Issuer whose home country is the Federal Republic of Germany (sections 2 (13), 33 (4) of the WpHG)

Under section 33 (1) sentence 1 of the WpHG, the notification obligations under sections 33, 38 and 39 of the WpHG apply to issuers whose home country, as defined in section 2 (13) of the WpHG, is the Federal Republic of Germany.

Under section 2 (13) of the WpHG, the home country of an issuer is determined either by law or by a corresponding election made by the issuer. Under section 33 (4) of the WpHG, however, not all issuers whose home country may be the Federal Republic of Germany are covered by this definition; rather, where the provisions on changes in holdings of voting rights are concerned, the term “issuer” is limited to those issuers whose shares are admitted to trading on an organised market within the meaning of section 2 (11) of the WpHG.

Under section 2 (13) no. 1 of the WpHG, the Federal Republic of Germany is the home country of an issuer of shares if the issuer

1. has its registered office in Germany and its shares are admitted to trading on an organised market in Germany or in another EU or EEA country (section 2 (13) no. 1 a) of the WpHG), or
2. has its registered office in a third country (see section 2 (12) of the WpHG) and its shares are admitted to trading on an organised market in Germany or in another EU or EEA country, and if it has elected the Federal Republic of Germany as its home country under section 4 (1) of the WpHG (section 2 (13) no. 1 b) of the WpHG) or it fails to elect a home country (section 2 (13) no. 3 of the WpHG).

The election of a home country becomes effective when it is published under section 5 of the WpHG (section 4 (3) of the WpHG). In the event that no home country is elected, the catch-all clause (section 2 (13) no. 3 of the WpHG) immediately applies if the issuer has a choice regarding its home country but does not exercise it.

Party subject to the notification obligation

The term “party subject to the notification obligation” is legally defined in section 33 (1) sentence 1 of the WpHG. This states that a party subject to the notification obligation is any person who triggers a threshold that is relevant under sections 33, 38 or 39 of the WpHG. “Any person” means all natural persons and legal entities, regardless of their age and their legal form. A natural person’s nationality and place of residence, or the registered office in the case of legal entities, is not relevant in this regard. Accordingly, the persons addressed by the legislation may also be a foreign private shareholder resident outside Germany, a general (commercial) partnership (offene Handelsgesellschaft – oHG), a limited partnership (Kommanditgesellschaft – KG), a partnership for the professions (Partnerschaftsgesellschaft), a civil law partnership whose members may act in relation to third parties in the name of the partnership (BGB-Außengesellschaft) as well as legal entities organised under foreign law. The same applies to corporations organised under public law, such as the federal government, the Federal States (Bundesländer), and other countries. In the case of entities without legal capacity, it must be clarified in detail whether the entity is itself subject to a notification obligation. The decisive question is if and to what extent the entity itself carries rights and obligations or can sue or be sued in its own name, which is acknowledged, for example, for associations without legal capacity.

The decisive factor for the basic notification obligation under section 33 (1) of the WpHG is the holding of voting rights attached to shares owned¹ by the party subject to the reporting requirement. If a party is only authorised or empowered to exercise voting rights, it can only be subject to the notification obligation due to the attribution of voting rights under section 34 of the WpHG, but not directly under section 33 of the WpHG, as the voting rights are owned by the party.²

Mandatory standard form

Voting rights notifications under sections 33, 38 and 39 of the WpHG must be filed by using the standard form prescribed in the Annex to the WpAV. The mandatory standard form can be downloaded from BaFin’s website.³ The standard form covers all reportable holdings under sections 33, 38 and 39 of the WpHG and must be completed if the party subject to the notification obligation is affected by a notification obligation under sections 33, 38 and/or 39 of the WpHG. The form must always be completed in full, i.e. disclosures must also be made about holdings for which no notifiable threshold was triggered.

General contents of the standard form

The standard form has a specific structure: page 1 contains all information needed to capture the essential content of the notification, such as disclosures on the issuer and the party subject to the notification obligation, the reason for the notification and a comparison of the current and most recently notified holdings of voting rights, instruments and aggregated positions. There is no (longer any) need to disclose the triggered thresholds. Pages 2 and 3 contain more detailed information, such as the details of the individual holdings and disclosures of any group structures. Finally, the standard form includes an Annex for BaFin in which the details of the party subject to the notification obligation must be disclosed. Additional guidance on using the standard form can be found in the form available on BaFin’s website. Further support is contained in the online form and the explanatory FAQs.

Nature, form and language of the notification

The nature and form of a notification are governed by the StimmRMV, while the language of a notification is defined in section 14 of the WpAV.

As before, the party subject to the notification obligation must send the voting rights notification to both the issuer and to BaFin using the mandatory standard form. The requirement for simultaneous notification is satisfied if notifications are sent immediately one after the other.

