Judgment — ECLI:EU:C:2026:94
Date: 2026-02-12
Language of the case: German
Court formation: Tenth Chamber
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-864/24 – 1 
Case C-864/24 
Request for a preliminary ruling 
Date lodged: 
13 December 2024 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
22 October 2024 
Applicants at first instance and appellants in the Revision (appeal on a point 
of law): 
GT 
Beteiligungen im Baltikum AG 
VCI Venture Capital und Immobilien AG 
Defendant at first instance and respondent in the Revision (appeal on a point 
of law): 
Valora Effekten Handel AG 
  
Corrected by 
order of 3 December 2024 
[…] 
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] of 
22 October 2024 
In the case of 
EN 
REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2024 – CASE C-864/24 
 
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1. GT, 
2. Beteiligungen im Baltikum AG, […] Heidenheim, 
3. VCI Venture Capital und Immobilien AG, […] Heidenheim, 
applicants and appellants in the appeal on a point of law, 
[…] v 
Valora Effekten Handel AG, […] Ettlingen, 
defendant and respondent in the appeal on a point of law, 
[…] Following the hearing on 23 July 2024 […], the Second Civil Chamber of the 
Federal Court of Justice 
has ordered: 
I. The proceedings will be stayed. 
II. Pursuant to point (b) of the first paragraph of Article 267 and the third 
paragraph of Article 267 TFEU, the Court of Justice of the European 
Union is asked the following question on the interpretation of 
Directive 2004/109/EC of the European Parliament and of the Council 
on the harmonisation of transparency requirements in relation to 
information about issuers whose securities are admitted to trading on a 
regulated market (OJ 2004, L 390, p.[3]8): 
Is sub-paragraph 4(iii) of Article 3(1a) of Directive 2004/109/EC to be 
interpreted as precluding the second example of the first paragraph of 
Paragraph 34(2) of the Wertpapierhandelsgesetz (German Law on 
Securities Trading, ‘the WpHG’), according to which, in order to 
attribute voting rights, it is not necessary that the person subject to the 
reporting obligation and the third party have entered into an agreement 
on the exercise of voting rights, but rather it is sufficient for factual 
circumstances to reveal the existence of concerted action in another 
way? 
Reasons: 
I. 
1 The applicants are shareholders of the defendant. The defendant is a listed stock 
corporation whose corporate objective is trading in securities. Its share capital 
amounts to EUR 1 732 500 and is divided into the same number of no-par-value 
shares. 
VALORA EFFEKTEN HANDEL 
 
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2 With their action, the applicants are contesting the resolutions passed at the 
defendant’s annual general meeting on 28 May 2018 regarding agenda items 3 
(formal approval of the actions of the executive board for the 2017 financial year), 
4 (formal approval of the actions of the supervisory board for the 2017 financial 
year) and 6 (election of the supervisory board). 
3 At the time the resolution was passed, applicant 1 held 20 shares in the defendant, 
applicant 2 held 107 300 shares (amounting to 6.19% of the share capital) and 
applicant 3 held 5 shares. K. AG did not hold any shares in the defendant. 
4 In the previous year (2017), applicant 2 was registered for the annual general 
meeting with 163 846 shares (amounting to 9.46% of the share capital), K. AG 
with 20 000 shares (amounting to 1.15% of the share capital) and applicants 1 and 
3 with the same number of shares as in 2018 (20 and 5 shares, respectively). 
5 The applicants neither submitted a notification of voting rights pursuant to 
Paragraphs 33, 34 of the WpHG on the grounds that they exceeded the 10% 
threshold of voting rights in the defendant prior to the 2017 annual general 
meeting nor a notification of subsequently falling below this threshold prior to the 
2018 annual general meeting. 
6 The applicants each voted against the resolutions passed at the defendant’s annual 
general meeting in 2018 under agenda items 3, 4 and 6 and declared their 
objection for the record. In their legal action for annulment, they have asserted a 
number of grounds in order to obtain an annulment ex tunc or, in the alternative, 
annulment ex nunc or, in the further alternative, that they are invalid. 
7 The Landgericht [Mannheim] (Regional Court, Germany) dismissed the action. 
The applicants’ appeal was unsuccessful. In its reasons, the Oberlandesgericht 
Karlsruhe (Higher Regional Court, Germany; OLG Karlsruhe, BeckRS 2022, 
56281) stated that the applicants were not authorised to challenge the decision 
because they had breached their notification obligations under Paragraph 33 and 
34 of the WpHG since 2017. Pursuant to Paragraph 44(1) of the WpHG, their 
rights arising from the shares had not existed at the time of the annual general 
meeting and the filing of the action for annulment. Pursuant to Paragraph 34(2) of 
the WpHG, the voting rights of the applicants and K. AG were mutually 
attributable in the years 2017 to 2019 as a result of them acting in concert. The 
Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) left open the 
question of whether the applicants had been linked with regard to the exercise of 
their voting rights on the basis of an agreement (first example of the first sentence 
of Paragraph 34(2) of the WpHG) because they had acted in concert in another 
way, which was sufficient to meet the requirements of the second example of the 
first sentence of Paragraph 34(2) of the WpHG. 
