Jens Weidmann, who chairs Commerzbank's supervisory board and formerly ran the Bundesbank, has called for a review of German takeover law. His case rests on a set of numbers about who actually sold.
Of the roughly 73 percent of Commerzbank shares that could have been tendered to UniCredit, fewer than 18 percent were tendered, Weidmann said. Institutional and retail investors accounted for less than 3 percentage points of that, with the remainder coming from banks linked to UniCredit.
Read those two sentences together and the picture is unusual. Genuine outside shareholders, the people the offer was addressed to, handed over under 3 percent of the eligible stock. Something on the order of fifteen points came from institutions in the acquirer's own orbit.
"UniCredit was thus able to achieve a majority with a financially unattractive offer without paying an appropriate control premium," Weidmann said. UniCredit did not immediately respond to a request for comment, and its account of the same events is not represented here.
The two things that happened
It helps to separate them, because the complaint only makes sense once they are apart.
The first is stake building. UniCredit accumulated its position gradually, reaching 48 percent, a level the report describes as sufficient to determine shareholder resolutions. Commerzbank's campaign against the takeover faded in July as that stake grew.
The second is the public offer, which is the part that drew almost nothing. The offer period has now ended, though the deal is not fully settled: regulatory approvals are still required before UniCredit can take possession of the tendered shares.
Weidmann's argument is not that no offer was made. It is that the offer could be unattractive and the outcome still be achieved, which he treats as evidence that the rules are not doing the work they are supposed to do.
Why a control premium normally exists
An acquirer buying control usually pays more than the market price, and the reason is structural rather than sentimental. Once one holder can determine outcomes, the remaining shareholders own a different asset from the one they held before: a minority stake in a company whose decisions are made by somebody else. The premium compensates them for that change, and the prospect of having to pay it is what forces a bidder to negotiate rather than simply accumulate.
Germany, like most European jurisdictions, requires a bidder crossing a control threshold to make an offer to all remaining shareholders at a regulated minimum price. The mechanism plainly operated here, since an offer was made and an offer period ran. The complaint is about what it produced.
Why 48 percent is enough
The arithmetic is dull and it decides everything. A shareholder meeting is settled by votes cast, not by shares in issue, and turnout is never complete. When a substantial share of the register does not vote, a holder of 48 percent controls a clear majority of the votes actually present.
This is not a German peculiarity, and it is why "control" in practice arrives well below 50 percent. It is also why a threshold written as a fixed percentage of shares can be crossed in economic terms before it is crossed in legal terms.
The government's stake
The German federal government still holds shares acquired when it rescued the bank during the financial crisis. Weidmann's position on it is two-sided. "The stake was part of a rescue measure, so the federal government should eventually withdraw," he said, while arguing that for now it should be retained to "actively represent the interests of Germany as a business location."
That is a politically convenient stance for the chair of a target, and it should be read as one. It is also a coherent one: a rescue holding is not meant to be permanent, and the moment of a contested change of control is an odd time to sell.
What is actually at stake
Whether German law changes is a question for Berlin, and nothing in a supervisory board chair's remarks obliges anyone to act. The more portable lesson is about how control moves in European banking, which has spent a decade being told it needs to consolidate and has produced very few completed cross-border deals.
If control can be assembled at 48 percent, through gradual accumulation, with an offer that outside shareholders decline in overwhelming numbers, then the next bidder in Europe has a template. Whether that is consolidation working or protections failing depends on which side of the register you sit on.
