Conditions

Under section 39 (1) of the WpHG, the notification obligation under section 33 (1) and 2 of the WpHG applies mutatis mutandis to holders of voting rights (sections 33 and 34 of the WpHG) and instruments (section 38 of the WpHG) if the aggregated holdings relevant under sections 33, 34 and 38 of the WpHG reach, exceed or fall below the thresholds referred to in section 33 (1) sentence 1, with the exception of the 3 per cent threshold. Section 39 of the WpHG is therefore a pure aggregation-based notification criterion.

As in the case of section 38 of the WpHG, section 39 of the WpHG is based on thresholds being triggered hypothetically. The notification obligation under section 39 of the WpHG applies if the aggregate voting rights (section 33 of the WpHG) and holdings of voting rights relating to instruments hypothetically reach, exceed or fall below the thresholds of 5, 10, 15, 20, 25, 30, 50 or 75 per cent. Under BaFin’s administrative practice, a notification obligation under section 39 of the WpHG arises if the holdings fall below and then exceed again one or more thresholds within one day and at the end of the day have triggered a relevant threshold (intraday aggregation or netting of triggered thresholds).

Special case: Voting rights relating to instruments only included once

Exceptionally, instruments relating to voting rights, already subject to attribution are only included once if the instruments in question and the attribution criterion are linked in such a way that exercising the instruments results in disapplication of the attribution criterion and, conversely, ending the attribution criterion results in discontinuation of the instrument. This may be case, for example, for pooling agreements in which the parties bundle their voting rights in the pooled shares to bring about acting in concert within the meaning of section 34 (2) of the WpHG and the parties additionally hold pre-emptive rights with regard to the shares held by the other members of the pool. In this case, the voting rights for the member of the pool that are attributed to that member under section 34 (2) of the WpHG are identical to the voting rights which that member may acquire on the basis of the pre-emptive rights as an “other financial instrument” within the meaning of section 39 (1) of the WpHG. The voting rights are only included once in this situation, provided that the pre-emptive rights can be settled exclusively using the pooled shares, with the result that attribution under section 34 (2) of the WpHG of voting rights in shares that are the subject of the pre-emptive right ceases to apply when the pre-emptive right is exercised.

Any questions arising with regard to the once-only inclusion of voting rights should be clarified with BaFin at an early stage.

Notification obligations for holders of major holdings (section 43 of the WpHG)

Under the new rule introduced by the Risk Limitation Act, a party subject to the notification obligation within the meaning of sections 33 and 34 of the WpHG that reaches or exceeds the threshold of 10 per cent of the voting rights attached to shares, or a higher threshold, must, within 20 trading days of reaching or exceeding those thresholds, inform an issuer whose home country is the Federal Republic of Germany of the goals pursued by the funds and the source of those funds.

If the goals within the meaning of sentence 1 change, this must also be notified within 20 trading days.

In respect of the goals pursued with the purchase of the voting rights, the party subject to the notification obligation must disclose under section 43 (1) sentence 3 of the WpHG whether

• a long-term strategic investment in the issuer is being pursued, or whether it is primarily seeking to generate short-term trading profits from the investment,
• it plans to acquire further voting rights within the next twelve months by means of a purchase or by any other means,
• it intends to exert influence on the appointment or removal of members of the issuer’s administrative, managing and supervisory bodies, and
• it intends to achieve a material change in the company’s capital structure, in particular as regards the ratio between equity and debt and the dividend policy.

The list of goals in sentence 3 above is exhaustive.

With regard to the source of the funds used, the party subject to the notification obligation disclose state under sentence 4 whether the funds raised by party subject to the reporting requirement to finance the purchase of the voting rights are equity or debt. In the case of mixed financing, the proportionate share of the financing forms in the total financing must be disclosed.

Under section 43 (1) sentence 5 of the WpHG, there is no notification obligation under sentence 1 if the threshold has been reached or exceeded as a result of an offer within the meaning of section 2 (1) of the WpÜG.

Under section 43 (1) sentence 6 of the WpHG, there is also no notification obligation for asset management companies as well as foreign management companies and investment companies within the meaning of Directive 2009/65/EC that are subject to a prohibition corresponding to sentence 1 of Article 56(1) of Directive 2009/65/EC, to the extent that an investment limit of 10 per cent of less has been stipulated; there is also no notification obligation if there is an exemption under sentence 1 of Article 57(1) and subparagraph (2) of Directive 2009/65/EC if investment limits are exceeded. Sentence 1 of Article 56(1) of Directive 2009/65/EC is transposed by section 210 (2) of the KAGB. Asset management companies and EC collective investment undertakings subject to the requirements of the UCITS Directive, and their management companies, are therefore exempt from the notification obligation under section 43 (1) sentence 6 of the WpHG because they are generally not permitted to hold any interest in the relevant amount in this case of at least 10 per cent of the voting rights. The reference to sentence 1 of Article 57(1) and subparagraph (2) of Directive 2009/65/EC, which was transposed by section 211 (1) and (2) of the KAGB, also exempts the companies from the notification obligation in cases where the investment limit is briefly exceeded.

In addition to the issuer’s obligation to publish information under section 43 (2) 1st half-sentence of the WpHG, there is also an obligation of issuers under section 43 (2) 2nd half-sentence of the WpHG to transmit the information to the Company Register under section 8b of the HGB for storage. This ensures that the publications are made permanently available to the capital markets.

Section 43 (3) of the WpHG enables issuers domiciled in Germany to exempt themselves from the notification obligation with regard to the goals and sources of funds in subsection (1) and from the disclosure under subsection (2) by including a provision to this effect in their articles of association. The exemption may only be provided for all of the disclosures under subsection (1). The inclusion of a corresponding provision in the articles of association and its revocation are governed, for issuers domiciled in Germany, by the general provisions of the AktG. The same applies, with the corresponding modifications, to issuers whose registered office is outside Germany.