8 The Oberlandesgericht Karlsruhe found in favour of an ‘acting in concert in 
another way’ on the basis of a large number of indications, namely that the 
applicants and [K.] AG were domiciled at the same address, that they had been 
REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2024 – CASE C-864/24 
 
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represented at the defendant’s annual general meetings by the same persons and in 
a number of court proceedings by the same law firm using the same arguments, 
that they had coordinated their right to speak at the defendant’s annual general 
meetings and that they had pursued common objectives with regard to the 
composition of the defendant’s supervisory board and executive board and, 
finally, that there were considerable personal, institutional and economic links 
between them. 
9 That court concluded that the applicants were therefore initially obliged to report, 
prior to the annual general meeting in 2017, that they had exceeded the 10% 
threshold and then again, prior to the annual general meeting in 2018, that they 
had fallen below the 10% threshold, neither of which was done. That court 
considered that the legal consequence of a breach of the notification obligations 
was the loss of voting rights at the 2018 annual general meeting and thus also the 
right to contest the resolutions passed by the annual general meeting. 
10 With their Revision (appeal on a point of law), which was declared admissible by 
the Civil Chamber of the Federal Court of Justice (‘the Chamber’), the applicants 
are continuing to pursue their claim. 
II. 
11 The requirements for a referral by the Chamber pursuant to point (b) of the first 
paragraph of Article 267 TFEU and the third paragraph of Article 267 TFEU are 
met (see  judgment of 6 October 2021, C-561/19, Consorzio Italian Management 
and Catania Multiservizi, ECLI:EU:C:2021:799, paragraph 32 et seq., with 
further references). In the present proceedings, a question arises as to the 
interpretation of EU law (see sub-section 1). The question referred for a 
preliminary ruling is relevant to the decision (see sub-section 2). 
12 1. The legal dispute raises the question of the compatibility of national law with 
EU law. 
13 (a) Firstly, for the decision on the appeal on a point of law, the provision in 
Paragraph 34(2) of the German WpHG is significant, which reads as follows: 
‘Voting rights of a third party arising from shares of the issuer in relation to 
which the Federal Republic of Germany is the country of origin, with whom 
the reporting party or its subsidiary acts in concert in relation to this issuer 
on the basis of an agreement or in another way, are also attributed in full to 
the reporting party; agreements in particular cases are excluded. Concerted 
actions require that the reporting party or its subsidiary and the third party 
agree on the exercise of voting rights or otherwise cooperate with the aim of 
permanently and significantly changing the issuer’s business focus. 
Paragraph 1 applies, mutatis mutandis, to the calculation of the third party’s 
share of voting rights.’ 
VALORA EFFEKTEN HANDEL 
 
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14 The concept of ‘acting in concert’ contained in Paragraph 34(2) of the WpHG 
corresponds to that of the predecessor provision in Paragraph 22(2) of the old 
version of the WpHG and was retained in national law despite the amendment to 
Directive 2004/109/EC by Directive 2013/50/EU of the European Parliament and 
of the Council of 22 December 2013 (OJ 2013 L 294, p. 13), which introduced the 
principle of full harmonisation. 
15 The parallel provision under German takeover law contained in Paragraph 30(2) 
of the Law on Securities Takeovers (Wertpapierübernahmegesetz, ‘the WpÜG’) 
attributes third-party voting rights to the bidder under the same conditions. It 
reads: 
‘Voting rights of a third party arising from shares of the target company, 
with whom the bidder or its subsidiary acts in concert in relation to the target 
company on the basis of an agreement or in another way, are also attributed 
in full to the bidder; agreements in particular cases are excluded. Concerted 
actions require that the bidder or its subsidiary and the third party agree on 
the exercise of voting rights or otherwise cooperate with the aim of 
permanently and significantly changing the target company’s business focus. 
Paragraph 1 applies, mutatis mutandis, to the calculation of the third party’s 
share of voting rights.’ 
16 Paragraph 30(2) of the WpÜG, in turn, is based on Directive 2004/25/EC of the 
European Parliament and of the Council of 21 April 2004 on takeover bids and 
stretches back to the Law Implementing the Takeover Directive of 14 July 2006 
(BGBl.I, p. 1426). 
