The baskets, which the notification provisions refer to, are as follows:

1. sections 33 and 34 of the WpHG: notification obligation for direct and indirect holdings of voting rights attached to shares;
2. section 38 of the WpHG: notification obligation for direct and indirect holdings of instruments (financial instruments and other financial instruments) that allow the holder to acquire voting rights attached to shares;
3. section 39 of the WpHG: notification obligation for the aggregation of holdings of voting rights under sections 33, 34 and 38 of the WpHG.

In addition, the three baskets are no longer deemed to trigger separate notification obligation. In fact, if there is a notification obligation under sections 33, 38 or 39 of the WpHG, a disclosure is required for all positions if a threshold is triggered for one of the three baskets.¹ Ultimately, this results in greater transparency of equity interests, because all the holdings of a party subject to the notification obligation are revealed in a single notification, and at the same time the number of notifications is reduced.

In conjunction with sections 17 and 14 of the WpAV and the Annex to the WpAV, sections 33, 38 and 39 of the WpHG govern the conditions, deadline, contents and language of a voting rights notification. The nature and format of a voting rights notification are stipulated in conjunction with BaFin’s Voting Rights Notification Regulation (Stimmrechtsmitteilungsverordnung – StimmRMV). Electronic form has also been permitted for voting rights notifications since 30 October 2018.

Section 34 of the WpHG determines the cases in which voting rights attached to shares and owned by a third party are attributed to the party subject to the notification obligation, whereas section 36 of the WpHG provides exemptions from including voting rights when calculating holdings of voting rights.

Under section 37 of the WpHG, in the case of parent undertakings within the meaning of section 35 (1) of the WpHG, the ultimate parent undertaking can meet the notification obligations under sections 33, 38 and 39 of the WpHG by filing a single notification that has exemptive effect for all subsidiaries that are also subject to the notification obligation (group notification). Sections 42, 45 and 47 of the WpHG contain procedural requirements and section 44 of the WpHG contains provisions on the civil law consequences of violations of the notification obligation.

Section 127 (10) and (11) of the WpHG stipulate certain notification obligations for voting rights held as a result of changes in the law due to the TRL-ÄndRL-UmsG and the 1. FiMaNoG.

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