Germany's Federal Financial Supervisory Authority narrows acting in concert attribution under WpHG following EU court ruling

Germany’s Federal Financial Supervisory Authority (BaFin) issued a supervisory notice explaining how it will interpret and apply voting rights attribution requirements under Section 34(1) and (2) of the German Securities Trading Act (WpHG) following the Court of Justice of the European Union’s judgment of 12 February 2026 in case C-864/24 on acting in concert under the EU Transparency Directive. With immediate effect, BaFin will apply Section 34(2) WpHG only in line with the Transparency Directive’s concept of acting in concert, and it will stop applying certain WpHG attribution grounds that go beyond the directive. Under BaFin’s revised approach, an attribution under the Transparency Directive is only assumed where there is coordination on the consensual exercise of voting rights based on an agreement that obliges both parties to pursue, on a long-term basis, a common policy for the management of the issuer. BaFin will no longer apply the attribution grounds in Section 34(1) sentence 1 numbers 3 and 5 WpHG, and the administrative practice described in BaFin’s Issuer Guide and its FAQs on transparency obligations under Sections 33 et seq. WpHG is no longer applicable to that extent. By contrast, BaFin will continue to apply and interpret the voting rights attribution provisions of the German Securities Acquisition and Takeover Act (WpÜG) unchanged, citing the EU-law basis for stricter attribution rules where they are directly connected to takeover bids and other transactions affecting ownership or control and noting that the EU Takeover Directive does not preclude application of Section 30(2) WpÜG. The notice is addressed to all persons subject to notification obligations under Sections 33 et seq. WpHG and to market participants planning or conducting procedures under the WpÜG framework. It applies until Section 34(1) and (2) WpHG are amended to be compliant with EU law.