17 According to the legislative materials, the rules on attribution contained in 
Paragraph 22 of the old version of the WpHG, which was retained without change 
in Paragraph 34 of the WpHG, and Paragraph 30 of the WpÜG are deliberately 
structured in parallel (see Begr. RegE eines Gesetzes zur Regelung von 
öffentlichen Angeboten zum Erwerb von Wertpapieren und von 
Unternehmensübernahmen (justification for a law laying down rules regarding 
public offers for the acquisition of securities), BT-Drucks. 14/7034, p. 70). 
According to the German legislature, this is intended to avoid confusion on the 
capital market that would arise if different attribution methods existed. At least 
when it comes to the ‘acting in concert’ rule in Paragraph 34(2) of the WpHG, the 
national legislature has held on to the parallel structure between takeover law and 
the law on transparency regarding shareholdings. 
18 The Bundesanstalt für Finanzdienstleistungsaufsicht (German Federal Financial 
Supervisory Authority) supervises compliance with the provisions of the German 
Law on Securities Acquisition and Takeover as the authority named under 
Article 4 of Directive 2004/25/EC of the European Parliament and of the Council 
of 21 April 2004 on takeover bids. Pursuant to the first sentence of Paragraph 6(1) 
of the WpHG, it is also in charge of supervision in accordance with the provisions 
of the German Law on Securities Trading and accordingly, pursuant to the first 
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sentence of Paragraph 6(2) of the WpHG, monitors compliance with the 
notification obligations pursuant to Paragraph 33 et seq. of the WpHG upon 
acquisition of significant shareholdings. 
19 (b) Based on the established facts of the case, the Oberlandesgericht Karlsruhe 
arrived at the conclusion that although there were no indications of an agreement 
on the exercise of voting rights pursuant to the first example of the first sentence 
of Paragraph 34(2) of the WpHG, the above findings on the actual cooperation 
between the applicants and K. AG were sufficient, when assessing all the factors 
of the case, to assume that they had acted in concert in another way pursuant to 
the second example of the first sentence of Paragraph 34(2) of the WpHG. 
20 (c) Among German legal scholars, the question whether Paragraph 34(2) of the 
WpHG complies with the Directive is disputed, especially where it provides for 
the attribution of voting rights even in the absence of an agreement pursuant to the 
second example of the first sentence of Paragraph 34(2) of the WpHG based on 
the parties acting in concert in another way, which goes beyond the provision of 
Article 10(a) of Directive 2004/109/EC. In essence, the dispute concerns the 
question of whether the overriding national provision falls under the reservation 
provided for in sub-paragraph 4(iii) of Article 3(1a) of Directive 2004/109/EC, 
according to which stricter national rules are permissible in so far as they relate to 
takeover bids, merger transactions and other transactions affecting the ownership 
or control of companies, supervised by the authorities appointed by Member 
States pursuant to Article 4 of Directive 2004/25/EC of the European Parliament 
and of the Council of 21 April 2004 on takeover bids. 
21 (aa) Some scholars argue that Paragraph 34(2) of the WpHG is not in conformity 
with the Directive in that it exceeds the boundaries laid down in Article 10(a) of 
Directive 2004/109/EC and that the exception does not apply (see Kraack in 
Seibt/Buck-Heeb/Harnos, Wertpapierhandelsrecht, 2024, Paragraph 34 WpHG, 
paragraph 42 et seq., 121, 140; Brellochs, AG 2019, 28, 32 et seq.; 
Burgard/Heimann, Festschrift Dauses, 2014, p. 47, 54 et seq.; Burgard/Heimann, 
WM 2015, 1445, 1449; Hitzer/Hauser, NZG 2016, 1365, 1366 et seq.; 
Kocher/Mattig, BB 2018, 1667, 1668; Kraack, AG 2017, 677, 679 et seq.; Kraack, 
EWiR 2022, 69, 70 et seq.; Stephan, Der Konzern 2016, 53, 54; Söhner, ZIP 2015, 
2451; along the same lines MünchKommAktG/Bayer, 6th ed., Paragraph 34 
WpHG, paragraph 35; Casper, Festschrift 25 Jahre WpHG 2019, p. 801, 811 et 
seq.). 
22 That view is justified by reference to the concept of full harmonisation on which 
the European regime on the disclosure of shareholdings has been based since 2013 
and according to which stricter national transparency provisions are generally 
inadmissible. The exception in sub-paragraph 4(iii) of Article 3(1a) of Directive 
2004/109/EC did not apply here because Paragraph 34(2) of the WpHG was not a 
provision relating to takeover bids. While transparency regarding shareholdings 
was intended to be a legal prerequisite for a takeover, the notification obligation 
regarding significant shareholdings applied regardless of a takeover, which is why 
VALORA EFFEKTEN HANDEL 
 
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it was not relevant that the parallel wording of the provisions of Paragraph 30(2) 
of the WpÜG and Paragraph 34(2) of the WpHG is based on a conscious decision 
by the legislature. Nor did it matter that the attribution rules in question were 
monitored by the same authority. 
