CJEU on Attribution of Voting Rights: “Coordinated Conduct” under Section 34(2) WpHG Contrary to EU Law

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With its judgment of 12 February 2026, the Court of Justice of the European Union (CJEU) in Case C‑864/24 (Valora Effekten Handel) delivered a fundamental decision on the interpretation of the Transparency Directive. The key issue was whether the German rule on the attribution of voting rights in cases of coordinated conduct (so‑called acting in concert) “in other ways” within the meaning of Section 34(2), sentence 1, second alternative (Fall 2) WpHG is compatible with EU law. The Court answered this question in the negative—an outcome likely to have significant practical implications and possibly forcing the legislator to act.

Background

Shareholders of Valora Effekten Handel AG challenged resolutions adopted at the 2018 annual general meeting. The Regional Court (LG) Mannheim dismissed the claim. The Higher Regional Court (OLG) Karlsruhe dismissed the shareholders’ appeal, reasoning that the claimants lacked standing to bring an avoidance action due to a comprehensive loss of rights because they had breached their notification obligations under Sections 33 and 34 WpHG.

The OLG held that, between 2017 and 2019, the claimants and another shareholder had coordinated their conduct “in other ways”. The court based this assessment, inter alia, on identical postal addresses on the claimants’ side. In addition, they were represented at general meetings by the same individuals. Further factors included a coordinated exercise of speaking rights at general meetings, shared objectives regarding the appointment of corporate bodies, and significant personal, institutional and economic interconnections. The aggregate voting rights held by the claimants initially exceeded the relevant notification thresholds in 2017 and then fell below them again in 2018—without the required notifications to BaFin having been made.

By order of 22 October 2024, the Federal Court of Justice (BGH) stayed the proceedings and referred questions to the CJEU for a preliminary ruling, as it was unclear whether the current German acting‑in‑concert rule in the form of “coordination in other ways” is compatible with EU law.

EU‑law framework

The Transparency Directive (2004/109/EC) requires Member States to implement national rules under which shareholders must notify the issuer when they reach, exceed or fall below certain thresholds (including 5%, 10% and 15%). Article 10(a) governs the attribution of voting rights held by third parties, i.e., the inclusion of voting rights that do not belong to the notifying party itself but to a third party: anyone who has entered into an agreement with another person to pursue a common long‑term policy towards the issuer and to exercise voting rights in concert must attribute that other person’s voting rights to itself and comply with the relevant notification obligations.

The amending Directive 2013/50/EU fully harmonised the regime. The newly inserted Article 3(1a) has since generally prohibited Member States from imposing stricter requirements than those laid down in the Transparency Directive. The objective of this full harmonisation was to increase legal certainty and to reduce administrative burdens for international investors.

However, the Directive provides narrowly defined exceptions to this general prohibition. Member States may still apply stricter provisions where these are connected to takeover bids, mergers or other transactions affecting ownership structures or corporate control.

German implementation

Section 34(2), sentence 1 WpHG provides for attribution of voting rights due to acting in concert in two groups of cases:

• Case 1: Attribution where there is an agreement by which the notifying party and a third party coordinate their conduct with respect to the issuer.
• Case 2: Attribution based on “coordinated conduct in other ways”, even without an agreement. Under Section 34(2), sentence 2 WpHG, coordinated conduct requires that the parties either coordinate the exercise of voting rights or otherwise act together with the aim of bringing about a lasting and significant change to the issuer’s entrepreneurial direction.

When drafting Section 34(2) WpHG, the German legislator aligned the wording with Section 30(2) WpÜG (German Securities Acquisition and Takeover Act), which implements the Takeover Directive into German law.

The CJEU’s decision

The BGH asked the CJEU whether Article 3(1a), fourth subparagraph, point (iii) of the Transparency Directive precludes Section 34(2), sentence 1, Case 2 WpHG, according to which attribution of voting rights does not require an agreement, but “coordination in other ways” suffices.

The CJEU first emphasised the general rule: Member States are, in principle, prohibited from imposing stricter notification requirements than those laid down at EU level. The German legislator may therefore not go beyond what the EU legislature has provided. This prohibition only does not apply where the stricter national requirements are contained in laws or administrative provisions that relate to takeover bids, mergers or other transactions affecting ownership structures or corporate control.

The CJEU found that this exception was not met. The exception covers only provisions that specifically tie in with takeover bids, mergers or other control‑relevant transactions. Provisions which—like Section 34(2) WpHG—apply merely in the context of a potential notification obligation and thus irrespective of whether such a transaction exists do not fall within the exception.

What matters, the Court held, is not the wording of the national provision but its scope of application. Based on the information provided by the referring court, Section 34(2), sentence 1, Case 2 WpHG applies in all instances of a potential notification obligation under Article 9 of the Transparency Directive. It was therefore not apparent that the provision is directly connected to takeover bids, mergers or other transactions concerning control.

The CJEU also rejected the argument that the legislative history of Directive 2013/50/EU shows an intention to preserve national rules such as Section 34(2) WpHG. Even if such an intention had existed, it could not justify a different interpretation.

In sum, the judgment holds that Section 34(2), sentence 1, Case 2 WpHG violates the full harmonisation requirement of the Transparency Directive insofar as it provides for attribution of voting rights already on the basis of “coordination in other ways” in relation to general notification obligations outside specific takeover situations.

Practical consequences

From a EU‑law perspective, mere factual cooperation without an (express or implied) agreement is not sufficient to justify attribution of third‑party voting rights in the context of voting‑rights notifications. The decisive factor is the existence of an agreement within the meaning of Article 10(a) of the Transparency Directive.

As a consequence, the practical requirements for proving an “agreement” in future enforcement and sanctioning scenarios (e.g., for failure to notify voting rights) are likely to increase.

It should be noted that the decision affects only the general notification obligations under the WpHG, not takeover law. This follows from the exceptions already mentioned in the Transparency Directive itself: Article 3(1a), fourth subparagraph, point (iii) expressly allows stricter national provisions where they relate to takeover bids and other control‑relevant transactions. Accordingly, the stricter acting‑in‑concert rules continue to apply to Section 30(2) WpÜG.

It remains unclear how ongoing proceedings should be handled where courts and authorities relied on Section 34(2), sentence 1, Case 2 WpHG. Since, according to settled case‑law, CJEU judgments generally have ex tunc effect—i.e., they provide a binding interpretation of EU law retroactively and render conflicting national provisions inapplicable—courts will likely have to take the decision into account also in cases already pending.

Assessment and outlook

By interpreting the exceptions narrowly, the CJEU’s judgment underlines the EU legislature’s intention to fully harmonise notification obligations in the area of shareholding transparency.

While EU‑wide harmonisation is in principle welcome against the backdrop of the planned Capital Markets Union, the decision initially represents a setback for transparency of shareholdings. Where proving an agreement (especially an implied agreement) was difficult, practice previously relied on the concept of coordination “in other ways”. That is no longer readily possible. It remains to be seen, however, whether courts will treat mere factual cooperation as a (at least implicitly) concluded agreement.

In any event, one must abandon the assumption that Section 34 WpHG and Section 30 WpÜG will be applied identically in administrative practice and that the same facts will always produce the same legal consequences.