Deposit return scheme operators are actively seeking to attract producers to their schemes. The reason is obvious: more producers and more packaging placed on the market mean greater revenue from producer fees and, consequently, higher profits for the operator.<\/p>\n
Operators encourage producers to participate not only as customers but also in the ownership structure as shareholders. The producer then becomes an entity that, in addition to paying producer fees:<\/p>\n
In return, producers expect influence over how the operator functions, including expenditure, development priorities and management. In practice, however, an operator usually having several shareholders is reluctant to grant special rights to individual shareholders, especially minority shareholders.<\/p>\n
Minority shareholder status need not automatically mean having no influence over the operator\u2019s activities. A producer can use legal instruments enabling it to participate in decisions about the deposit return scheme. The most important include:<\/p>\n
The operator is a joint-stock company in which shareholders have no individual right of inspection. Oversight is exercised by the supervisory board, whose responsibilities include supervising the management board\u2019s actions. It is therefore worth securing the producer\u2019s right to appoint its own representative to that board. However, as a rule, inspection and supervisory powers over the operator are exercised by the supervisory board in corpore<\/em>, rather than its individual members. In practice, this requires cooperation by all or part of the supervisory board, which is often difficult or even impossible. Moreover, information obtained by supervisory board members is confidential and cannot be passed to shareholders.<\/p>\n Given this model of oversight and inspection by the supervisory board, it is crucial to ensure that the management board regularly provides producers with information about the operator\u2019s current position, for example in monthly reports, and gives them access to relevant documents, particularly financial records.<\/p>\n It is also important that the operator\u2019s management board obtain minority shareholders\u2019 approval before making key decisions. This mechanism can be introduced by extending the list of actions requiring approval by the general meeting, expressed by a qualified majority.<\/p>\n Particularly sensitive decisions that should be subject to such control include:<\/p>\n It is also worth ensuring that producers have a real say in who joins the operator\u2019s owners. A priority right to acquire shares being sold can serve this purpose. A shareholder intending to sell must first offer its shares to the other shareholders. Only if they do not exercise their right can the shares be sold to an outside entity.<\/p>\n If exercised in proportion to existing shareholdings, this priority right also minimises the risk of a sudden and adverse change in the operator\u2019s ownership structure.<\/p>\n To preserve the ownership structure and prevent dilution of minority shareholders, it is also worth ensuring that any funding through an increase in share capital respects pre-emption rights. These enable shareholders to subscribe for new shares in proportion to their existing holdings.<\/p>\n Because producers must provide the operator with extensive information about packaged products placed on the market, while the operator\u2019s shareholders are competitors, it is crucial to ensure that the operator neither allows this information to be exchanged between shareholders nor makes it available to other shareholders.<\/p>\n\n
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