Germany's Federal Financial Supervisory Authority (BaFin) issued supervisory guidance on how it will apply the German Securities Trading Act (Wertpapierhandelsgesetz, WpHG) and the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz, WpÜG) following the Court of Justice of the European Union’s judgment in Case C-864/24 on acting in concert under the Transparency Directive. With immediate effect, BaFin will interpret and apply section 34 WpHG in a way it considers consistent with EU law, including tightening the conditions for acting-in-concert attribution and ceasing to apply two national attribution grounds, while continuing to apply section 30 WpÜG unchanged. The guidance is addressed to all reporting entities under sections 33 et seq. WpHG and to market participants planning transactions and procedures under WpÜG and related rules. BaFin summarises the judgment as finding that the wording of section 34(2) WpHG on acting in concert breaches EU law insofar as it goes beyond the Transparency Directive, and that stricter attribution rules are only permissible where directly linked to takeover bids, mergers and other transactions affecting ownership or control. BaFin will therefore treat attribution under section 34(2) WpHG as arising only where there is an agreement obliging both parties to pursue, on a long-term basis, a common policy regarding the management of the relevant issuer, in line with Article 10(a) of the Transparency Directive. It will also no longer apply the attribution tests in section 34(1) sentence 1 numbers 3 and 5 WpHG, and notes that the administrative practice described in its issuer guidance and transparency FAQs no longer applies in this respect. By contrast, BaFin will continue to apply and interpret the WpÜG voting-rights attribution regime as before, citing the judgment’s indication that stricter national rules are permitted in the takeover context and that the Takeover Directive does not preclude application of section 30(2) WpÜG as currently drafted. BaFin states that the supervisory notice applies until section 34(1) and (2) WpHG is amended in a manner consistent with EU law.
BaFin 2026-03-20
Germany's Federal Financial Supervisory Authority narrows acting-in-concert attribution and drops two voting-rights attribution tests under the Securities Trading Act after EU court ruling
BaFin has issued guidance on applying the German Securities Trading Act and the German Securities Acquisition and Takeover Act following the CJEU’s judgment in Case C-864/24 on acting in concert under the Transparency Directive. BaFin will narrow acting-in-concert attribution under section 34(2) WpHG to agreements obliging parties to pursue a long-term common management policy, cease applying attribution grounds in section 34(1) sentence 1 numbers 3 and 5 WpHG, but will continue to apply section 30 WpÜG unchanged. The notice applies until section 34(1) and (2) WpHG are amended in line with EU law.