23 (bb) By contrast, other legal scholars take the view that Paragraph 34(2) of the 
WpHG is in conformity with the Directive (von Hein in Schwark/Zimmer, 
Kapitalmarktrechts-Kommentar, 5th ed., Paragraph 34 WpHG, paragraph 29, 38; 
Schilha in Bürgers/Körber/Lieder, AktG, 5th ed., annex 
Paragraph 22/Paragraph 44 WpHG, paragraph 1; Uwe H. Schneider/Sven 
H. Schneider in Assmann/Uwe H. Schneider/Mülbert, Wertpapierhandelsrecht, 
8th ed., Paragraph 34 WpHG, paragraph 142; Veil in K. Schmidt/Lutter, AktG, 
5th ed., Paragraph 34 WpHG, paragraph 6; Zimmermann in Fuchs/Zimmermann, 
WpHG, 3rd ed., Paragraph 34, paragraph 74; Parmentier, AG 2014, 15, 19; 
Seibt/Wollenschläger, ZIP 2014, 545, 549; Segna, ZGR 2015, 84, 113; Veil, 
ZHR 2013, 327, 434; Veil, ZGR 2014, 544, 573; also see Guidelines for Issuers of 
the German Federal Financial Supervisory Authority, as at 30 October 2018, 
module B, p. 26 with footnote 60; Habersack in Emmerich/Habersack, Aktien- 
und GmbH-Konzernrecht, 10th ed., Paragraph 34 WpHG, paragraph 4). The 
provision was a permissible exception to the principle of full harmonisation. The 
requirements of sub-paragraph 4(iii) of Article 3(1a) of Directive 2004/109/EC 
were met. 
24 This view is primarily based on the legislative history of the Directive. The 
exemption provision in sub-paragraph 4(iii) of Article 3(1a) of Directive 
2004/109/EC was based on a compromise proposed by the Council of the 
European Union and was inserted in response to the objection by some Member 
States (including Germany) that the concept of full harmonisation without 
exceptions initially envisaged by the European Commission did not take sufficient 
account of established Member State rules on acting in concert. Such scholars 
maintain that that exception was designed to preserve existing national concepts 
on acting in concert. They state that that objective was very important in the 
negotiations as the continued permissibility of the established structures when it 
comes to acting in concert was a central concern of many Member States. 
25 In addition to historical considerations, teleological aspects are also cited. In terms 
of substantive law, Paragraph 34(2) of the WpHG could absolutely be interpreted 
as a provision under takeover law for the purposes of sub-paragraph 4(iii) of 
Article 3(1a) of Directive 2004/109/EC. Most notably, the identical wording of 
Paragraph 34(2) of the WpHG and Paragraph 30(2) of the WpÜG was based on a 
deliberate decision by the legislature. The question of whether the provision 
enacted by the Member State was recognised under EU law could not depend on 
the formalistic circumstance of whether the WpHG refers to the attribution rules 
under takeover law or intentionally replicates them. 
26 2. The question referred is relevant to the outcome of the legal dispute. There is no 
relevance if the answer to the question, regardless of what it may be, can in no 
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way affect the outcome of the case (judgment of 6 October 2021, C-561/19, 
Consorzio Italian Management und Catania Multiservizi, ECLI:EU:C:2021:799, 
paragraph 34,and the case-law cited). This is not the case in the present case. 
27 Whether the applicants succeed in the appeal on a point of law depends on the 
interpretation of sub-paragraph 4(iii) of Article 3(1a) of Directive 2004/109/EC 
under EU law. In the present case, the Oberlandesgericht Karlsruhe confirmed the 
judgment dismissing the action on the grounds that the applicants must have their 
voting rights attributed to one another by way of a concerted action in another way 
within the meaning of the second example of the first sentence of Paragraph 34(2) 
of the WpHG, without the applicants’ appeal on a point of law challenging the 
findings of the Oberlandesgericht Karlsruhe on which that assessment is based. If, 
however, EU law were to prevent the application of the second example of the 
first sentence of Paragraph 34(2) of the WpHG, the Chamber would have to set 
aside the judgment on appeal and refer the case back to the Oberlandesgericht 
Karlsruhe  in order for it to investigate there had been an agreement within the 
meaning of the first example of the first sentence of Paragraph 34(2) of the 
WpHG. If, on the other hand, the second example of the first sentence of 
Paragraph 34(2) of the WpHG complied with EU law, the appeal on a point of law 
would have to be dismissed because the applicants lost rights arising from their 
shares as a result of a breach of their notification obligations pursuant to the first 
sentence of Paragraph 44(1) of the WpHG and were therefore not entitled to 
challenge the resolutions passed at the defendant’s annual general meeting on 
28 June 2009. The alternative existence of an agreement pursuant to the first 
example of the first sentence of Paragraph 34(2) of the WpHG would not be 
relevant in that case. 
