Section 46 of the WpHG contains exemptions for issuers from third countries from the publication obligations under sections 40 (1) and 41 of the WpHG.

Section 44 (1) of the WpHG allows BaFin to exempt issuers whose registered office is in a third country and whose home country is Germany from the obligations governed by sections 40 (1) and 41 of the WpHG, provided that those issuers are subject to equivalent requirements of a third country or commit themselves to comply with such requirements. Such requirements may be the requirements of the third country in which the issuer has its registered office or those of another country that the issuer has committed to complying with. This rule prevents issuers from being burdened by two equivalent regulatory regimes. The concept of a “third country” is defined in section 2 (12) of the WpHG.

The requirements of equivalence of third-country requirements are clarified in the TranspRLDVO. Section 5 of the TranspRLDVO governs the criteria for determining whether a third country’s requirements are equivalent to the time limits to be observed for the issuer’s publication obligations under section 40 (1) sentence 1 of the WpHG. A condition for the equivalence criteria to be met is that the time limit, within which the issuer whose registered office is in the third country must be informed about changes in the holding of voting rights and within which the issuer must publish those changes, may not be more than seven trading days.

Section 6 of the TranspRLDVO sets out the criteria for determining whether a third country’s requirements are equivalent with regard to the issuer’s publication obligations to be met for treasury shares. These requirements depend on the permissible holding of treasury shares. If an issuer is permitted to hold no more than 5 per cent of its treasury shares with voting rights attached, the equivalence criteria are satisfied if the issuer is required to notify that this threshold has been reached or exceeded. If an issuer is permitted to hold between 5 and 10 per cent of its own voting shares, it is required to notify that it has reached or exceeded the 5 per cent threshold or the applicable maximum threshold. An issuer who is permitted to hold more than 10 per cent of its own voting shares must notify that it has reached or exceeded the 5 per cent threshold as well as the 10 per cent threshold. For the purposes of equivalence, a notification obligation above the 10 per cent threshold is not necessary.

Section 7 of the TranspRLDVO sets out the criteria for determining whether a third country’s requirements are equivalent in terms of the issuer’s publication obligations to be met with regard to the total number of voting rights. The requirements of a third country are deemed to be equivalent to the requirements of section 26a of the WpHG if they require a domestic issuer to publish the total number of voting rights and the capital within 30 calendar days of an increase or decrease in the total number of voting rights or the capital.

Under section 41 (2) of the WpHG, issuers who are exempted by BaFin under section 41 (1) of the WpHG from complying with the obligations under sections 40 (1) of the WpHG and 41 of the WpHG must nonetheless ensure that the general public in the EU and EEA is informed about the matters described there. To do this, they must publish in the EU and EEA any information they are also obliged to provide to the general public under the foreign requirements – corresponding to sections 40 (1) of the WpHG and 41 of the WpHG – in the third country concerned in the manner prescribed by section 40 (1) of the WpHG, and to submit the notification to BaFin as set out in section 40 (2) of the WpHG. The obligation to transmit the information to the Company Register is set out in section 8b (2) no. 9 in conjunction with subsection (3) sentence 1 no. 2 of the HGB.