the price offered in the preceding takeover bid may considered not to be equitable for that bid, if it was then not adjusted.

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Original language: Spanish.

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Directive of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12).

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See the first sentence of recital 19 of Directive 2004/25, and also recital 24.

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This right is usually referred to in English as the right of squeeze-out.

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Uradni list RS, No 79/06, 67/07 – ZTFI, 1/08, 68/08, 35/11 – ORZPre75, 105/11 – Decision of the Constitutional Court, 10/12, 38/12, 56/13, 63/13 – ZS-K, 25/14 and 75/15.

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Order for reference, paragraph 5.

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Article 15(2) of Directive 2004/25 allows the Member States to introduce the right of squeeze-out in one or other of the situations described in that article. That option has made it possible to maintain the status quo that existed prior to that directive in national legal systems which already regulated such a right.

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Article 15(2)(a) and Article 15(3) of Directive 2004/25. If the offeree company has issued different classes of securities, Article 15(3) authorises the Member States to restrict the right of squeeze-out to the class in which the threshold laid down in the paragraphs stated has been reached.

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Article 15(2)(b) of Directive 2004/25. Article 15(3) also applies here.

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Such an interpretation could be supported by the fact that, following the failure of previous attempts to harmonise the area of takeover bids at the Community level, Directive 2004/25 only establishes minimum guidelines on the matter, in the form of common principles and some general requirements which Member States have to implement (see recitals 25 and 26). Thus, Member States may establish conditions in addition to those provided for in Directive 2004/25 (Article 3(2)) and, moreover, some provisions of that directive are simply optional (see Article 12).

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Order for reference, paragraphs 11 to 13.

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For comparison, see, for example, Article 9(1) of Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

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The comparison, in various languages, of the verb forms used in other provisions of Directive 2004/25 which also include presumptions (such as Article 2(2) and Article 5(4)) confirms that literal interpretation is not useful for the purposes of responding to the questions of the referring court.

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For example, in German (‘gilt’), Czech (‘považuje’), French (‘est presumée’), English (‘shall be presumed’) and Italian (‘è da considerare’).

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For example, in Spanish, ‘se presumirá’, for the first, and ‘se considerará’, for the second; in Dutch, ‘geacht’, for the first, and ‘aangenomen’, for the second. The judgment of 16 February 2017, IOS Finance EFC (C‑555/14, EU:C:2017:121, paragraph 28), attributes consequences to divergent linguistic formulations in relation to Article 7(2) and (3) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (OJ 2011 L 48, p. 1).

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Report of the High Level Group of Company Law Experts on Issues Related to Takeover Bids, of 10 January 2002 (‘the Winter Report’). The report was written by a high-level group of experts on company law, set up by the Commission to present proposals in relation to the objections raised in 2001, by the European Parliament, to the adoption of a thirteenth directive on company law concerning takeover and other general bids. In the explanatory memorandum for the proposal for a Directive of the European Parliament and of the Council on takeover bids, [COM(2002) 534 final] (OJ 2003 C 45 E, p. 1), of 2 October 2002, under the heading ‘General considerations’, it states that the Commission ‘[took] broad account of the recommendations made’ by the group of experts in its report. Two paragraphs further on, it specifies that ‘the proposal here follows the recommendations set out for the Commission in the Winter Report as regards … the introduction of a squeeze-out right (Article 14) and a sell-out right (Article 15) following a takeover bid.’

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See recommendation III.3 of the Winter Report, as well as pages 65 and 66 of that report. The report does not specify the conditions under which the presumption could be rebutted.

18Some Member States requested that it be stated explicitly that the presumption is rebuttable in nature and that ‘the courts or the competent supervising authority of each Member State should remain free to fix a different price where appropriate’: see Council Document No 15187/02, of 3 December 2002, Working Party on Company Law (Takeover bids), which reflects the results of the work at 20 November 2002. That request, supported by fewer delegations and limited to the supervisory authority, later remained for the presumption which applies in the case of a voluntary bid: see, for example footnote 45 of Council Document No 15089/03, of 21 November 2003, which contains a consolidated version of the Presidency compromise proposal regarding the draft directive.

19Judgment of 30 April 2025, Celní jednatelství Zelinka (C‑330/24, EU:C:2025:296, paragraph 19), and the case-law cited.

20In some language versions, the text of the article supports such an interpretation, by using the same verb for both: see footnote 14 above.

