«Acting in Concert» Within a Credit Institution: Some Thoughts on the Legal Notion and the Burden of Proof

With a specific regard to shareholder cooperation in credit institutions, this study focuses on the difference between «acting in concert» and «shareholder engagement», examining the relationship among shareholders, the effects deriving from such cooperation, and the related beneficiaries. If such difference is not precisely drawn, the over-reaching regulation of «acting in concert» would hinder the monitoring of management, reducing the enterprise value. Indeed, both acting in concert to sidestep legal obligations and exercising shareholder rights to monitor the management depend on shareholder cooperation. Under such a perspective, this study compares different EU legal notions of «acting in concert», as set out in the Transparency, Takeover Bids and Capital Requirements IV Directives. Then, it further examines the regulation of «acting in concert» in the Italian banking law, proposing for an amendment of the current legal and administrative framework. Alongside a broad legal notion of «acting in concert», the Italian banking system should clearly indicate which factors lead to the conclusion that the relevant shareholders are «acting in concert». In such a way, the Italian competent authority would speed up its supervision and develop a more consistent supervisory pratice, thus ensuring a legal and administrative framework allowing predictable decisions.