Whereas in the past, notifications had to be sent to both BaFin and the issuer in writing or by fax, BaFin launched an electronic procedure on 30 October 2018 under which the party subject to the notification obligation can send its notification to BaFin electronically by using BaFin’s Reporting and Publishing Platform (“MVP”). If the party subject to the notification obligation does not wish to send its notification to BaFin through the MVP portal, it continues to be obliged to send it to BaFin either in writing or by fax (fax number: 0049 0228 4108 3119; address: Federal Financial Supervisory Authority, Division WA 22, Marie-Curie-Str. 24-28, 60439 Frankfurt am Main). Sending the notification by email with a (simple) electronic signature or a scanned signature is not sufficient.⁴

Regardless of the channel used to send the notification to BaFin, the party subject to the notification obligation is allowed to send its notification electronically to the issuer by email, provided that the issuer has not designated a specific procedure for this. A condition in all cases, however, is that the issuer receives also an XML dataset of the notification together with the notification.⁵ The aim of this requirement is to facilitate the publication of the notification and the transmission to the Company Register by the issuer.

The party subject to the notification obligation may elect to prepare the notification in German or English. The withdrawal of a notification must be made in the same manner.

In the case of complex scenarios such as group structures, overviews of the parent undertaking and its subsidiaries (group charts) and background information must be sent to BaFin together with the voting rights notifications, unless this information is already known to BaFin from previous notifications. If there are any doubts about the notification obligation, the party potentially subject to the notification obligation should contact BaFin in good time so that the matter can be clarified definitively. BaFin does not permit the submission of precautionary notifications.

Voluntary notifications

In principle, voluntary notifications are permitted provided that they add informational value for the market (e.g. in the case of a change of name that preserves the identity of the company or a change in legal form). However, “precautionary” voting rights notifications are not permitted.

“Voluntary group notifications” are not voluntary notifications in the sense described above; in these cases, the ultimate parent undertaking has not itself triggered a threshold and is therefore not itself a party subject to the reporting requirement but, under section 37 of the WpHG, its notification replaces mandatory disclosures by one or more of its subsidiaries that has or have in turn triggered a notification threshold. Such voluntary group notifications are not only permitted, but are expressly encouraged, because the safeguard continuity of the notifying party and provide an overview of the equity interests throughout the group, behind which the interest in changes in part of the group is secondary.

Time Limit for filing notifications

Without undue delay, at the latest within four trading days after a threshold has been triggered

Under section 33 (1) sentence 1 of the WpHG, the party subject to the notification obligation must send the notification without undue delay, i.e. without culpable delay (section 121 (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB); the notification must be filed at the latest within four trading days. Under section 33 (1) sentence 3 of the WpHG, the notification time limit begins when the party subject to the notification obligation learns or, in consideration of the circumstances, must have learned, that its percentage of voting rights has reached, exceeded or fallen below the relevant thresholds.

Threshold triggered due to acquisition/disposal: irrefutable presumption of knowledge on the second trading day after a threshold is triggered

There is an irrefutable presumption that the party subject to the notification obligation learns of this two trading days after reaching, exceeding or falling below the thresholds referred to (section 33 (1) sentence 4 of the WpHG).

However, this does not effectively prolong the notification deadline to six trading days. Rather, the deadlines referred to are maximum deadlines and, in the case of a regular acquisition or disposal transaction, BaFin assumes in practice that a notification is reasonable and possible within four trading days of triggering a threshold.

Threshold is triggered due to a change in the total number of the issuer’s voting rights: publication under section 41 of the WpHG is decisive

If a threshold is triggered by a party subject to the notification obligation because of a change in the total number of the issuer’s voting rights (e.g. dilution and a holding falls below the threshold), section 33 (1) sentence 5 of the WpHG applies. By way of derogation from sentence 3, the period begins as soon as the party subject to the notification obligation has (positive) knowledge that the threshold has been triggered, at the latest on publication by the issuer of the change in the total number of voting rights (section 41 (1) of the WpHG). Under section 41 (1) of the WpHG, the issuer must generally notify the change in the total number voting rights at the latest after two trading days; by contrast, if new shares out of a contigent capital increase are issued, the publication is normally made at the end of the month in which the new shares were issued (section 41 (2) of the WpHG).

Calculation of the time limit

To calculate the time limit, the day on which the event triggers the deadline (party learns or must have learned) is disregarded. Trading days are all calendar days other than Saturdays, Sundays or public holidays that are legally recognised in at least one Federal State (Bundesland) (section 47 (1) of the WpHG). A public holiday recognised in a Federal State is one that is recognised as such throughout that Federal State, and not just in certain municipalities or districts. To calculate the time limit, BaFin has posted on its website a calendar of trading days under section 47 of the WpHG.⁶
BaFin will not grant an extension to the deadline.

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