European Union: EuroResource--Deals And Debt - September 2012

Recent Developments

Europe—On 12 September 2012, the European Commission issued a proposal for an EU regulation which would confer upon the European Central Bank ("ECB") supervisory responsibility for all banks operating in the Eurozone.

The controversial proposal will transfer to the ECB a broad range of supervisory powers currently performed by national regulators, including far-reaching supervisory powers over Eurozone banks. This has caused concern among non-Eurozone member states that "back-door" supervisory powers will be exercised by the ECB in relation to non-Eurozone banks—particularly with respect to operations such banks conduct within the Eurozone. For investors, the proposals will likely change the dynamic of opportunities to acquire or sell bank assets in the Eurozone. The ECB's supervisory board responsible for exercising the oversight mandate will comprise representatives from EU member states and will be monitored by the Chair of the European Banking Authority and a member of the European Commission. Accordingly, bank mergers and acquisitions activity will be subject to scrutiny by a broader group of stakeholders than the relevant member state regulator. The target date for implementation of the new supervisory regime is 1 January 2013 (in line with the target date for implementation of the Basel III proposals in the EU). However, in recognition of the time it will take to prepare for the supervision of banks across 17 nations, it is currently anticipated that the ECB will not assume in full the tasks conferred upon it until 1 January 2014.

The UK—In a pair of recent cases involving challenges to noteholder resolutions by minority investors whose rights were affected by majority noteholders' binding decisions, the UK High Court for the first time attempted to establish the limits of acceptable practice in the context of consent solicitations. In Azevedo v Imcopa [2012] EWHC 1849 (Comm), the High Court as a matter of first impression directly considered the validity under English law of a "consent payment"—a payment of cash or other consideration by the issuer to noteholders in exchange for noteholder consent to amend the existing terms of the notes. The Court held that consent payments are valid if openly disclosed and offered to all noteholders on an equal basis prior to any noteholder meeting. In Assénagon Asset Management S.A. v Irish Bank Resolution Corporation Limited (formerly Anglo Irish Bank Corporation Limited) [2012] EWHC 2090 (Ch), the High Court ruled that an "exit consent"—a deemed acceptance of a resolution issued in connection with an exchange offer—that was approved by an extraordinary resolution of noteholders was oppressive and unfair to minority noteholders because, among other things, it was unlawful for the majority to vote in favour of a resolution which effectively expropriated the minority's rights for nominal consideration. A more detailed discussion of the rulings can be found at

Italy—On 3 August 2012, the Italian Parliament approved Italian law decree No. 83 of 22 June 2012 (the "Decree") on a final basis. The decree introduces significant amendments to the Italian Insolvency Act designed to reform the bankruptcy system by increasing its efficiency and facilitating the reorganization of distressed debtors. The general framework and key principles originally contained in the Decree remain unchanged, but in giving final approval to the amendments, Italian legislators have refined certain procedural elements and clarified other key aspects of the reforms. These changes include amendments to the automatic stay procedures in cases where an insolvency petition is filed solely to forestall a debtor's insolvency, new rules and procedures to govern voting on a plan of reorganization and new rules designed to encourage interim financing. Additional information concerning the reforms can be found in the 20 July 2012 edition of EuroResource.

Germany—On 12 September 2012, Germany's Federal Constitutional Court ruled that Germany could proceed with its contribution to the European Stability Mechanism ("ESM"), subject to certain conditions. The court rejected several applications for interim injunctions blocking Germany's President from signing laws approving the Treaty Establishing the European Stability Mechanism (the "ESM Treaty") and the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (the "Fiscal Compact"). By signing both laws—which were passed by the German Bundestag and the Bundesrat in June 2012—President Gauck fulfilled a precondition for the German ratification of the ESM Treaty and the Fiscal Compact. Although the court denied the applications for provisional relief, it held that the ESM Treaty may be ratified only if the court is provided with assurance under international law that: (i) Germany's liability is limited to its share of approximately €190 billion in the authorized capital stock of the ESM, and that the ESM Treaty will not be construed to establish greater German payment obligations without the consent of the German parliament; and (ii) the provisions of the Treaty concerning the inviolability of the documents of the ESM and the professional secrecy of all persons working for the ESM do not prevent disclosure of such information to the Bundestag and the Bundesrat. The ruling clears the way for the establishment of the ESM.


Jones Day is advising OrthoHelix Surgical Designs, Inc. ("OrthoHelix") in connection with the $135 million acquisition of OrthoHelix by Tornier N.V. ("Tornier"), a global medical device company headquartered in Amsterdam, The Netherlands focused on providing surgical solutions to orthopaedic extremity specialists. OrthoHelix, based in Medina, Ohio, U.S., is a medical device company developing a comprehensive line of implants and instruments for use in small bone reconstructive surgery. The addition of OrthoHelix is expected to more than double Tornier's lower extremity revenue and allow Tornier to increase its focus on foot and ankle surgeons. OrthoHelix will continue to operate under the OrthoHelix name and retain all of its product brand names in the market, and customers will continue to be served by OrthoHelix and its distribution partners. Central operations of the OrthoHelix business, as well as the company's 80 dedicated employees, will remain based in the U.S.

Jones Day is advising mobile telecom operator KPN Group Belgium SA before Belgium's Constitutional Court in its challenge to a law imposing an €180 million fee for the renewal of licenses to operate a 2G mobile network. KPN and other 2G mobile operators seek annulment of the law, which was passed by Parliament in 2010 as a result of the Belgian government's disagreement with a Court of Appeal ruling against the telecom regulator's process for renewing the licenses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions