Publication

An entity subject to the publication obligation under section 40 (1) sentence 1 of the WpHG is required to publish voting rights notifications under sections 33 and 39 of the WpHG by providing the notifications to media for dissemination across Europe. The issuer is not required to ensure that the publication is actually effected.

Shareholders of domestic issuers whose home country is not the Federal Republic of Germany are not subject to the notification obligations under sections 33, 38 or 39 of the WpHG. Nevertheless, these issuers are required to publish voting rights notifications under section 40 of the WpHG. In this case, the publication obligation extends to notifications received by the issuer in accordance with the legal requirements of its home country.

In addition to voting rights notifications, a domestic issuer is also required to publish a notification whenever it reaches, exceeds or falls below the 3, 5 and 10 per cent thresholds in respect of its treasury shares. For domestic issuers whose home country is not the Federal Republic of Germany, this only applies to the 5 and 10 per cent thresholds (see I.2.2.1.6 for more details.)

Special case: Issuers in insolvency proceedings

Under section 24 (1) of the WpHG, the insolvency administrator is obliged to assist the issuer, among other things, in the performance of its obligations under section 40 of the WpHG, in particular by providing the necessary funds from the assets involved in the insolvency proceedings.¹ In practice, this includes forwarding to the management board the voting rights notifications addressed to the domestic issuer, unless the insolvency administrator itself files the publication for the domestic issuer.

If a provisional insolvency administrator is appointed prior to the opening of insolvency proceedings, the provisional insolvency administrator must, under section 24 (2) of the WpHG, assist the debtor in discharging its obligations, in particular by consenting to the funds being used by the obliged party or, if a general restraint on disposition has been imposed upon the obliged party, by providing the funds from the assets under its management.

Time limit

The issuer is required to fulfil the publication obligation without culpable delay (section 121 of the German Civil Code). Under section 40 (1) sentence 1 1st half-sentence of the WpHG, however, the publication must be made at the latest three trading days following receipt of the notification. The time limit commences on the next trading day following the date of receipt, i.e. the date of receipt is not included.

For the purpose of calculating the publication time limits, trading days are all calendar days other than Saturdays, Sundays or public holidays that are legally recognised in at least one of the Federal States (Länder) (section 47 (1) of the WpHG).

To calculate the time limit, BaFin provides for a calendar of trading days² in accordance with section 47 of the WpHG on its website.

Content of the publication (section 15 of the WpAV)

Under section 15 of the WpAV, the publication must generally contain all information given in the notification. With the introduction of the mandatory standard form by the TRL-ÄndRL-UmsG (see under 1.2.2.1), section 15 of the WpAV was also modified and, as a consequence, the notification must be published in the same format of the standard form. This ensures a consistent look and file for published voting rights notifications and makes them considerably easier to read, which enhances the transparency of notified equity investments.

Modalities of the publication (section 16 in conjunction with section 3a of the WpAV)

Choice of media

The objective of the publication is to ensure active dissemination of the notification across Europe (section 3a (1) of the WpAV). According to the German legislator’s intention, the issuer is required to use a pool of different types of media.

Under section 3a (2) sentence 1 no. 1 of the WpAV, media that are capable of actively disseminating the publication as rapidly and as promptly as possible across the entire EU and the other EEA countries must also be considered for the publication. In all other respects, the choice of the types of media and the number of the relevant media type are determined by the circumstances of each individual case. Circumstances that the issuer must consider when selecting the type and number of media include, in particular, the number and location of its exchange listings in countries within and outside Europe, as well as its shareholding structure.

According to the legislator’s explanatory memorandum, the types of media to be considered by the issuer include:

• electronic information systems,
• news agencies,
• news providers,
• print media, and
• websites for the financial market.

In this context, BaFin sees a need for compliance with a minimum standard. Accordingly, a reasonable pool of media must comprise, as a minimum:

• all five types of media specified in the explanatory memorandum,
• one medium per media type.

Of these, at least one medium must be capable of providing active dissemination across Europe. Moreover, the individual media must also be capable of disseminating the information as a minimum in the country in which the issuer’s shares are admitted to trading.

Depending on the individual case, the issuer may be required to exceed this mandatory minimum standard regarding the number of media per media type used or the number of additional media capable of providing active dissemination abroad.

For instance, where an issuer’s shares are admitted to trading in a further EU member state or signatory state to the EEA, the issuer must also transmit the information to those news agencies, news providers, print media and financial market websites that are able to disseminate the information in the country of the additional listing.

Requirements for transmitting publications to the media pool

When forwarding the notifications intended for publication to the various media, the issuer must give due regard to technical and content-related requirements.

In technical terms, it must ensure, under section 3a (2) sentence 1 no. 2 of the WpAV, that:

• the sender can be clearly identified,
• the data is sufficiently protected against unauthorised access or modification,
• the transmission remains confidential and secure, and
• errors or interruptions occurring during the transmission can be remedied without undue delay.

Content-related requirements

For the purpose of classifying the notification, the issuer must provide the following information (content-related requirements) when transmitting a notification:

• the name and address of the issuer subject to the publication obligation,
• the phrase “Publication of a notification under section 40 (1) of the WpHG” in the subject line,
• the date and time of transmission,
• the objective of disseminating the information as prescribed information across Europe.

