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The takeover battle Volkswagen/Porsche: the Piëch-Porsche clan–family clan acquires a majority holding in Volkswagen

2015; Oxford University Press; Volume: 10; Issue: 3 Linguagem: Inglês

10.1093/cmlj/kmv028

1750-7227

Thomas M. J. Möllers,

Law and Political Science

Volkswagen AG, a stock corporation under German law, currently owns 13 brands and sells about 5 million cars yearly; Porsche AG sells about 100,000 cars per annum. In this context, it is all the more surprising that Porsche intended to take over Volkswagen in 2008—David fought Goliath. The details of this takeover battle have rarely been discussed so far, which is particularly remarkable since the takeover attempts are the subject of almost 30 trials. Despite its economic relevance, legal scholars have largely neglected the relevant legal issues. This article intends to give an introduction to the complex case and shows its relevance to six different fields of law. In order to grasp the case’s legal complexity, the facts must be recounted. Since the 1950s, the Volkswagen Corporation has had exceptional status in Germany due to the so-called ‘Volkswagen Law’, which granted various privileges to the State of Lower Saxony. The law was challenged in 2004 when the European Commission initiated an infringement procedure (Article 258 paragraph 2 TFEU) against Germany. In accordance with its prior ‘Golden Shares’ jurisprudence,1 the Court, as expected, declared that the law indeed restricted the free movement of capital (Article 63 TFEU). Since 2005, Porsche AG continuously bought VW shares, which were under-priced.2 In 2007, Porsche owned more than 30 per cent of VW shares, thus passing the threshold relevant for making a mandatory offer to the other shareholders. This offer, required by the Germany Securities Acquisition and Takeover Act (Wertpapiererwerbs- und –übernahme-gesetz, or WpÜG), received little interest from investors as Porsche did not offer a takeover premium to shareholders. In May 2007, Porsche’s company structure was changed, splitting the former Porsche AG in two: the newly constituted Porsche AG, owned by Porsche SE, and Volkswagen AG, charged with the operative business. Porsche SE manages the shares.3 SE also owns the VW shares mentioned above.