Acting in Concert and Notification of Major Holdings: the CJEU Requires, in Principle, an ‘Agreement’ and Closes off National Extensions

The concept of ‘acting in concert’ sits at the heart of European financial markets law: it conditions both the triggering of major-holding notification obligations and that of mandatory takeover bids. Yet its definition remains notoriously unstable, because it straddles two EU instruments pursuing distinct aims. In Adler (2021), the Court of Justice recognised that the notion is autonomous in each field. Under the Takeover Directive (2004/25/EC), it is read broadly, attentive to the economic reality of coordinated conduct, because the objective is to capture concerted acquisitions of control. Under the Transparency Directive (2004/109/EC, as amended by Directive 2013/50/EU), by contrast, it rests on stricter and more predictable requirements: a structured ‘agreement’ obliging the parties to adopt, through the concerted exercise of voting rights, a ‘lasting common policy towards the management of the issuer’ (Article 10(a)). That asymmetry is not a contradiction but the expression of each regime’s specific purpose.

In its Valora judgment of 12 February 2026, delivered on a preliminary reference from the German Bundesgerichtshof, the Court took a decisive further step. German law extended notification obligations to holders of voting rights who had merely coordinated their conduct towards the issuer ‘in another way’, the national courts having found such coordination without characterising any agreement between the parties. The Court held that Article 3(1a) of the Transparency Directive precludes such an extension in the absence of an ‘agreement’ within the meaning of Article 10(a), where that extension has no direct connection with takeover bids or other transactions affecting control. In my comment I argue that Valora effects a twofold tightening of the regime, on scope and on substance, with significant consequences for French law.

The first tightening concerns scope. The Court confirms and reinforces the normative autonomy of concerted action in transparency law: characterisation criteria drawn from takeover law cannot be imported, directly or indirectly, into the field of major-holding notifications. This flows from the logic of maximum harmonisation, which seeks legal certainty and uniformity and correspondingly limits the room left to national laws. The Court then reads the takeover-related derogation in Article 3(1a) strictly. A whole series of connections had been invoked to save the German provisions – that their aggregation mechanisms resembled those used in takeover matters, that they could apply during an offer period, that they belonged to a broader body of law including takeover rules. The Court rejected them all: neither similarity of purpose, nor possible application in a bid context, nor insertion within a wider normative framework suffices. What is required is a direct and specific link with rules that genuinely form part of takeover law. In effect, the Court establishes a demanding two-stage filter and neutralises any opportunistic or contextual extension of concerted action in transparency matters.

The second tightening concerns substance. Valora restores full force to the agreement as the necessary foundation of concerted action. Coordination of conduct – however lasting or organised – cannot constitute an autonomous category of concert. Crucially, the Court does not lapse into evidentiary formalism: it accepts that coordination between holders ‘may constitute evidence of an ‘agreement’’ for the purposes of Article 10(a). What it censures is the German courts’ substitution of factual coordination for an agreement. The distinction is between proving the agreement and dispensing with it. Parallel conduct, personal, shareholding or strategic links may all be taken into account, but only as indicia of a meeting of minds, never as a substitute for it. Concert in transparency law thus remains relational – founded on a concurrence of wills, not a mere convergence of behaviour.

These clarifications matter for French law. At first sight, French law appears better equipped than the German law censured in Valora: Article L. 233-10 of the Commercial Code expressly requires the persons concerned to have ‘concluded an agreement’, and maintains that requirement even in takeover matters. The difficulty lies elsewhere – in the object of that agreement. Article L. 233-10 departs from Article 10(a) on two essential points: it frames the aim as a ‘common policy in respect of the company’, a formulation less precise than the Directive’s ‘lasting common policy towards the management of the issuer’; and it extends the agreement beyond the concerted exercise of voting rights to their very acquisition or disposal. French case law has, moreover, read the notion broadly, capturing shareholder strategies concerning the holding or circulation of securities. The divergence therefore appears not merely interpretative but structural – a difference in the very architecture of the definition.

It is against this background that the Paris Court of Appeal, by judgment of 18 December 2025, moved away from the earlier logic of corrective ‘consistent interpretation’ and instead referred questions to the Court of Justice – including whether the ‘lasting common policy towards the management of the issuer’ must be understood strictly, as directly targeting the company’s governance and strategy, or whether an indirect effect (such as preventing a squeeze-out) suffices. My comment also explores a related question that Valora leaves open: whether, within the narrow interface that Article 3(1a) preserves, the broader national definition may legitimately be deployed where takeover law itself refers to it – a ‘functional dissociation’ in the reading of Article L. 233-10 depending on the field of application.

The broader lesson is that consistent interpretation has reached its limits. Maintaining in force a text whose wording is out of step with EU law, while judicially correcting its scope, shifts to the courts a burden of compliance that properly falls to the legislature, and feeds legal uncertainty. Given the stakes attached to acting in concert, Valora – together with the answers awaited from Luxembourg on the Paris reference – makes the case for legislative intervention to realign Article L. 233-10 and restore the intelligibility of positive law.

The full paper is available here.

Alain Pietrancosta is Professor at the École de Droit de la Sorbonne – University Paris 1.