28 The Oberlandesgericht Karlsruhe  correctly assumed that the applicants – 
assuming an attribution of voting rights pursuant to the second example of the first 
sentence of Paragraph 34(2) of the WpHG for the referral procedure – lost rights 
arising from their shares pursuant to the first sentence of Paragraph 44(1) of the 
WpHG due to the failure to report that they had exceeded the 10% threshold prior 
to the 2017 annual general meeting and that they had fallen below the 10% 
threshold prior to the 2018 annual general meeting as a result of the breach of 
their notification obligations and were therefore not entitled to challenge the 
resolutions passed at the defendant’s annual general meeting on 28 June 2018. 
29 Paragraph 44 of the WpHG reads as follows: 
‘(1) Rights arising from shares belonging to a reporting party or from 
which voting rights are attributed to that party pursuant to 
Paragraph 34 cease to exist for the period for which the notification 
obligations pursuant to Paragraph 33(1) or (2) have not been complied 
with. This does not apply to claims pursuant to Paragraph 58(4) of the 
Aktiengesetz (Law on stock corporations ‘the AktG’) and 
Paragraph 271 of the AktG if the failure to notify was not intentional 
and was rectified later. If the proportion of the voting share is affected, 
VALORA EFFEKTEN HANDEL 
 
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the period pursuant to the first sentence is extended by six months in 
the event of an intentional or grossly negligent breach of the 
notification obligations. The third sentence does not apply if the 
proportion of voting rights stated in the previous incorrect notification 
deviates from the actual share of voting rights to the tune of less than 
10 per cent and no notification of reaching, exceeding or falling below 
of one of the thresholds specified in Paragraph 33 is omitted. 
(2) If a reporting party fails to comply with its notification obligations 
pursuant to Paragraph 38(1) or Paragraph 39(1), the first paragraph 
also applies to shares of the same issuer that belong to the reporting 
party.’ 
30 However, it is disputed whether the loss of rights under the first sentence of 
Paragraph 44(1) of the WpHG, which also includes the right to bring an action for 
annulment pursuant to Paragraph 245(1) of the AktG (Federal Court of Justice, 
judgment of 22 September 2020 – II ZR 399/18, ZIP 2020, 2183, paragraph 12; 
judgment of 25 September 2018 – II ZR 190/17, ZIP 2018, 2214, paragraph 10 
[both with regard to Paragraph 28 of the WpHG, old version]; Zimmermann in 
Fuchs/Zimmermann, WpHG, 3rd ed., Paragraph 44(39)) ends, with effect for the 
future, even if the required notification that a threshold has been exceeded or 
fallen below of has not been made and the exceedance or falling below of is 
subsequently reversed. 
31 (a) According to one view (Schabel/Korff, ZBB 2007, 179, 184 [with regard to 
Paragraph 28 of the WpHG, old version]), in that case there is no longer a breach 
of notification obligations which must be penalised with a loss of voting rights. 
Since the capital market only had an interest in transparency with regard to the 
current circumstances of the issuer, a notification to correct a previous interval 
was not only unnecessary, but would actually be misleading. Accordingly, the loss 
of voting rights that initially occurred when the 10% threshold was exceeded prior 
to the 2017 annual general meeting would no longer apply ex nunc once the 
shareholding fell below the 10% threshold prior to the 2018 annual general 
meeting, which is why the applicants would be entitled to challenge the 
resolutions passed at the 2018 annual general meeting. 
