CJEU limits stricter notification obligations for voting rights
The Court of Justice of the European Union (CJEU) held in its judgment of 12 February 2026 in Case C-864/24 that Member States may not readily impose more extensive notification obligations on holders of voting rights where they merely coordinate their conduct in practice. The decisive provision is Art. 3(1a), fourth subparagraph, point (iii) of Directive 2004/109/EC, as amended by Directive 2013/50/EU. The judgment bears the case reference ECLI:EU:C:2026:94.
According to the decision, this provision of EU law precludes a national rule insofar as it extends the notification obligations under Art. 9(1) and (2) of Directive 2004/109/EC also to holders of voting rights who coordinate their conduct vis-à-vis the issuer of the shares carrying voting rights otherwise than on the basis of an “agreement” within the meaning of Art. 10(a) of the Directive. However, this applies only if the national obligation in question is not directly connected with takeover bids, mergers or other transactions affecting the ownership or control of companies.
Background to the proceedings
Dispute concerning general meeting resolutions
The judgment was based on a legal dispute concerning the validity of certain resolutions adopted at the general meeting of Valora Effekten Handel AG in 2018. The claimants in the main proceedings were shareholders of the company, including GT, a German investment company and a German venture capital and real estate company. The defendant in the main proceedings was Valora Effekten Handel AG.
The claimants challenged individual resolutions of the general meeting before the Landgericht Mannheim (Regional Court of Mannheim). The Landgericht Mannheim ruled in proceedings 24 O 36/19 by judgments of 28 September 2020 and 1 March 2021. The claimants appealed against the decision dismissing the action.
Decisions of the German courts
The Oberlandesgericht Karlsruhe (Higher Regional Court of Karlsruhe) dismissed the appeal by judgment of 14 November 2022 – 1 U 59/21. In its reasoning, it found that, under § 44(1) WpHG (German Securities Trading Act), the claimants were not entitled to challenge the resolutions because they had breached notification obligations under §§ 33, 34 WpHG (German Securities Trading Act).
The Oberlandesgericht Karlsruhe assumed that the respective voting rights arising from the shares held by the claimants and by another company, K AG, were to be attributed to each other. It based this on the fact that the parties had coordinated their conduct within the meaning of § 34(2) WpHG in the years 2017 to 2019.
According to the findings of the Oberlandesgericht Karlsruhe, the voting rights held by the claimants and K AG together exceeded the threshold of 10% of the voting rights in Valora Effekten Handel AG in 2017. In 2018, they again fell below that threshold. According to the findings of the Oberlandesgericht Karlsruhe, no notification was made to the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin, Federal Financial Supervisory Authority). The court did not consider it necessary to examine whether the claimants were bound by a contract concerning the exercise of voting rights.
Request for a preliminary ruling by the Bundesgerichtshof
Doubts regarding compatibility with EU law
The proceedings then reached the Bundesgerichtshof (BGH, Federal Court of Justice). It had to decide on the claimants’ appeal on points of law against the judgment of the Oberlandesgericht Karlsruhe. By order of 22 October 2024 – II ZR 193/22 –, corrected by order of 3 December 2024, the Bundesgerichtshof stayed the proceedings and referred the matter to the Court of Justice of the European Union. The request for a preliminary ruling was received by the CJEU on 13 December 2024.
The Bundesgerichtshof sought clarification as to whether Art. 3(1a), fourth subparagraph of Directive 2004/109/EC permits Member States to provide for a rule such as § 34(2) WpHG insofar as it goes beyond Art. 10 of the Directive.
Significance for the appeal on points of law
The Bundesgerichtshof pointed out that the Oberlandesgericht Karlsruhe had based the attribution of voting rights on coordination “in another manner” under § 34(2) sentence 1, second alternative WpHG. If that national rule were contrary to EU law, the appellate judgment would have to be set aside and the case remitted. Further findings would then be required as to whether an “agreement” within the meaning of § 34(2) sentence 1, first alternative WpHG or Art. 10(a) of Directive 2004/109/EC existed between the claimants in the main proceedings and K AG.
If, by contrast, § 34(2) sentence 1, second alternative WpHG were compatible with EU law, the Bundesgerichtshof would have had to dismiss the appeal on points of law. In that case, an agreement within the meaning of the first alternative would not have been relevant.
CJEU decision on admissibility
Objections by Valora Effekten Handel AG
Valora Effekten Handel AG considered the request for a preliminary ruling inadmissible. It argued that the question referred by the Bundesgerichtshof was not decisive for the outcome of the main dispute. In its view, an “agreement” within the meaning of Art. 10(a) of Directive 2004/109/EC existed in the specific case. In any event, the facts fell under Art. 10(e) of the Directive, which concerns voting rights held by a controlled undertaking.
