Under section 37 (1) of the WpHG, a subsidiary is exempted from the notification obligations under sections 33, 38 and 39 of the WpHG if the notification is filed by its parent undertaking or, if the parent undertaking is itself a subsidiary, by this parent undertaking (“group notifications”).

Group notifications

In a group notification, changes in investments or holdings within a group are notified by the parent undertaking in a single voting rights notification. The law (section 37 of the WpHG in conjunction with section 12 (2) of the WpAV) does not limit this form of notification to groups as defined by the AktG, but allows a single notification for all parent-subsidiary relationships (section 35 (1) of the WpHG). In a group notification, the parent undertaking files a notification and thus notifies its direct and indirect holdings. Group notifications are therefore not possible in the cases described in section 35 (2) to (6) of the WpHG, as in these cases the entity subject to the reporting requirement is not classified as a subsidiary. According to the applicable provisions, there is generally a notification obligation under sections 33 and 34 of the WpHG for each entity in a group whose holdings of voting rights triggers a notifiable threshold. However, the group notification also fulfills the notification obligation of each subsidiary since the parent undertaking’s notification already contains the relevant information relating to its subsidiaries. That is because each company in a group must include information about the group as a whole in the mandatory standard form (in no. 8.).

According to the legislator’s intention, it is not problematic that in individual cases the information contained in the notification by the parent undertaking relating to its subsidiaries does not correspond 1:1 to the information that the relevant subsidiary would disclose if it filed its own notification. However, according to the legislator’s intention, the single holdings of the individual group companies are not decisive in a parent-subsidiary relationship, but rather the total holdings of voting rights, instruments and aggregate holdings within the group.

There is no statutory obligation to file a group notification, but if the ultimate parent undertaking has to file a notification because it has itself triggered a threshold in the case of sections 33, 38 and/or 39 of the WpHG, notifications filed by the subsidiaries become obsolete because, as explained above, the notification of the parent undertaking already contains the relevant information relating to its subsidiaries, and this is regarded as fulfilling the notification obligations of the subsidiaries; there is therefore no longer a notification obligation for the subsidiary. In these cases, the subsidiaries may not file voluntary notifications because they would run counter to the legislative purpose – only a single notification in the group. The exemptive effect of group notifications also applies to cases in which notification obligations are only triggered at the level of the subsidiaries (e.g. in the case of intragroup transfers of investments), but not also at the level of the parent undertaking. Section 12 (2) of the WpAV refers to the “filing of a notification” by the parent undertaking and not to a parent undertaking “meeting its own notification obligation”. A voluntary group notification by the parent undertaking is not only able to satisfy the notification obligations of the subsidiaries, BaFin also expressly encourages the filing of a group notification in such cases because this ensures the continuity of the notifications by the party subject to the notification obligation and provides an up-to-date overview of the holdings in the group.¹

Filing a group notification using the standard form

Certain information must be included in the mandatory standard form in the case of parent-subsidiary relationships. More detailed guidance can be found in the form available on BaFin’s website.

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