Section 48 (1) no. 1 of the WpHG

Under section 48 (1) no. 1 of the WpHG, the issuer must, above and beyond the information obligations, ensure equal treatment of all holders of securities that meet the other criteria set out under section 48 (1) no. 1 of the WpHG. By virtue of the principle of equal treatment set out in section 48 (1) no. 1 of the WpHG, the different treatment of holders of securities is permitted only if they are not in the same situation. Any unequal treatment of holders of securities requires an objective reason for justifying it or the express consent of all parties involved in the individual case. The principle of equal treatment of the holders of shares of an issuer whose registered office is in Germany also follows from section 53a of the AktG. In the context of selling treasury shares, selling them via the stock exchange is sufficient under section 71 (1) no. 8 of the AktG.

Section 48 (1) no. 2 of the WpHG

This states that securities holders in Germany must be provided with all facilities and information they need to exercise their rights. Section 48 (1) no. 2 of the WpHG is merely a catch-all clause because there are already specific statutory obligations for establishing the material conditions and publication of the underlying information (see section 48 (1) no. 4 of the WpHG under II.2.2.4, or section 49 (1) and (2) of the WpHG under II.3).

Section 48 (1) no. 3 of the WpHG

This requirement establishes the obligation of the issuer to ensure that the data of holders of securities is protected from access by unauthorised persons.

Section 48 (1) no. 4 of the WpHG

During the entire period during which securities are admitted to trading, a financial institution must be appointed as paying agent in Germany (i.e. the home country), through which all necessary measures in respect of the securities can be implemented free of charge.

The term “financial institution” may be misleading. What is meant are credit institutions under section 1 (1) sentence 1 of the KWG. Unless the issuer is a credit institution itself, it is no longer acceptable for the issuer to appoint itself as the paying agent. This option was eliminated when section 39 (1) no. 2 of the Stock Exchange Act (Börsengesetz – BörsG) (old version) was withdrawn.

Section 48 (1) no. 5 of the WpHG

In the case of shares admitted to trading, a form for granting a proxy for the general meeting must be made available in text form on request to each person entitled to vote, either together with the invitation to the general meeting or after the general meeting has been convened. The proxy form may be provided to the shareholder either as a paper form or electronically.

Section 48 (1) no. 6 of the WpHG

If debt securities admitted to trading have been issued, section 48 (1) no. 6 of the WpHG results in a requirement that parallels section 48 (1) no. 5 of the WpHG. According to this, a form for granting a proxy for the general meeting of debt securities holders must be made available in text form on request to each person entitled to vote, either simultaneously with the invitation to the general meeting of debt securities holders or after the general meeting of debt securities holders has been convened.

The requirement in no. 6 covers only debt securities within the meaning of section 2 (1) sentence 1 no. 3 of the WpHG (e.g. profit participation certificates, bearer bonds, order bonds or other securities under section 2 (1) sentence 1 no. 3 b) of the WpHG) except where these also fall under section 2 (1) no. 2 of the WpHG or establish an at least contingent right to acquire shares or similar interests in companies.