CJEU confirms relevance to the decision
The CJEU rejected this objection. It referred to its settled case-law, according to which questions referred by national courts concerning the interpretation of EU law are, in principle, presumed to be relevant. In doing so, the Court does not review the accuracy of the legal and factual framework set out by the national court on its own responsibility.
According to the information provided by the Bundesgerichtshof, the Oberlandesgericht Karlsruhe had made no finding precisely as to an “agreement” within the meaning of § 34(2) sentence 1, first alternative WpHG. Rather, it had considered coordination “in another manner” to be sufficient. The interpretation of EU law was therefore relevant to the decision of the Bundesgerichtshof.
The CJEU also saw no reason, with regard to Art. 10(e) of the Directive, to hold the request inadmissible. The information provided by the Bundesgerichtshof did not indicate that the Oberlandesgericht Karlsruhe, which was responsible for assessing the facts, had found that a person controlled an undertaking within the meaning of that provision.
Substantive assessment by the CJEU
Starting point: prohibition of stricter requirements
The CJEU first referred to the wording of Art. 3(1a), fourth subparagraph of Directive 2004/109/EC. According to that provision, the home Member State may, in principle, not impose requirements that are stricter than the obligations laid down in the Directive on shareholders or natural or legal persons within the meaning of Art. 10 or Art. 13 of the Directive. Exceptions arise only from the cases specified in Art. 3(1a), fourth subparagraph, points (i) to (iii).
Directive 2013/50/EU had added paragraph 1a to Art. 3 of Directive 2004/109/EC. The background was to align the previously differing national levels of harmonisation regarding notification obligations. The objective was a more highly harmonised regime for the notification of major holdings of voting rights. The exceptions to the prohibition of stricter national requirements must therefore be interpreted narrowly.
Exception for takeovers and control transactions
Art. 3(1a), fourth subparagraph, point (iii) of the Directive permits stricter national provisions only under certain conditions. The CJEU identifies two cumulative requirements for this:
- The stricter requirements must be laid down in laws, regulations or administrative provisions connected with takeover bids, mergers or other transactions affecting the ownership or control of companies.
- Those requirements must be supervised by the authorities designated by the Member States pursuant to Art. 4 of Directive 2004/25/EC.
Under German law, supervision of the requirements resulting from § 34(2) WpHG is the responsibility of the Bundesanstalt für Finanzdienstleistungsaufsicht. This is also the authority designated by Germany pursuant to Art. 4 of Directive 2004/25/EC. According to the CJEU’s reasoning, the second requirement could therefore be met, which was, where applicable, for the referring court to examine.
No sufficient connection merely because of potential relevance
However, the decisive issue was the first requirement. According to the information provided by the Bundesgerichtshof, § 34(2) sentence 1, second alternative WpHG applies in all cases of a potential notification obligation under Art. 9 of Directive 2004/109/EC. The CJEU therefore saw no direct connection with takeover bids, mergers or other transactions affecting the ownership or control of companies. This, too, was for the referring court to examine in the main proceedings.
According to the decision, it is not sufficient that the information to be disclosed under national law could be significant in a later takeover bid or control transaction. Nor is it decisive that the wording of § 34(2) WpHG corresponds to another German provision concerning the acquisition of securities and takeover bids. According to the CJEU, what matters is not linguistic similarity, but the scope of application of the national provision.
Scope of the judgment for § 34 WpHG
Affected is coordination “in another manner”
The judgment specifically concerns § 34(2) sentence 1, second alternative WpHG, i.e. the element of coordination of conduct “in another manner” in the area of so-called acting in concert. The issue under EU law arises because this alternative may go beyond the concept of agreement in Art. 10(a) of Directive 2004/109/EC.
The CJEU did not reject every attribution of voting rights under German law. Rather, it held that a national extension of notification obligations is permissible only if it satisfies the strict requirements of Art. 3(1a), fourth subparagraph, point (iii) of the Directive. For general application within the framework of notification obligations under § 33 WpHG, the CJEU’s considerations indicate that the required direct takeover or control-related connection is lacking.
Agreement as the decisive connecting factor
According to the scheme relied upon by the CJEU, the European concept of agreement requires an obligation on the parties to pursue, on a lasting basis, a common policy with regard to the management of the issuer and to exercise the voting rights held by them in concert. Purely factual coordination without such an agreement is not sufficient for the application of Art. 10(a) of the Directive.
