No more perfect harmony – BaFin reacts to ECJ ruling on acting in concert and partially suspends rules on voting rights disclosure

On 20 March 2026, BaFin announced that, with immediate effect, it would no longer apply certain provisions on the attribution of voting rights with respect to the obligation to notify major holdings of voting rights in listed companies. This is in response to a ruling by the European Court of Justice dated 12 February 2026. This article describes the practical implications.

Obligation to disclose major holdings of voting rights

Under the German Securities Trading Act (WpHG), anyone who reaches, exceeds or falls below 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% or 75% of the voting rights in a company whose shares are admitted to trading on an organised market (such as the regulated market on a German stock exchange), must notify the company and BaFin and publish this notification. This is intended to ensure that the company and the capital market are informed at an early stage of a stakebuilding and a potentially imminent takeover bid. To prevent circumvention (also known as ‘creeping in’), voting rights from shares owned by other persons are attributed to the person subject to the disclosure obligation on the basis of detailed attribution criteria.

Mandatory offer following acquisition of control

The acquisition of a major holding of voting rights also triggers certain obligations of the acquirer of control over a listed company as set out in the German Securities Acquisition and Takeover Act (WpÜG). This so-called bidder must immediately disclose the holding of 30% or more of the voting rights and offer to purchase the shares of the company’s other shareholders in return for adequate consideration (so-called mandatory offer). Voting rights held by other persons are also attributed to the bidder. In this context, the criteria for attribution (usefully) correspond to those applicable to voting rights notifications under the WpHG.

Acting in Concert

The attribution criterion of a so-called ‘acting in concert’ is of particular significance. Under German law, the voting rights of persons with whom a shareholder subject to the notification requirement or a bidder coordinates his conduct with respect to a listed company on the basis of an agreement or otherwise are attributed to that shareholder or bidder. Agreements in individual cases are exempted. According to the wording of the law, acting in concert requires an agreement on the exercise of voting rights or collaboration with the aim of bringing about a lasting and significant change in the company’s business strategy in any other way.

European law requirements

The requirements of different European directives apply to the obligation to disclose major holdings of voting rights and to mandatory offers. Voting rights disclosures are regulated in the Transparency Directive, mandatory offers in the Takeover Directive. In Germany, these have been implemented into national law in the WpHG and the WpÜG.

The ECJ ruling of 12 February 2026

According to the ECJ ruling, a provision of member state law resulting in the attribution of voting rights where the holders of voting rights coordinate their conduct in relation to the issuer in a manner other than on the basis of an ‘agreement’ concluded between them is contrary to European law. An exception applies to attribution directly related to takeover bids, mergers and other transactions affecting the ownership structure or control of companies. This is because such far-reaching attribution of voting rights is not only not provided for in the Transparency Directive. Member States are in fact expressly prohibited from imposing stricter rules on voting rights disclosure than those laid down in the Transparency Directive. There are only a few exceptions to this principle of maximum harmonisation, for example in relation to additional notification thresholds, stricter substantive requirements for voting rights notifications or – as set out by the ECJ – in direct connection with takeover bids and comparable corporate transactions.

The BaFin supervisory notice of 20 March 2026

BaFin subsequently announced on 20 March 2026 that, with immediate effect, it would only apply the aggregation of voting rights in relation to voting rights disclosure obligations in the cases provided for in the Transparency Directive. Specifically, this means:

1. Voting rights will only be attributed on the basis of an ‘acting in concert’ if the holders of voting rights coordinate on the consensual exercise of voting rights on the basis of an agreement that obliges the parties to pursue a common policy regarding the management of the issuer in question over the long term. So far BaFin has understood the term ‘agreement’ to encompass any form of contract under civil law. It must be legally binding, but the specific form is not relevant. A verbal agreement is therefore sufficient if the parties wish to be bound by it.
2. BaFin will no longer apply further attribution criteria not provided for in the Transparency Directive. In this regard, BaFin cites

• Section 34(1) sentence 1 no. 3 WpHG (voting rights arising from shares transferred as collateral) and
• Section 34(1), sentence 1, no. 5 WpHG (voting rights arising from shares that may be acquired on the basis of a declaration of intent – so-called ‘option in rem’).

The supervisory practice set out in Module 2 of BaFin’s Issuer’s Guide and the BaFin FAQs therefore no longer applies in this respect.

By contrast, the supervisory practice regarding the attribution of voting rights in connection with the acquisition of control pursuant to Sections 29, 30 of the WpÜG and a mandatory offer to be made thereafter remains unchanged. This means that the previous grounds for attribution, including the previous broader concept of ‘acting in concert’, continue to apply here without change.

Consequences

As a result of the ECJ ruling of 12 February 2026, the relevant statutory provisions on the attribution of voting rights under the WpHG are no longer applicable until further notice. Therefoe, some of the circumstances under which holdings are aggregated for voting rights notification requirements under the WpHG and for the acquisition of control under the WpÜG now differ. This presents increased challenges for investors subject to notification requirements and for issuers.

The BaFin supervisory notice applies “until an amendment in line with European law” is made to the attribution provisions. A corresponding adjustment of the voting rights notification obligations by the German legislator should be adopted as soon as possible in order to eliminate the complexity resulting from the ECJ ruling. A corresponding adjustment of the attribution criteria under the WpÜG should also restore alignment between the provisions governing voting rights notifications and the acquisition of control. The Takeover Directive does not preclude this, as it merely provides for the linking of the control triggering a mandatory offer to a voting rights threshold, whilst leaving the specific level and method of calculation to the national law of the EU Member States.

Further information:

• BaFin supervisory notice of 20 March 2026 (only available in German)
• ECJ judgment of 12 February 2026 in Case C-864/24
• Transparency Directive: Directive 2004/109/EC of 15 December 2004, OJ L 390, 31 December 2004, p. 38 (Transparency Directive); amended in particular by Directive 2013/50/EU of 22 October 2013, OJ L 294, 6.11.2013, p. 13 (Transparency Directive Amendment Directive).
• Regarding the Takeover Directive: Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, OJ L 142, 30.4.2004, p. 12.