32 (b) According to the almost unanimous opposing view, the loss of rights pursuant 
to Paragraph 44(1) of the WpHG does not automatically end once the threshold is 
exceeded or fallen below of again, but only if the notification obligation has been 
complied with (Oberlandesgericht Hamm, Higher Regional Court Hamm AG 
2009, 876, 880; MünchKommAktG/Bayer, 6th ed., Paragraph 44 WpHG, 
paragraph 52, Paragraph 34 WpHG, paragraph 53; Becker in 
Just/Voß/Ritz/Becker, WpHG, 2015, Paragraph 28 old version, paragraph 22; 
Dieckmann in Seibt/Buck-Heeb/Harnos, Wertpapierhandelsrecht, 2024, 
Paragraph 44 WpHG, paragraph 65 et seq.; Habersack in Emmerich/Habersack, 
Aktien- und GmbH-Konzernrecht, 10th ed., Paragraph 44 WpHG, paragraph 19; 
von Hein in Schwark/Zimmer, Kapitalmarktrechts-Kommentar, 5th ed., 
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Paragraph 44 WpHG, paragraph 19; KK-WpHG/Kremer/Oesterhaus, 2nd ed., 
Paragraph 28 old version, paragraph 83; Opitz in Schäfer/ Hamann, 
Kapitalmarktgesetze, 2nd ed., Paragraph 28 WpHG old version, paragraph 39; 
BeckOGK AktG/Petersen, as at 1 June 2024, Paragraph 22, paragraph 211; 
Poelzig in Ebenroth/ Boujong/Joost/Strohn, HGB, 4th ed., Paragraph 44 WpHG, 
paragraph 8; Schilha in Bürgers/ Körber/Lieder, AktG, 5th ed., annex 
Paragraph 22/Paragraph 44 WpHG, paragraph 7; Veil in K. Schmidt/ Lutter, 
AktG, 4th ed., Paragraph 44 WpHG, paragraph 14; Uwe H. Schneider/Sven 
H. Schneider in Assmann/Uwe H. Schneider/Mülbert, Wertpapierhandelsrecht, 
8th ed., Paragraph 44 WpHG, paragraph 57 et seq.; Zimmermann in 
Fuchs/Zimmermann, WpHG, 3rd ed., Paragraph 44, paragraph 20; Nartowska, 
Rechtsverlust nach Paragraph 28 WpHG, 2013, p. 214 et seq.; 
Heinrich/Kiesewetter, Konzern 2009, 137, 145; Riegger, Festschrift Westermann, 
2008, p. 1331, 1339; Sven H. Schneider/Uwe H. Schneider, ZIP 2006, 493, 496 et 
seq.; cf. Oberlandesgericht Frankfurt, (Higher Regional Court Frankfurt) 
ZIP 2007, 864, 867). 
33 Some proponents of this view in turn dispute whether, in the event of a repeated 
breach of notification obligations, the fact that the latest notification obligation has 
been complied with is sufficient for no loss of rights to occur (argued by 
MünchKommAktG/Bayer, 6th ed., Paragraph 44 WpHG, paragraph 51; KK-
WpHG/Kremer/Oesterhaus, 2nd ed., Paragraph 28 old version, paragraph 83; 
Poelzig in Ebenroth/Boujong/Joost/Strohn, HGB, 4th ed., Paragraph 44 WpHG, 
paragraph 8; Uwe H. Schneider/Sven H. Schneider in Assmann/Uwe 
H. Schneider/Mülbert, Wertpapierhandelsrecht, 8th ed., Paragraph 44 WpHG, 
paragraph 59; BeckOGK AktG/Petersen, as at 1 June 2024, Paragraph 22, 
paragraph 209; Zimmermann in Fuchs/Zimmermann, WpHG, 3rd ed., 
Paragraph 44, paragraph 20; Nartowska, Rechtsverlust nach Paragraph 28 WpHG, 
2013, p. 207 et seq.; Heinrich/Kiesewetter, Konzern 2009, 137, 145; Sven 
H. Schneider/Uwe H. Schneider, ZIP 2006, 493, 496) or whether the loss of 
voting rights only ends when all notification obligations have subsequently been 
complied with (argued by Dieckmann in Seibt/Buck-Heeb/Harnos, 
Wertpapierhandelsrecht, 2024, Paragraph 44 WpHG, paragraph 66; Opitz in 
Schäfer/Hamann, Kapitalmarktgesetze, 2nd ed., Paragraph 28 WpHG old version, 
paragraph 41; Riegger, Festschrift Westermann, 2008, p. 1331, 1339), which is 
irrelevant for the present case given that no notification whatsoever took place. 
Therefore, according to both views, the applicants would not be authorised to 
challenge the resolutions passed at the 2018 annual general meeting. 
34 (c) The last view is the correct one. The loss of rights pursuant to the first sentence 
of Paragraph 44(1) of the WpHG does not end automatically in the event that, by 
way of correction, shareholdings exceed or fall below the threshold, but only once 
the latest notification obligation has been complied with. 
35 (aa) The wording of the first sentence of Paragraph 44(1) of the WpHG is an 
argument against the view that the loss of rights ends regardless of whether the 
notification obligation is subsequently complied with. Pursuant to the first 
VALORA EFFEKTEN HANDEL 
 
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sentence of Paragraph 44(1) of the WpHG, the rights are lost for the period for 
which the notification obligations pursuant to Paragraph 33(1) or (2) of the WpHG 
are not complied with. It follows from this that the notification obligations 
continue to apply for as long as they have not been complied with and do not 
cease to apply because the reporting party later falls below the reportable 
threshold because of the sale of shares or exceeds it again by making acquisitions. 