The EU-law standard therefore differs from purely factual coordination of conduct that does not create a corresponding obligation. It was precisely this broader coverage that was the subject of the decision.
Development of German law and the European-law framework
Earlier implementation of transparency requirements
Notification obligations for holders of voting rights were introduced in Germany in the course of implementing European transparency requirements for listed stock corporations. In this context, not only voting rights held directly by the person subject to notification must be taken into account. Attribution rules also cover cases in which the person subject to notification has, or may have, legal or factual influence over the exercise of voting rights.
So-called acting in concert serves to capture situations in which several shareholdings may reflect economic or factual positions of power. The capital market should be able to identify whether separate voting-right positions conceal a common ability to exert influence.
Extension to coordination without an express agreement
The German rule evolved over time. While the earlier version was more closely aligned with the original European rule, the provision was later brought closer to the attribution rules under takeover law. In the process, coordination “in another manner” was also included.
At that time, a stricter national rule was less problematic under European law because the transparency requirements then in force left Member States wider scope. It was only Directive 2013/50/EU that introduced partial full harmonisation. Since then, stricter national notification obligations have been permissible only in the expressly regulated exceptional cases.
Consequences for supervision and case-law
BaFin supervisory notice
The Bundesanstalt für Finanzdienstleistungsaufsicht published Supervisory Notice No. 02/2026 (WA) on 20 March 2026. In it, it explained the effects of the CJEU judgment on § 34 WpHG and § 30 WpÜG (German Securities Acquisition and Takeover Act). The supervisory notice applies until § 34(1) and (2) WpHG are amended in conformity with European law.
Since then, BaFin has interpreted § 34(1) and (2) WpHG in accordance with the requirements laid down by the CJEU. Under the new standard, attribution requires an agreement by which both parties are obliged to pursue, on a lasting basis, a common policy with regard to the management of the issuer. At the same time, BaFin makes clear that § 30 WpÜG remains applicable unchanged in takeover law.
Conclusion of the main proceedings by the BGH
The Bundesgerichtshof concluded the main proceedings by judgment of 16 June 2026 – II ZR 193/22. It held that § 34(2) sentence 1 WpHG covers only those coordinated forms of conduct that fall within the concept of agreement under Art. 10(a) of Directive 2004/109/EC.
The Bundesgerichtshof thereby drew the consequence from the CJEU’s decision. For the application of § 34(2) sentence 1 WpHG, the decisive question is therefore whether an agreement exists within the meaning of EU law. Mere coordination “in another manner” without such an agreement is not sufficient for this purpose.
Practical significance for capital market participants
More scope, but no complete exemption
The decision is of considerable significance for shareholders, institutional investors and companies with listed shares. It limits the reach of the German notification obligations in the area of voting-right attribution under § 34(2) WpHG insofar as these were based on mere factual coordination.
In practice, the decision may open up more room for coordinated conduct, particularly in the case of coordinated ESG engagement or forms of shareholder activism by institutional investors. However, this consequence concerns only the attribution of voting rights under § 34 WpHG within the framework of capital-markets notification obligations.
Takeover law, in particular, remains unaffected. Attribution under § 30 WpÜG and potential consequences arising from it, for example in connection with a mandatory offer under § 35 WpÜG, are not eliminated by the decision. Likewise, it continues to be noted in professional practice that questions concerning the loss of rights, such as voting rights or dividend entitlements, do not appear to have been conclusively clarified in every respect in relation to the wording of § 34 WpHG.
Significance for corporate practice
The legal dispute also had repercussions within the company concerned. For the annual general meeting of Valora Effekten Handel AG on 20 May 2026, shareholders requested additions to the agenda. These concerned, among other things, costs of a written submission by the company transmitted to the CJEU.
The decision thus demonstrates not only capital-markets law consequences, but also corporate-law repercussions. Issues of voting-right attribution may affect standing to challenge resolutions, the validity of general meeting resolutions and the internal dispute between the company and its shareholders.
Assessment for companies, investors and shareholders
The CJEU judgment restricts the ability of national legislators to create additional notification obligations for holders of voting rights beyond the harmonised transparency requirements. For § 34(2) sentence 1, second alternative WpHG, this means that mere factual coordination without an agreement within the meaning of Art. 10(a) of Directive 2004/109/EC is not sufficient, provided there is no direct connection with takeover bids, mergers or other control transactions.
For issuers, investors and shareholders, distinguishing between permissible communication, a notifiable agreement and coordination relevant under takeover law remains challenging. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on issues relating to voting-right notifications, transparency of shareholdings and capital-market consequences. Further information can be found under Legal advice in capital markets law.
