Background
The four remaining plaintiffs are minority shareholders of a publicly listed securities-trading company with share capital of €1,732,500. At the defendant’s annual general meeting (AGM) on 28 May 2019, resolutions were passed on agenda items 2 through 5. The plaintiffs voted against each resolution, formally objected on the record, and subsequently brought annulment actions under § 245 no. 1 of the German Stock Corporation Act (AktG).
The defendant argued—and both the Regional Court (Landgericht Mannheim) and the Karlsruhe Court of Appeal (Oberlandesgericht Karlsruhe) agreed—that the plaintiffs had forfeited their right to challenge the resolutions. The theory was that, from 2017 onward, the plaintiffs and a related entity (K. AG) collectively held voting rights above the 10% threshold of § 33(1) of the Securities Trading Act (WpHG) through “acting in concert” (§ 34(2) WpHG), yet never filed the required disclosure notifications of crossing—or subsequently falling below—that threshold. Under § 44(1) WpHG, a failure to disclose suspends the holder’s rights from the shares, including the right to challenge AGM resolutions.
The Court of Appeal expressly left open whether the coordination rested on a formal agreement among the plaintiffs, instead finding it sufficient that they had coordinated their conduct “in some other way” (in sonstiger Weise). The indicia cited included: a shared registered address, representation by the same attorneys in numerous proceedings, coordinated use of speaking rights at AGMs, common objectives regarding the composition of the supervisory and management boards, and substantial personal, institutional and economic ties. The BGH had stayed the present proceedings in November 2024, pending a preliminary ruling from the Court of Justice of the European Union (CJEU) in a related reference (Case C-864/24).
The Court’s Holding
The CJEU answered the BGH’s reference on 12 February 2026 (C-864/24, ECLI:EU:C:2026:94). It held 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 rule that attributes voting rights to persons who coordinate their conduct otherwise than through an “agreement” within the meaning of Article 10(a) of the same Directive, unless that rule is directly connected to takeover bids, mergers, or other transactions affecting ownership or control. The mere fact that the relevant information could potentially matter in a future takeover does not satisfy that direct-connection requirement.
Applying that ruling, the BGH held that the Court of Appeal had misread § 34(2)(1) WpHG. The provision must be construed conformably with EU law: voting-rights attribution based on concerted conduct is only permissible where the coordination constitutes an “agreement” within the meaning of Article 10(a) of the Directive. That concept—as clarified by the CJEU in Case C-605/18 (9 September 2021) and adopted here—requires (i) a meeting of minds (formal writing is unnecessary), (ii) an obligation arising from that meeting to pursue a defined stance on the basis of the held voting rights, (iii) genuinely coordinated (concerted) exercise of those rights, and (iv) a sustained, long-term common policy aimed at the management of the issuer—not merely casual or sporadic alignment. The Court of Appeal’s broader test—that any coordinated conduct stemming from any communicative act suffices—exceeds what the Directive permits and cannot be rescued by the Article 3(1a)(4)(iii) exception, because § 34(2)(1)(2) WpHG applies in all cases of potential disclosure obligations, not only in connection with takeovers or similar transactions.
Because the Court of Appeal’s factual findings do not establish whether the plaintiffs’ coordination met this stricter EU-law standard, the appellate judgment was quashed under § 562(1) ZPO and the matter remanded for fresh proceedings under § 563(1) ZPO. On remand, the Court of Appeal must determine whether the coordination found in the record—including the shared address, common representation, and aligned AGM conduct—reflects an underlying agreement in the Article 10(a) sense. Evidence of actual coordination may serve as a factual indicator that such an agreement exists, but it is not itself conclusive.
Key Takeaways
- German courts may not attribute voting rights under § 34(2)(1) WpHG on the basis of “acting in concert” unless the underlying coordination constitutes an “agreement” within the narrow meaning of Article 10(a) of Directive 2004/109/EC — a mutual commitment to pursue a sustained, long-term common management policy, exercised in a concerted manner.
- A looser national standard — deeming any coordinated conduct following “any communicative act” to be sufficient — is incompatible with the Directive and cannot be justified as a permissible Member State derogation under Article 3(1a)(4)(iii), because that exception is limited to rules directly tied to takeover bids, mergers, or ownership-change transactions.
- Circumstantial indicia of alignment (shared address, shared counsel, parallel AGM conduct, overlapping personnel) may point to an Article 10(a) agreement but do not automatically establish one; courts must make an explicit finding on this point.
- The loss of shareholder rights under § 44(1) WpHG — including the right to challenge AGM resolutions under § 245 no. 1 AktG — must rest on a properly established disclosure violation; where the legal basis for attribution is flawed, the rights suspension falls away.
Why It Matters
This decision, delivered in the immediate wake of the CJEU’s February 2026 ruling in C-864/24, recalibrates a significant area of German capital-markets law. For years, practitioners debated how broadly § 34(2)(1)(2) WpHG — the “other coordination” limb of acting in concert — could be applied. The BGH now definitively answers that the provision must be read down to track the EU Directive’s agreement concept: informal but real, obligation-creating, concerted, and oriented toward long-term management control. Courts and issuers can no longer invoke the sanction of rights suspension merely because shareholders show parallel behaviour or share advisors.
For listed companies and their advisors, the ruling raises the evidentiary bar considerably. Institutional investors, family-related shareholders, and activist groups sharing resources will retain their AGM rights unless a defendant can establish the full Article 10(a) agreement standard—a sustained commitment to common management policy, not just coordination on individual votes or litigation tactics. The case also illustrates the reach of EU harmonisation: because the Transparency Directive leaves so little room for stricter national rules outside the narrowly defined takeover/merger context, Germany’s historically expansive acting-in-concert doctrine must be applied with corresponding restraint.