BGH clarifies attribution of voting rights under § 34 WpHG
The Bundesgerichtshof (BGH, Federal Court of Justice) commented, in its judgment of 16 June 2026 – II ZR 193/22 – on the notification obligation regarding voting rights holdings in stock corporations. The central issue was the circumstances under which voting rights may be attributed on the basis of conduct in parallel. Decisive in this regard was the relationship between § 34 para. 2 sentence 1 WpHG (Wertpapierhandelsgesetz, German Securities Trading Act) and Art. 10 letter a of Directive 2004/109/EC, the so-called Transparency Directive.
Following the requirements set out by the Gerichtshof der Europäischen Union (CJEU, Court of Justice of the European Union), the BGH clarified that § 34 para. 2 sentence 1 WpHG covers only concerted conduct that falls within the concept of an agreement under Art. 10 letter a of the Transparency Directive. According to this classification under EU law, attribution of voting rights based on conduct in parallel is not possible where it is merely based on an unspecified communicative process or on circumstances, without a genuine agreement being in place.
CJEU decision as the basis for the BGH judgment
Case C-864/24 Valora Effekten Handel AG
The BGH judgment was preceded by the decision of the CJEU of 12 February 2026 in Case C-864/24. The proceedings bear the name of the defendant company, Valora Effekten Handel AG. The CJEU held that § 34 para. 2 WpHG on acting in concert is incompatible with EU law to the extent that the provision goes beyond the wording of the Transparency Directive.
The request for a preliminary ruling submitted by the Bundesgerichtshof had been received by the CJEU on 13 December 2024. The claimants in the main proceedings were GT et al. as well as Beteiligungen im Baltikum AG; the defendant was Valora Effekten Handel AG. The preceding order of the BGH in the matter II ZR 193/22 is dated 22 October 2024.
Limits of national attribution of voting rights
Art. 10 letter a of the Transparency Directive is linked to agreements on the basis of which voting rights are exercised jointly. The BGH took up this requirement in its decision and accordingly limited the scope of application of § 34 para. 2 sentence 1 WpHG. Accordingly, mere conduct in parallel is not sufficient if it cannot be classified as an agreement within the meaning of the EU law provision.
This narrows the attribution of voting rights in the area of capital markets participation transparency. What is decisive is not every form of parallel conduct, but only concerted conduct that meets the EU law requirements for an agreement.
Main proceedings concerning the challenge of general meeting resolutions
Dispute over resolutions of a listed stock corporation
The subject matter of the main proceedings was the challenge of several general meeting resolutions of a listed stock corporation whose corporate purpose is securities trading. The company operates under the name VALORA EFFEKTEN HANDEL AG and has its registered office in Ettlingen. The action was brought by shareholders.
The lower courts were the Landgericht Mannheim (Regional Court of Mannheim), with its judgment of 1 March 2021, and the Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe), ref. 1 U 59/21, with a decision from November 2022. The lower courts had denied the claimants’ standing to challenge the resolutions. This was based on the assumption that, due to a breach of capital markets notification obligations, a temporary loss of rights under § 44 WpHG had occurred.
Indications of concerted conduct
The Oberlandesgericht Karlsruhe had based its finding of concerted conduct “in another manner” between 2017 and 2019, among other things, on certain indications. According to the information published in this regard, these included identical postal addresses of the claimants and the same representatives at general meetings.
The legal significance of the dispute lay in the consequence of § 44 WpHG. In the event of a breach of notification obligations, rights arising from shares may temporarily cease to exist. The lower courts relied on this legal consequence in finding that the claimants lacked standing to challenge the resolutions.
Headnote of the Bundesgerichtshof
The BGH summarised the core of its decision in the headnote, stating that § 34 para. 2 sentence 1 WpHG covers only concerted conduct that falls within the concept of an agreement in Art. 10 letter a of Directive 2004/109/EC. The BGH thereby adopts the limitation under EU law resulting from the decision of the CJEU.
