Notification of voting rights
A voting rights or participation publicity (Engl. Voting rights announcement ) refers to the announcement of the possession of a certain number of voting rights in the form of shares in a company. A voting right describes the right to vote at general meetings of stock corporations , for example . The obligation to notify voting rights serves the transparency of the capital market .
Notification of voting rights under German law
Securities Trading Act (WpHG)
Content and purpose
§ 33 paragraph 1 sentence 1 of the Securities Trading Act (WpHG) sets the investors of listed issuers a publication requirement : who with his shares exceed a certain percentage of the voting rights of a listed company or below, this must be the issuer and the Federal Financial report immediately. Such a notification must be made within four trading days at the latest. The function of this notification requirement is to inform the capital market as quickly as possible about significant changes in voting rights: The capital market has an interest in this, as the distribution of voting rights within listed companies can influence the price of the securities related to them.
The obligation to notify voting rights under the WpHG is based on several European directives , the most recent of which was adopted on October 22, 2013. As a result of this guideline, the previously valid regulations of the WpHG have been tightened.
requirements
The obligation applies to issuers whose country of origin is Germany, which means that they meet one of the conditions of Section 2 (13) of the WpHG. Furthermore, the shares of the issuer must be traded on the organized market, i.e. listed on the stock exchange, in accordance with Section 33 (4) WpHG.
Furthermore, one of the threshold values specified in Section 33 WpHG must be exceeded or fallen below (percentages: 3, 5, 10, 15, 20, 25, 30, 50, 75). Exceeding the 10% threshold of the voting rights from shares of a German issuer must this according to § 43 shall be notified within 20 trading days after reaching the threshold, the purpose of the acquisition of voting rights and the funds used for the acquisition. A change in these targets must in turn be communicated within 20 trading days.
The owner of the voting rights is obliged to use a special form. The notification must contain the heading Disclosure of voting rights and, in addition to the name and address of the notifying party and the issuer, the exact date when the threshold was reached, fallen below or exceeded. This notification can be made in writing or by fax, either in German or English. If the person required to notify has further voting rights over participating ( controlled ) companies that are more than 3%, these as well as the names and addresses of the associated companies must also be listed.
The share of voting rights must be obtained through acquisition, sale or in any other way. In jurisprudence, it was disputed whether the acquisition was already to be understood as the conclusion of the purchase contract for the security or the subsequent transfer of ownership . The prevailing opinion was based on the latter, since rights are only acquired through the transfer of ownership. According to Section 33 (3) WpHG, which was added in the course of implementing the Transparency Directive of 2013, the acquisition of a right to transfer ownership of a security may be sufficient.
The introduction of the Risk Limitation Act in August 2008 resulted in a number of changes which, among other things, have an impact on the disclosure requirements for voting rights notifications. Options and shares are therefore no longer to be treated separately, but together, which means that there is an obligation to publish if the sum of shares and options exceeds a corresponding limit.
Attribution of voting rights
When calculating whether an investor has reached a threshold, in addition to the shares held by the issuer itself, the shares of third parties may also have to be taken into account. This applies if they are attributable to him according to Section 34 WpHG. The attribution should take into account the fact that the investor may, under certain circumstances, influence the decision of other shareholders, so that his voting weight increases in fact.
According to Section 34 (1) WpHG, voting rights are attributable to a shareholder
- that belong to a subsidiary of the reporting person,
- which belong to a third party and are held by him for the account of the party subject to the reporting obligation,
- which the reporting party has transferred to a third party as security, unless the third party is authorized to exercise the voting rights from these shares and expresses its intention to exercise the voting rights independently of the instructions of the reporting party,
- in which a usufruct has been established in favor of the notifying party ,
- which the notifying party can acquire through a declaration of intent,
- which have been entrusted to the person subject to the notification requirement or from which he can exercise the voting rights as a proxy, provided that he can exercise the voting rights from these shares at his own discretion, if there are no special instructions from the shareholder.
According to section 34 (2) sentence 1 of the WpHG, voting rights must also be attributed if the investor coordinates his behavior with a third party or a subsidiary in relation to the issuer. This is known as acting in concert . However, no attribution takes place if the vote is limited to individual cases.
Legal consequences
Violations of the notification obligation may result in a fine of a maximum of 200,000 euros. In addition, for the period of non-notification pursuant to Section 44 (1) sentence 1 of the WpHG, the person subject to the reporting obligation loses his rights from all shares held. If he deliberately or grossly negligently fails to provide notification, the duration of this loss of rights is extended by six months in accordance with section 44 (1) sentence 3 WpHG. A shareholders' resolution is therefore to § 243 paragraph 1 of the Companies Act to challenge (AktG) when using only one lost in this way comes about voting rights.
Stock Corporation Act (AktG)
Section 20 AktG also contains an obligation to disclose participation. Pursuant to Section 20 (8) AktG, this relates to issuers that are not traded on the organized market.
Legal situation in other states
Switzerland
The Federal Act on Stock Exchanges and Securities Trading (SESTA), the Swiss Stock Exchange Act, also stipulates mandatory reports when certain reporting thresholds are exceeded or not reached. According to Art. 20 SESTA, these are the limit values of 3, 5, 10, 15, 20, 25, 33⅓, 50 or 66⅔ percent of the voting rights. These notifications must be published by the respective company, but are also published by the Swiss Disclosure Office.
France
The Code de commerce , the French commercial law, also stipulates mandatory notifications when certain reporting thresholds are exceeded or not reached. According to Art. L233-7 I, these are the limit values 5 (one twentieth), 10 (one tenth), 15 (three twentieth), 20 (one fifth), 25 (one quarter), 30 (three tenths), 33.33 (one Third), 50 (half), 66.66 (two thirds), 90 (nine tenths) and 95 (nineteen twentieth) percent of the voting rights.
The law also allows the issuer to set additional reporting thresholds for the publication of significant voting rights in their articles of association, the issuer-specific reporting thresholds . In Art. L233-7 III, the issuer is allowed 0.5 percent as the lowest additional reporting threshold.
Web links
Individual evidence
- ^ Petra Buck-Heeb: Capital Market Law . 8th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4247-4 , Rn. 574.
- ^ Petra Buck-Heeb: Capital Market Law . 8th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4247-4 , Rn. 576.
- ^ Fried Frank: New reporting obligations through the Risk Limitation Act, January 17, 2008
- ↑ Draft of a law to limit the risks associated with financial investments (Risk Limitation Act) (PDF; 349 kB)
- ^ Petra Buck-Heeb: Capital Market Law . 8th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4247-4 , Rn. 585.
- ↑ Art. 20 obligation to notify (SESTA / Switzerland)
- ↑ Disclosure of participations by the disclosure office ( memento of the original from September 9, 2005 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ Commercial Law Article L233-7 . Website www.legifrance.gouv.fr. Retrieved September 9, 2013.
- ↑ Commercial Law Article L233-7 . Website www.legifrance.gouv.fr. Retrieved September 9, 2013.