21The presumption which applies when the takeover bid was voluntary rests on the idea that the price was sufficiently high and competitive in the market to persuade the percentage of shareholders required by Article 15(5), second subparagraph, of Directive 2004/25. However, if the offeror already had a holding very close to that threshold, very few shareholders would have to offer their securities in order to exceed it. In my opinion, the reliance placed by the European legislature on the acceptance of the price by those who sold in the voluntary takeover bid justifies an inversion of the burden of proof relating to the fairness of that price at the time when the right of squeeze-out is exercised, but it does not seem to be a sufficient legal basis for an irrebuttable presumption in relation to such fairness.

22In some language versions, the text of the article would support such a view, by using different verbs for each presumption: footnote 15 above.

23For mandatory takeover bids, that method is, moreover, the only permissible method: judgment of 10 December 2020, Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:1014; ‘the judgment in Euromin Holdings (Cyprus)’), paragraph 47.

24See recital 9 of Directive 2004/25. The commonality of those rules is twofold: for all of the Member States and for all holders of securities – of the same class – in the offeree company. It also implies a unified approach to the setting of the price. Other methods may only be used by virtue of the power to adjust the price established according to the common criterion: the judgment in Euromin Holdings (Cyprus), paragraph 48.

25Article 5(4), first sentence, of Directive 2004/25. The fair price is not, therefore, necessarily the same as the current market price of the shares. Each Member State specifies the exact duration of the reference period.

26The German, Czech, Dutch and Greek texts are examples of the former; the Spanish, French, English, Italian, Polish and Portuguese texts are examples of the latter.

27Article 5(4), first subparagraph, second sentence, of Directive 2004/25. The higher price becomes the fair price for the purposes of the takeover bid.

28Directive 2004/25 acknowledges that possibility in Article 5(4), second subparagraph, when it authorises the Member States to give their supervisory authorities the power to adjust the price established according to the common method. That power must always be exercised respecting the guiding principles set out in Article 3(1) of the directive.

29The list is not exhaustive. See, the judgment of 20 July 2017, Marco Tronchetti Provera and Others (C‑206/16, EU:C:2017:572, paragraphs 31 and 38); and the judgment in Euromin Holdings (Cyprus), paragraph 45.

30As Advocate General Kokott stated in her Opinion in Euromin Holdings (Cyprus) (C‑735/19, EU:C:2020:697, point 47), ‘… the assumption that the highest price paid by the offeror is an equitable price is only justified where there is a properly functioning market.’ In point 37 of the same Opinion she stated: ‘In my view, that rule [the rule laid down in Article 5(4), first subparagraph, of Directive 2004/25] is based on the premiss that a properly functioning capital market establishes a share price that neither under- nor over-values the undertaking and thus reflects the true value of a share in the undertaking concerned, the European legislature having been guided here by the model of an efficient, transparent and liquid market.’

31The situations in which the intervention of the supervisory bodies is possible and the criteria which those bodies have to follow must be clearly specified by the Member States. Article 5(4), second subparagraph, of Directive 2004/25.

32The judgment in Euromin Holdings (Cyprus), paragraph 86.

33The judgment in Euromin Holdings (Cyprus), paragraph 88.

34The judgment in Euromin Holdings (Cyprus), paragraph 89.

35The Winter Report, p. 61, puts it as follows: ‘There is indeed a general and public interest in having companies efficiently managed on the one hand, and securities markets sufficiently liquid on the other hand.’

36The Winter Report, pp. 60 and 61, referred to the costs arising from the inability of the majority shareholder to fully integrate the acquired company into its group, in terms of activities, use of assets, organisation and finance. Other costs would be direct, connected with having to maintain the infrastructure for holding general meetings of shareholders with the participation of minority shareholders (notices, meeting venue, disclosure, etc.) and in relation to other rights exercisable by minority shareholders (requests for information, right to file a suit against the company, its directors, etc.). Lastly, it pointed to the risk of minority shareholders abusing their rights, or threatening to do so, only to obstruct the development of the company’s business and induce the majority shareholder to make concessions.

37The Member States may provide that cash must be offered as an alternative in all cases: see Article 5(5), fourth subparagraph, and Article 15(5), first subparagraph, of Directive 2004/25.

38Article 15(5), first subparagraph, of Directive 2004/25.

39In principle, an equitable price. See, however, points 55 to 59 of this Opinion.

40Article 15(5), third subparagraph, of Directive 2004/25.

41That stage, following the takeover bid, is governed by the principle of equal treatment of holders of securities of the same class, which Article 3(1)(a) requires in the application of the whole of Directive 2004/25. Consequently, the financial logic of the takeover bid, that is, the division of the control premium between all of the shareholders, also leads to this point.

