Background
The plaintiffs are shareholders of a publicly listed German joint-stock company engaged in securities trading, with registered share capital of €1,732,500. They voted against resolutions adopted at agenda items 3, 4, and 6 of the company’s Annual General Meeting (AGM) on 28 May 2018 and formally objected on the record. They subsequently brought suit seeking annulment of those resolutions — or, in the alternative, a declaration of their nullity or ineffectiveness — on numerous grounds.
The central dispute turned on whether the plaintiffs were required, but had failed, to file voting-rights notifications under §§ 33, 34 of the German Securities Trading Act (WpHG) before the 2017 and 2018 AGMs. At the 2017 AGM, Plaintiff 2 held roughly 9.46% of the shares and K. AG held roughly 1.15%. Combined — if those holdings were attributed to one another — the 10% notification threshold under § 33(1) WpHG would have been crossed. No notification was made before 2017, and no notification of a subsequent fall below the threshold was made before 2018. The company argued that the plaintiffs and K. AG were acting in concert under § 34(2) WpHG, triggering attribution of their combined voting rights and, upon breach of the disclosure obligation, forfeiture of voting rights under § 44(1) WpHG — which would also strip the plaintiffs of their standing to challenge the 2018 resolutions.
The Regional Court (Landgericht Mannheim) dismissed the claim; the Court of Appeal (Oberlandesgericht Karlsruhe) affirmed on 14 November 2022. The OLG found acting in concert on the basis of “coordination in some other way” (Abstimmung in sonstiger Weise), pointing to numerous circumstantial indicators — shared registered address, the same representatives at AGMs, the same law firm and arguments across multiple court proceedings, coordinated use of speaking rights, and overlapping personnel and economic ties — without deciding whether a formal “agreement” existed. The Federal Court of Justice (BGH) granted leave to appeal and, on 22 October 2024, stayed the proceedings and referred a question of EU-law interpretation to the Court of Justice of the European Union (CJEU).
The Court’s Holding
On 12 February 2026 the CJEU ruled (C-864/24, ECLI:EU:C:2026:94) that Article 3(1a), subparagraph 4(iii) of Directive 2004/109/EC (the Transparency Directive, as amended by Directive 2013/50/EU) precludes a member state from imposing disclosure obligations on holders of voting rights who coordinate their conduct otherwise than on the basis of an “agreement” within the meaning of Article 10(a) of that Directive, unless such a national rule is in direct connection with takeover bids, mergers, or other transactions affecting the ownership structure or control of companies. Merely potential relevance to a future takeover does not satisfy that direct-connection requirement.
Applying that ruling, the BGH held that § 34(2) sentence 1 WpHG must be read conformably with EU law: it covers only behavioral coordination that qualifies as an “agreement” within the meaning of Article 10(a) of Directive 2004/109/EC. Under that provision — as clarified by the CJEU in its earlier judgment of 9 September 2021 (C-605/18) — an “agreement” requires at minimum: (1) a meeting of wills (which may be entirely informal and need not be written); (2) an obligation arising from that meeting of wills to pursue a specific position through the voting rights held; (3) consensual, coordinated exercise of those rights; and (4) a long-term commitment to pursuing a common policy regarding the management of the issuer — engagement that must be consistent and purposeful, not incidental or sporadic. The OLG’s standard — that coordinated behavior stemming from any communicative act suffices — exceeds this threshold and is incompatible with EU law.
Because § 34(2) sentence 1 WpHG applies generally to all situations in which disclosure under Article 9 of the Directive might be triggered (not only in takeover or merger contexts), it cannot be saved as a permissible national derogation under Article 3(1a)(4)(iii). The BGH therefore quashed the OLG’s judgment and remanded the case for fresh fact-finding. On remand, the OLG must determine whether the conduct identified in the record constitutes an “agreement” meeting the stricter EU standard. Evidence of actual behavioral coordination may serve as a factual indicator of such an agreement, but does not substitute for it.
Key Takeaways
- Germany’s “acting in concert” attribution rule (§ 34(2) WpHG) must be interpreted in strict conformity with Article 10(a) of Directive 2004/109/EC: only behavioral coordination rooted in an “agreement” — a meeting of wills imposing an obligation to pursue a common, long-term management policy through consensual voting — triggers disclosure obligations and potential voting-rights forfeiture.
- Courts may not apply a looser standard (e.g., coordinated behavior arising from any communicative act) unless the resulting disclosure obligation is directly connected to a specific takeover bid, merger, or control transaction; general applicability of the provision disqualifies it from the Directive’s derogation clause.
- Circumstantial evidence — shared address, shared representatives, shared legal counsel, coordinated AGM speeches, common objectives regarding board composition — may be probative indicia of an underlying agreement but does not, standing alone, satisfy the EU law definition of “agreement.”
- Voting-rights forfeiture under § 44(1) WpHG (and the consequent loss of standing to challenge AGM resolutions under § 245 No. 1 AktG) can only follow from a proven violation of notification obligations that are themselves validly grounded in EU-law-compliant attribution rules.
Why It Matters
This ruling significantly narrows the reach of Germany’s acting-in-concert disclosure regime as applied outside of takeover and merger scenarios. Lower courts and market participants can no longer rely on a broad “any communicative act” standard to trigger the attribution of voting rights among coordinating shareholders; they must instead assess whether the coordination rests on an agreement in the technically demanding EU law sense — a long-term, purposeful, consensual commitment to a common management policy. The decision follows directly from the CJEU’s February 2026 preliminary ruling, which closes off member-state attempts to impose stricter-than-Directive disclosure duties on an across-the-board basis.
For corporate practice, the judgment has immediate relevance wherever shareholder coalitions are involved in AGM disputes, activist campaigns, or board nomination fights: factual coordination and shared interests no longer automatically constitute acting in concert for disclosure purposes. Issuers and their advisers seeking to challenge shareholder voting rights on the basis of undisclosed concerted action must now marshal evidence pointing specifically to a structured, ongoing agreement rather than relying on circumstantial alignment of conduct.