Trenta anni di OPA: riflessioni in tema di passivity rule e contendibilità in epoca post pandemica

The structural deficiencies of Italian corporate and financial law, already highlighted during the crisis of the early twenty-first century, have been accentuated and exacerbated due to the Covid-19 pandemic. The paper offers a view on takeover bids problems in this period of global crisis. It was highlighted that at the beginning, the Italian legislator did not use the possibility indicated in the European directive on takeover bids to make the most controversial institutions, such as the passivity rule or the breaktrough rule, optional. Following the world economic crisis, each single company was allowed to modulate the defensive measures to be taken in order to face a possible undesired takeover bid or, in any case, one that was not previously agreed on. Afterwards the legislator modified the provisions on the matter again: thanks to the last measure adopted, the passivity rule comes back into the special legislation, but each single company can repeal in part. Due to the interests involved, it seemed appropriate to verify whether the measures taken were proportionate to the goals to be achieved or if, instead, they were too burdensome for a market of corporate control willing to be contendible. Considering the Golden Power it was taken into account the risk to compromise also the free competition between undertakings, as one of the values of our system.