BaFin has announced immediate changes to its administrative practice for attributing and disclosing voting rights. Although this change might lead to greater certainty for ESG collaborative engagement firms will still need to consider the implications for their ESG collaboration among institutional investors and review their internal policies and procedures.  

By way of background, institutional investors often come to an agreement with each other in order to more effectively represent their positions on ESG topics vis-à-vis the companies in which they invest. However BaFin noted previously that such agreements can be classified as “acting in concert” and have unintended consequences.

On March 20, 2026, the German regulator, the Federal Financial Supervisory Authority (BaFin), issued a supervisory notice announcing immediate changes to its administrative practice for attributing and disclosing voting rights under the German Securities Trading Act (WpHG) in light of the Court of Justice of the European Union’s judgment of February 12, 2026 (Case C‑864/24).

In Case C‑864/24, the Court of Justice of the European Union held that the wording of Section 34(2) of the WpHG concerning “acting in concert” (AiC) is incompatible with European Union law insofar as it exceeds the scope of the Transparency Directive. According to the Court, a national provision that departs from the Transparency Directive by imposing a stricter attribution regime is permissible only where such a rule is directly connected with takeover bids, mergers, or other transactions affecting the ownership structure or control of companies.

Effective immediately and until the German legislator amends Section 34(1) and (2) WpHG to align with EU law, BaFin will:

  • Narrow the AiC attribution concept under Section 34(2) WpHG to the standard reflected in the Transparency Directive. Going forward, an AiC attribution under Section 34(2) WpHG will be recognized only where there is an agreement that binds the parties to pursue, on a long‑term basis, a common policy regarding the issuer’s management.
  • Discontinue applying Section 34(1) sentence 1 nos. 3 and 5 WpHG as bases for voting-rights attribution for transparency purposes, because the Transparency Directive contains no corresponding attribution grounds.

It should be noted that the respective administrative practice set out in BaFin’s Issuer Guidelines and in BaFin’s FAQs on the transparency obligations pursuant to Sections 33 et seq. of the WpHG no longer applies.

At the same time, BaFin will continue to apply and interpret Section 30 of the German Securities Acquisition and Takeover Act (WpÜG) unchanged in proceedings under the WpÜG in conjunction with the provisions of the WpÜG Offer Regulation and, where applicable, the German Stock Exchange Act.