On 20 March 2026, GE BaFin issued supervisory notice re C-864/24 EU ruling.
- GE BaFin issued Supervisory Notice 02/2026 re impact of ECJ ruling of 12 February 2026.
- Case C-864/24 dealt with interpretation of S34 of Securities Trading Act (WpHG) and S30 of Securities Acquisition and Takeover Act (WpUG).
Overview
- The supervisory notice provides guidance on GE BaFin’s administrative practice in the future interpretation of the relevant provisions of WpHG and WpÜG.
- ECJ ruled wording of S34.2 of WpHG concerning allocation of control (AiC) violates EU law insofar as it goes beyond the wording of the Transparency Directive (TD).
- Stricter allocation rule deviating from the TD is only permissible if directly related to takeover bids, mergers, other transactions affecting companies' ownership/control.
- The ruling affects attribution provision of AiC, all attribution provisions of S34 WpHG insofar as they relate to reporting obligations on voting rights and go beyond TD rules.
Key Aspects
- GE BaFin will, with immediate effect, interpret and apply S34.2 WpHG to the effect that attribution within meaning of TD only exists if vote on consensual exercise of voting rights is based on agreement that obliges both parties to pursue a common long-term policy regarding management of the issuer in question (art 10a) TD).
- GE BaFin will no longer apply attribution provisions of S34.1, sentence 1, n3 and 5 WpHG, as no corresponding attribution provision is provided for in the TD.
- In this respect, administrative practice presented in GE BaFin issuer guidelines and FAQs on transparency obligations pursuant to S33 et seq. WpHG no longer applies.
- GE BaFin to apply, interpret WpÜG rules on attribution of voting rights as it does now.
- GE BaFin assumes WpÜG rules on voting rights attribution are compatible with EU law.
- EU Court pointed out that, on basis of art 3.1a) subpara 4 point iii of TD, GE legislature is authorized to enact stricter rules on attribution of voting rights than those in the TD.
- That, insofar as they concern application of legal and administrative provisions in connection with takeover bids and, in this context, ownership or control of companies.
- Requirements of Takeover Bids Directive 2004/25 on attribution of voting rights do not preclude application of S30.2 of WpÜG in its current version.
Addressees
- Notice addressed to all entities subject to reporting requirements under S33 et seq. of WpHG, includes all natural or legal persons or partnerships with legal capacity who acquire or dispose of voting rights in listed companies within the meaning of the cited provisions, or who intend to do so.
- Also addressed to market participants who wish to conduct procedures under WpÜG in conjunction with WpÜG Offer Regulation, where applicable, Stock Exchange Act.
Effectiveness
- Notice effective immediately, until S34 parags 1-2 WpHG amended in line with EU law.