42Putting at risk the takeover bid itself, in whose success they nevertheless have an interest. Setting the price in that way also makes it possible to avoid the so-called ‘lemon’s problem’, associated with information asymmetries, which would occur, in particular, if the price were set on the basis of the current market value of the shares.

43The intervention of the courts is not usually compatible with the time frames of takeover bids: it impedes the course of the bid and creates uncertainty regarding its outcome. The preoccupation of certain Member States with a foreseeable increase in litigation, in particular in relation to the price of the bid, resulted (in addition to the imposition of a single method for setting the price for a mandatory takeover bid in Article 5(4), first subparagraph) in Article 4(6) of Directive 2004/25. The right established in Article 15 is exercised at a time after the takeover bid has ended. Nevertheless, that preoccupation could be extended to that later stage, given its brevity and that it enables the offeror to complete the transaction begun with the takeover bid.

44It is worth noting, moreover, that the interpretation of Article 15 of Directive 2004/25 is also applicable to Article 16 (the right of holders of the securities who did not accept the bid to require the offeror to buy those securities at a fair price). A tendency towards opportunistic behaviour is more likely in the context of that article, given the obligation to purchase imposed on the majority shareholder.

45Situations, therefore, in which the highest price paid by the offeror in the takeover bid is not the price that would have been established in a properly functioning capital market.

46I have noted that the conferral of that power is optional. Member States may have opted for another mechanism for ensuring the fairness of the price paid in the takeover bid, or they may have left the matter in the hands of the courts.

47Judgment of 20 July 2017, Marco Tronchetti Provera and Others (C‑206/16, EU:C:2017:572), paragraphs 32, 33 and 37 to 46, and the judgment in Euromin Holdings (Cyprus), paragraphs 51 to 53. Applying that case-law, see the order of 24 October 2017, Hitachi Rail Italy Investments (C‑655/16 and C‑656/16, EU:C:2017:811).

48Paragraph 29 et seq. of the Commission’s written observations. In paragraph 38 of those observations, it argues that the presumption at issue could not have the effect of violating the guarantee of fair compensation provided for in the second sentence of Article 17(1) of the Charter.

49Judgments of the Federal Constitutional Court of the Federal Republic of Germany of 7 August 1962, Feldmühle Fall (1 BvL 16/60); of 23 August 2000, Moto-Meter (1 BvR 68/95 – 1 BvR 147/97, ECLI:DE:BVerfG:2000:rk20000823.1bvr006895); and of 30 May 2007 (1 BvR 390/04, ECLI:DE:BVerfG:2007:rk20070530.1bvr039004); of the Constitutional Court of the Portuguese Republic of 26 November 2002, No 491/02; of the Constitutional Court of the Czech Republic of 27 March 2007, Pl. ÚS 56/05; of the Constitutional Court of the Republic of Slovenia of 1 February 2024, Up-558/20-25; and of the Court of Cassation of the French Republic of 29 April 1997, 95-15.220.

50Judgment of 5 May 2022, BPC Lux 2 and Others (C‑83/20, EU:C:2022:346, paragraphs 39 to 41), the latter paragraph citing the judgments of the European Court of Human Rights (‘ECtHR’) of 20 September 2011, Shesti Mai Engineering OOD and Others v. Bulgaria (CE:ECHR:2011:0920JUD001785404), § 77; of 21 July 2016, Mamatas and Others v. Greece (CE:ECHR:2016:0721JUD006306614), § 90; and of 19 November 2020, Project-trade d.o.o. v. Croatia (CE:ECHR:2020:1119JUD000192014), § 75. See also the judgments of the Court of Justice of 1 August 2022, HOLD Alapkezelő (C‑352/20, EU:C:2022:606, paragraphs 72 and 73), and of 5 September 2024, Novo Banco and Others (C‑498/22 to C‑500/22, EU:C:2024:686, paragraph 109).

51The Court of Justice has held that, by providing that ‘no one may be deprived of his or her possessions’, the second sentence of Article 17(1) of the Charter does not cover solely the taking of property for the purpose of transferring it to a public authority: judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land) (C‑235/17, EU:C:2019:432, paragraph 84).

52Judgments of 1 August 2022, HOLD Alapkezelő (C‑352/20, EU:C:2022:606, paragraphs 70 and 71), and of 5 September 2024, Novo Banco and Others (C‑498/22 to C‑500/22, EU:C:2024:686, paragraph 108).

53ECtHR, judgment of 15 November 1996, Katikaridis and Others v. Greece (CE:ECHR:1996:1115JUD001938592).

54ECtHR, judgment of 29 March 2006, Scordino v. Italy (CE:ECHR:2006:0329JUD003681397).