Service providers

Under section 3a (4) of the WpAV, the issuer may make use of a third party, for example a service provider. In this case, however, it must consider that it remains responsible for fulfilling its publication obligation.

Language of the publication

The language of the publication is governed by section 3b in conjunction with section 16 of the WpAV.

Language of publication:

• Home country is the Federal Republic of Germany and admitted to trading only in Germany: German.
• Home country is the Federal Republic of Germany and admitted to trading also in the EU/EEA: German or English and (at the issuer’s option) a language accepted by the other EU/EEA country or English (subsection (2)), i.e. the publication may be made in two languages or only in English.
• Registered office in the EU/EEA and admitted to trading only in Germany (section 2 (14) no. 2 of the WpHG): German or English (subsection (3) sentence 1).
• Registered office in Germany and admitted to trading only in several EU/EEA countries: at the issuer’s option, in a language accepted by the other EU/EEA country or English; German is possible as an additional language (subsection (3) sentence 2).
• Registered office outside Germany: English or, on a voluntary basis, German (subsection (1)).

By way of derogation from the general requirement governing language in section 3b of the WpAV, the domestic issuer may also publish a notification that it has received in English exclusively in English (section 16 of the WpAV).

If the issuer has received a notification in only one language (German or English), but wishes to publish it in both languages, the issuer must ensure that the relevant disclosures, such as disclosures on the other reasons for the notification, are correctly translated. For example, the disclosure “voluntary group disclosure with threshold triggered at subsidiary level” should be translated as “freiwillige Konzernmitteilung mit Schwellenberührung auf Ebene eines Tochterunternehmens”.

The same applies to instruments under section 38 of the WpHG. The term “Rückforderungsanspruch” used in a German notification must be translated as “right to recall lent securities” in the English version. Instruments with fixed terms, such as “contracts for difference” or “call option”, do not have to be translated.

Publication of corrections

As a general rule, domestic issuers have to publish corrections if the notification was incorrect and a correcting notification has been issued, or if a domestic issuer has incorrectly published a correct notification. Corrections must be published if relevant disclosures in the notification (e.g. the date the threshold was triggered, the percentage and absolute number of voting rights, names of parties subject to the notification obligation) differ from the content of the publication. In view of legal actions against resolutions adopted by general meetings on the basis of section 44 of the WpHG, such corrections are also in the interest of the party subject to the notification obligation.

Corrections published due to both incorrect publications and corrected notifications must be designated as such in the heading of the publication (“Correction of a voting rights notification published on ...”). It should also be ensured that reference is made to the publication that is being corrected. In order to ensure that the correction being published is correctly associated with the publication being corrected, it may be necessary to consult with the relevant service provider. The published correction must reflect the completed and correct notification.

Publication of an electronic voting rights notification

Following BaFin’s launch of the procedure for transmitting voting rights notifications electronically effective as of October 30, 2018, parties subject to the notification obligation now use a publication dataset to electronically transmit the notification obligation to the issuer together with a readable format; the details are governed by the StimmRMV. This is designed to make it easier for issuers to publish voting rights notifications, a process that is time-consuming and prone to errors in practice.

Special case: Publication relating to treasury shares (section 40 (1) sentence 2 of the WpHG)

Treasury shares are not only shares held by a domestic issuer directly, but also

• shares held by a person acting in its own name but for the account of the domestic issuer or
• held by a subsidiary of the domestic issuer.

Advance notifications to BaFin are not necessary in any of these cases. There is no publication requirement corresponding to section 33 (2) of the WpHG applying to the initial admission of the shares to an organised market.

A separate form for such publications is available on BaFin’s website.

Transmission of notifications to the Company Register

Under section 40 (1) sentence 1 2nd half-sentence of the WpHG, the issuer must, without undue delay, also transmit the information subject to the publication requirement to the Company Register for storage. However, the information may not be transmitted for storage before it has been published. The requirement to transmit the information to the Company Register as the central storage mechanism within the meaning of the Transparency Directive already follows from section 8b (2) no. 9 in conjunction with subsection (3) sentence 1 no. 2 of the HGB. However, the WpHG stipulates when the transmission to the Company Register must be made to ensure that all investors are informed quickly and consistently. The Company Register is maintained by Bundesanzeiger Verlagsgesellschaft mbH on behalf of the Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz – BMJV) (www.unternehmensregister.de).

Issuer’s obligation to produce evidence of publication to BaFin (section 40 (2) of the WpHG)

In addition to the publication itself, the issuer must also notify BaFin that the publication has been made. The domestic issuer must notify BaFin of the publication immediately following the publication (“simultaneously”). The notification must contain the content of the publication, the media to which the publication text was sent, as well as the exact time and date the information was sent to the media (section 17 in conjunction with section 3c of the WpAV).

The notification of the publication to BaFin by the domestic issuer may also be sent by email, in contrast to the notification by the party subject to the notification obligation.

Under section 3a (3) of the WpAV, the issuer must be able, for a period of six years, to provide BaFin with the following information:

• the person who sent the notification to the media,
• the security measures used for sending the notification to the media,
• the date and time of transmission to the media,
• the medium used for the transmission to the media and
• where applicable, all data relating to any delay in the publication.

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