36 The fact that the statutory provision governing a loss of voting rights is structured 
in a way that does not include the option to submit a notification at a later time 
and thereby regain the voting rights is also evident from the wording of the second 
sentence of Paragraph 44(1) of the WpHG, which makes the retroactive 
cancellation of the loss of certain shareholder rights – which are not relevant in the 
present case – dependent on a subsequent notification. 
37 (bb) The legislative history of the provision does not change that assessment. The 
government draft of the German law to implement the directive amending the 
Transparency Directive does not address the issue raised herein. In so far as the 
draft law states that the failure to comply with the obligation ends at the moment 
at which the reporting party either makes a proper notification or no longer holds 
the instruments in question, which is the case in the event of sale, expiry or 
exercise (RegE zum Gesetz zur Umsetzung der Transparenzrichtlinie-
Änderungsrichtlinie, BT-Drucks. 18/5010, p. 48 on Paragraph 28(2) old version, 
which corresponds to Paragraph 44(2) of the WpHG), this statement only refers to 
the newly added provision of Paragraph 44(2) of the WpHG, which has extended 
the loss of rights of the reporting party to the non-compliance with the notification 
obligations with regard to the instruments covered by Paragraph 38(1) of the 
WpHG and with regard to the aggregation prescribed by Paragraph 39 of the 
WpHG (see Dieckmann in Seibt/Buck-Heeb/Harnos, Wertpapierhandelsrecht, 
2024, Paragraph 44 WpHG, paragraph 99 et seq.; Habersack in 
Emmerich/Habersack, Aktien- und GmbH-Konzernrecht, 10th ed., Paragraph 44 
WpHG, paragraph 19; BeckOGK AktG/Petersen, as at 1 June 2024, Paragraph 22, 
paragraph 212; von Hein in Schwark/Zimmer, Kapitalmarktrechts-Kommentar, 
5th ed., Paragraph 44 WpHG, paragraph 24; see also ‘Emittentenleitfaden der 
BaFin’  (Guidelines for Issuers of the German Federal Financial Supervisory 
Authority, as at 30 October 2018, module B, p. 48; dissenting opinion Poelzig in 
Ebenroth/Boujong/Joost/Strohn, HGB, 4th ed., Paragraph 44 WpHG, paragraph 8 
with footnote 28). Another reason why such an understanding of the explanatory 
memorandum appears expedient is because shares, unlike instruments, cannot be 
‘exercised’ and cannot ‘expire’, i.e. the examples mentioned in the explanatory 
memorandum for an alternative end to the loss of rights do not play a role in the 
direct scope of application of Paragraph 44(1) of the WpHG – with the exception 
of a sale. It seems far-fetched that the legislature, in choosing to refer to 
instruments in its wording of the explanatory memorandum, intended to take a 
position in the conflict of opinion referred to above and to implicitly oppose the 
opinion in case-law and legal literature which had been prevailing since 2015. 
REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2024 – CASE C-864/24 
 
12  
38 (cc) Teleological aspects also support the assumption that the loss of voting rights 
pursuant to the first sentence of Paragraph 44(1) of the WpHG does not end 
without a notification due to the situation having de facto been resolved. Such an 
understanding of transparency regarding shareholdings safeguards the proper 
functioning of the capital market and cannot be dismissed as a mere fudge with no 
apparent added value (as is argued by Schabel/Korff, ZBB 2007, 179, 184). 
Pursuant to no. 5 and no. 6 of the Annex to Paragraph 12(1) of the Verordnung zur 
Konkretisierung von Anzeige-, Mitteilungs- und Veröffentlichungspflichten nach 
dem Wertpapierhandelsgesetz (WpAV) (Ordinance Detailing Disclosure, 
Notification and Publication Obligations under the German Securities Trading Act 
‘the WpAV’), the essential content of a notification of voting rights includes the 
date of the reportable change and the proportion of voting rights held after the last 
reportable change. If the requirement to submit a notification were to be waived 
because the situation had de facto been resolved, the latest information submitted 
would not reflect the actual circumstances. 
39 What is more, the capital market or the issuer may have become aware of the 
reportable change by means other than a proper notification by the reporting party. 
In such a case, if shareholdings exceed or fall below the original threshold, 
transparency regarding shareholdings can only be achieved through proper 
notification (see also Koch, AktG, 18th ed., Paragraph 20, paragraph 7). 
