Following a sanction imposed by the Autorité des marchés financiers (AMF), the Paris Court of Appeal has referred the matter to the Court of Justice of the European Union (CJEU) to clarify the interpretation of the concept of action in concert in the context of a takeover bid. Legal commentary by Frank Martin Laprade, avocat à la Cour, partner at Jeantet, associate professor at Université Paris Saclay and director of the DU Droit de la Bourse et des sociétés cotées.

In a ruling handed down on 18 December 2025[1], The Paris Court of Appeal referred three questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether the AMF can extend the traditional definition of concerted action set out in Article 10 of the Transparency Directive, particularly in the context of a takeover bid.

According to this text, the threshold crossing notification requirements also apply to a natural or legal person who has the right to acquire, transfer or exercise voting rights held by a third party with whom that person has entered into an agreement which obliges them to adopt, by concerted exercise of the voting rights they hold, a lasting common policy with regard to the management of the company in question.

In this case, the Enforcement Committee of the Autorité des Marchés Financiers (AMF) ruled that ’.« an action in concert is established between Dôm Finance and Mr Burrus until 3 July 2019 and then, from 4 July 2019, between Dôm Finance, Mr Burrus and the companies in the AFI ESCA group[2]»This was in the light of the fact that the statement of objections had found that the defendants had acted in concert in order to build up a sufficient position in April's shares to block the proposed squeeze-out planned by CVC Capital Partners.

As a legal scholar with a close interest in the concept of action in concert[3], We have already expressed our disapproval of the AMF's decision to impose sanctions, which was unfortunately upheld by the Conseil d'Etat in the appeal lodged by the management company Dôm Finance, because it is based on the (false) idea that a company's listing is the result of its management.[4].

We are therefore curious to know what the CJEU's opinion will be, but it is not certain that an answer which - by any chance - authorises the AMF to depart from the text of the Transparency Directive, on the pretext that the listed company in question (April) was at the time the target of a takeover bid, would be sufficient to provide a legal basis for convicting the respondents.[5].

The statements of objections indicated that from 22 March 2019 at the latest, Mr Burrus could have organised a concerted action«.« initially involving the Dôm Performance Active, represented by the management company Dôm Finance »and that from 3 July 2019, this concert would have been extended to the companies in the AFI ESCA group over which Mr Burrus also had control.[6]

It is therefore clear that, at the outset, it was the fonds commun de placement (FCP) - defined under French law as a «mutual fund" - that was responsible for the management of the fund.« entity »a «legal entity» without legal personality - which was supposed to be part of an action in concert with Mr Burrus (controlling shareholder of his management company) justifying that "HIS" shares and voting rights be assimilated to those of the other concert parties, pursuant to Article L 233-9 of the French Commercial Code.[7].

But if the initial version of the Transparency Directive[8] made it possible to impose reporting obligations in respect of the crossing of thresholds on all «listed companies".« entities »In the current version, only «holders of shares» with legal personality are concerned, who could - if necessary - act in concert with natural persons (Mr Burrus) or legal entities (the companies of the AFI ESCA group).[9], This was not the case with the FCP.

It follows that the French provisions, under which « The management company is required to make the declarations stipulated in Articles L. 225-126 and L. 233-7 of the Commercial Code, for all shares held by the mutual funds it manages. "[10], The Transparency Directive, as amended in 2013, Article 3 of which only authorises such overruns in order to apply the rules on takeover bids.[11].

This is why the conventionality of these provisions, which derogate from ordinary law - bearing in mind that, like the latest versions of the Transparency Directive, articles L 233-7 et seq. of the French Commercial Code only deal with «public limited liability companies" - must be reviewed.« people »and not« entities »This is not the case with the disclosure requirements for transactions carried out during takeover bids by all «listed companies".« persons or entities »These are contained in articles 631-46 and 47 of the AMF General Regulation.

In any event, an action in concert - within the meaning of Article L 233-10 of the French Commercial Code - only concerns « PEOPLE who have entered into an agreement with a view to acquiring, disposing of or exercising voting rights, in order to implement a common policy vis-à-vis the company [...]», which means that a mutual fund cannot be included on the basis of the shares it holds in the capital of a listed company.

