The takeover law returns to the spotlight after BBVA’s failed plan for Sabadell

BBVA leaves a message to the Spanish Government of the need to revise the law that regulates these operations. Specifically, it has been its president, Carlos Torres, who has called to rethink the regime of public acquisition offers (OPA) as a reflection after the failed purchase to take over Sabadell. “Throughout the process there have been certain articles of the regulations that are not clear enough and are subject to interpretations and ambiguities, in addition to the fact that there are certain situations that are not well covered,” he argued.

His opinion is not isolated in the sector. The CEO of CaixaBank, Gonzalo Gortázar, has also invited us to rethink the current legal framework in Spain for this type of operations, as he argues that it introduces a “significant uncertainty” to the consider the general interest only in certain cases. For this reason, he is in favor of undertaking a structural review of the law, but it should be done outside of this takeover bid.

The Council of Ministers gave its approval to the potential union last June, although it imposed a ban on merging for at least three years, extendable for another two years alleging reasons of general interest such as territorial cohesion, protection of workers or objectives of social policy such as financial consumer protection. The highest decision-making body of the Executive established this measure under the aforementioned Law for the Defense of Competition, which allows governments to intervene in a transaction when the CNMC extends its analysis to ‘phase II’ and in case of agreeing on commitments, as happened in this case.

The Government’s decision was not viewed favorably by the European Commission, which last July open an infringement file to Spain for it. In Brussels’ opinion, the laws used to evaluate and set new requirements for the OPA have violated several community rules, among others, those guarantee freedom of establishment and movement of capital, questioning the existence of a genuine interest in the Moncloa movement, since they believe that it would not be possible to raise the opinion of Power to the Ministry of Economy, Commerce and Business.

Specifically, it is the Law 15/2007 on Defense of Competitionwhich he believes should be used “correctly”; Law 10/2014 on the organization, supervision and solvency of credit institutions, as well as the capital requirements directive. Regarding these two, he demands a “quite profound change” considering that they give the department led by Carlos Corpus a “veto capacity” that could “undermine” the powers of the European Central Bank (ECB), with exclusive powers in this area and that has already shown its “non-opposition” to the potential union between BBVA and Banco Sabadell in September 2024.

This procedure has no direct impact on the takeover bid itself, so in no case has it interfered with the times, given that Brussels has focused on the adaptation of Spanish legislation to European Union law. This explains why the Community Executive will continue with the file. In fact, the Government has until October 29 to respond after the deadline extension in six weeks. The file was opened on July 17, so Spain had two months to send its allegations via letter.

After the extension is granted, the Economy prepares the documentation that must be presented in the coming weeks. Corps defended this Friday that said procedure is “fully compatible” with European legislation and that they are in conversations with the leading body by Ursula Von der Leyen. “We are in contact with the EC to give them all the necessary arguments in order to convey not only that the government’s actions are part of our regulations, but that our regulations are fully compatible with European legislation,” he stressed.

The request for this ‘extra’ period is a possibility that Brussels contemplates when the changes required are large-scale. If the Spanish Government finally chooses not to take a position, the European Commission may issue a reasoned opinion and, If necessary, refer the matter to the Court of Justice of the European Union for alleged violations of European Union Law.