The decision therefore does not concern every conceivable form of shareholder coordination. It relates to the attribution of voting rights under capital markets law pursuant to § 34 WpHG and its compatibility with the Transparency Directive. Attribution solely on account of an undefined communicative act or without a genuine agreement is, accordingly, incompatible with the requirements of EU law.
Assessment for capital market participants
Significance for notification obligations under the WpHG
The decision is significant for the interpretation of notification obligations regarding shareholdings in stock corporations. § 34 WpHG governs the attribution of voting rights and is of considerable practical relevance for participation transparency on the capital market. The decision clarifies that the provision must be interpreted restrictively in conformity with EU law.
According to the decision, attribution under § 34 para. 2 sentence 1 WpHG does not depend on every form of parallel or aligned conduct. Rather, what is required is concerted conduct that can be qualified as an agreement within the meaning of Art. 10 letter a of the Transparency Directive.
Distinction from takeover law
The Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin, Federal Financial Supervisory Authority) published Supervisory Notice No. 02/2026 (WA) on 20 March 2026. In it, BaFin specified its future administrative practice regarding § 34 WpHG and § 30 WpÜG (Wertpapiererwerbs- und Übernahmegesetz, German Securities Acquisition and Takeover Act). This administrative practice is intended to apply until § 34 paras. 1 and 2 WpHG are amended in conformity with European law.
According to the information published by BaFin, it continues to consider the attribution provision under takeover law in § 30 WpÜG to be compatible with European law. The authority intends to apply this provision without change. The decision of the CJEU and the subsequent decision of the BGH therefore primarily concern attribution under capital markets law pursuant to § 34 WpHG.
Key points of the decision
The following aspects in particular are decisive for the legal assessment of the decision:
- The BGH decided the case II ZR 193/22 on 16 June 2026.
- The subject matter was the obligation to notify voting rights holdings in stock corporations.
- The interplay between § 34 para. 2 sentence 1 WpHG and Art. 10 letter a of the Transparency Directive was decisive.
- Attribution of voting rights based on conduct in parallel requires an agreement within the meaning of EU law.
- An unspecified communicative process or the absence of a genuine agreement is not sufficient for this purpose.
- The practical significance results in particular from the possible loss of rights under § 44 WpHG.
Further procedural context
In addition to the decided proceedings concerning the 2018 general meeting, a second action for annulment by the same group of shareholders concerning the 2019 financial year was pending before the BGH. The context of orders and decisions addressed here concerns the proceedings II ZR 193/22. To the extent further proceedings are affected, the respective separate procedural status must be taken into account.
The BGH decision also points to the particular significance of EU law requirements for German capital markets law. Within the scope of application of the Transparency Directive, national attribution rules may not extend further than EU law permits. This concerns in particular the distinction between mere conduct in parallel and a legally relevant agreement.
Frequently asked questions
What did the BGH decide on 16 June 2026 regarding § 34 WpHG?
The BGH decided that § 34 para. 2 sentence 1 WpHG covers only concerted conduct that falls within the concept of an agreement under Art. 10 letter a of the Transparency Directive. A mere unspecified communicative process is not sufficient for this purpose.
What role did the CJEU play in Case C-864/24 Valora Effekten Handel AG?
The CJEU had previously held that § 34 para. 2 WpHG on acting in concert violates EU law to the extent that the provision goes beyond the wording of the Transparency Directive. The BGH implemented this requirement under EU law in its decision.
What practical consequences can § 44 WpHG have in relation to voting rights notifications?
In the event of a breach of notification obligations, § 44 WpHG may lead to a temporary loss of rights arising from shares. In the main proceedings, the lower courts relied on this to find that the claimants lacked standing to challenge the resolutions.
Capital markets law issues regarding the attribution of voting rights
The BGH decision makes clear that the interpretation of notification obligations and attribution of voting rights in capital markets law is closely tied to requirements under EU law. For companies, investors and shareholders, the distinction between mere conduct in parallel and an agreement relevant for attribution can be of considerable importance. MTR Legal Rechtsanwälte supports clients with questions relating to participation transparency, notification obligations and capital markets disputes. Further information can be found at Legal advice in capital markets law.