The fact that the voting rights corresponding to the shares held by a mutual fund may be exercised by its management company (a legal entity) does not change anything, because French law does not allow the aggregation - contrary to the Transparency Directive - of the voting rights that a person may exercise«.« as APPLICANT and as it sees fit in the absence of specific instructions from the holders of shares »or voting rights which « can be exercised »by a company controlled by another person.

In fact, the wording of Article L 233-9 of the French Commercial Code differs (slightly) from that of Article 10 of the Transparency Directive, which it was intended to transpose.« are treated in the same way as the shares or voting rights referred to in I of Article L. 233-7 [...] Shares or voting rights held by companies controlled by this person within the meaning of article L. 233-3 »and« The voting rights that this person may freely exercise by virtue of a PROXY in the absence of specific instructions from the shareholders concerned »This is not the case for the FCP's management company...

Furthermore, even if the French provisions were to be interpreted (broadly) «in the light of» those of the Transparency Directive - even though they are subject to criminal penalties[12] - the fact remains that Article L 233-9 of the French Commercial Code states (expressly) that «II. The following shall not be treated as shares or voting rights referred to in I of Article L. 233-7 [those of M Burrus]  Shares held by [UCITS] managed by a portfolio management company controlled by that person within the meaning of Article L. 233-3 "

In these circumstances - and quite apart from the (interesting from a theoretical point of view) question of the CJEU's interpretation of the concept of acting in concert during a takeover bid - one really wonders how the AMF (with the approval of the Conseil d'Etat) was able to impose such financial penalties on the respondents, accused of having acted in concert with the management company of the FCP, the latter being the (sole) «owner» of the shares which were aggregated with their own, without any question of the exercise of voting rights within April?

[1] RG n°22/15396 https://www.courdecassation.fr/decision/6945248d75782d5f06b1b269 

[2] https://www.amf-france.org/fr/sanctions-transactions/decisions-de-la-commission-des-sanctions/san-2022-09  (§ 69)

[3] F Martin Laprade, Concert et contrôle, Plaidoyer en faveur d'une reconnaissance de l'action de concert par le droit commun des sociétés, Coll. Pratique Affaires, Editions Joly (2007) ; Action de concert, Actes Pratiques et ingénierie sociétaire, n°173, Septembre 2020 - Formulaire AMF de déclaration de franchissement de seuil (commentary in collaboration with M. Robin) ; Action de concert, Juris-classeur Sociétés, Traité, Fasc. 2135 (MAJ 2025)

[4] F Martin Laprade, When the Conseil d'Etat becomes an "expert" in stock market law... note under CE 29 May 2024, Avis d'expert - Finascope.fr - 19 June 2024

[5] Advised by Cabinet Jeantet as part of the AMF procedure

[6] https://www.amf-france.org/fr/sanctions-transactions/decisions-de-la-commission-des-sanctions/san-2022-09 (§10)

[7] Article L 233-9 of the French Commercial Code: « I.- The shares or voting rights referred to in I of Article L. 233-7 are deemed to be : [...] 3° Shares or voting rights held by a third party with whom that person is acting in concert "

[8] Directive 2001/34/EC of 28 May 2001, Article 85: « 1. Member States shallThis Chapter shall apply to natural persons and legal entities governed by public or private law which acquire or dispose of, directly or through an intermediary, a holding which meets the criteria laid down in Article 89 (1) and entailsIn the case of a change in the holding of voting rights in a company governed by their law, the shares of which are admitted to official listing on one or more stock exchanges situated or operating in one or more Member States.»

[9] Directive 2004/109/EC of 15 December 2004, Article 2 (Definitions): « 1. To the end(e) «shareholder» means any natural person or legal entity governed by private or public law which holds, directly or indirectly "

[10] Article L 214-8-9 of the Monetary and Financial Code

[11] Article 3(1a), fourth subparagraph, point (iii), of the Transparency Directive, as amended by Directive 2013/50/EU of 22 October 2013, « The home Member State may not subject a shareholder, or a natural or legal person referred to in Article 10 or 13, to requirements more stringent than those set out in this Directive, except for [...] apply the laws, regulations or administrative provisions adopted in respect of takeover bids [...]».»

[12] Article L 247-2 of the French Commercial Code « I.-East punishable by a fine of 18,000 euros if the chairmen, directors, members of the management board, managers or officers general managers of legal entities, as well as for natural persons, to refrain from fulfilling the information obligations to which that person is subject, pursuant to Article L. 233-7, by virtue of the shareholdings that it holds "