40 The opposing view is wrong when it argues that the requirement to submit a 
notification at a later time counteracts the idea of transparency because a 
notification repeating the original notification and a subsequent publication would 
confuse the investing public (Schabel/Korff, ZBB 2007, 179, 184). Confusion can 
be ruled out for the simple reason that because the indication of the date on which 
the threshold was last exceeded or fallen below of in the current notification 
provides sufficient transparency. 
41 (dd) Moreover, the fact that, in the event of a repeated breach of notification 
obligations, the fulfilment of the latest notification obligation is considered 
sufficient (MünchKommAktG/Bayer, 6th ed., Paragraph 44 WpHG, paragraph 51; 
KK-WpHG/Kremer/Oesterhaus, 2nd ed., Paragraph 28 old version, paragraph 83; 
Poelzig in Ebenroth/Boujong/Joost/Strohn, HGB, 4th ed., Paragraph 44 WpHG, 
paragraph 8; Uwe H. Schneider/Sven H. Schneider in Assmann/Uwe 
H. Schneider/Mülbert, Wertpapierhandelsrecht, 8th ed., Paragraph 44 WpHG, 
paragraph 59; BeckOGK AktG/Petersen, as at 1 June 2024, Paragraph 22, 
paragraph 209; Zimmermann in Fuchs/Zimmermann, WpHG, 3rd ed., 
Paragraph 44, paragraph 20; Nartowska, Rechtsverlust nach Paragraph 28 WpHG, 
2013, p. 207 et seq.; Heinrich/Kiesewetter, Konzern 2009, 137, 145; Sven 
H. Schneider/ Uwe H. Schneider, ZIP 2006, 493, 496; dissenting opinion 
Dieckmann in Seibt/ Buck-Heeb/Harnos, Wertpapierhandelsrecht, 2024, 
Paragraph 44 WpHG, paragraph 66; Opitz in Schäfer/Hamann, 
Kapitalmarktgesetze, 2nd ed., Paragraph 28 WpHG old version, paragraph 41; 
Riegger, Festschrift Westermann, 2008, p. 1331, 1339), does not suggest that the 
VALORA EFFEKTEN HANDEL 
 
13 
loss of rights automatically ends without a notification in the event of the 
subsequent lapse of the reportable event. 
42 The question of whether all notification obligations must be fulfilled in the event 
of repeated violations must be distinguished from the question of whether at least 
the last notification obligation must be fulfilled in the event of a factual correction 
of the reportable situation. Even the legal scholars who, in the case of multiple 
violations of notification obligations, consider the fulfilment of the latest 
notification obligation to be sufficient for the loss of voting rights to end 
(MünchKommAktG/Bayer, 6th ed., Paragraph 44 WpHG, paragraph 51; Poelzig 
in Ebenroth/Boujong/Joost/Strohn, HGB, 4th ed., Paragraph 44 WpHG, 
paragraph 8; Sven H. Schneider/Uwe H. Schneider, ZIP 2006, 493, 496), assume a 
loss of voting rights in the event of a complete failure to notify. 
43 (ee) Furthermore, in relation to the notification obligations under stock 
corporation law pursuant to Paragraph 20(5) of the AktG, which are not applicable 
in the present case due to the priority of the capital market disclosure obligations 
(Paragraph 20(8) of the AktG in conjunction with Paragraph 33(4) of the WpHG), 
the prevailing opinion also assumes that the fact that a shareholding that has fallen 
below a threshold must be notified even if the original notification had been 
omitted (MünchKommAktG/Bayer, 6th ed., Paragraph 20, paragraph 27; Koch, 
AktG, 18th ed., Paragraph 20, paragraph 7; BeckOGK AktG/Petersen, as at 1 June 
2024, Paragraph 20, paragraph 51; Grigoleit/Rachlitz, AktG, 2nd ed., 
Paragraph 20, paragraph 21; Schilha in Bürgers/Körber/Lieder, AktG, 5th ed., 
Paragraph 20, paragraph 19; Veil in K. Schmidt/Lutter, AktG, 5th ed., 
Paragraph 20, paragraph 31; Emmerich in Emmerich/Habersack, Aktien- und 
GmbH-Konzernrecht, 10th ed., Paragraph 20 AktG, paragraph 29; 
MünchHdbGesR II/Krieger, 5th ed. Paragraph 69, paragraph 126; Arends, Die 
Offenlegung von Aktienbesitz nach deutschem Recht, 2000, p. 16; Burgard, Die 
Offenlegung von Beteiligungen, Abhängigkeits- und Konzernlagen bei der 
Aktiengesellschaft, 1990, p. 53; leaving the question open, Windbichler in 
GroßkommAktG, 5th ed., Paragraph 20, paragraph 38 [dissenting opinion in the 
4th ed.]). By contrast, a dissenting opinion that is occasionally expressed with 
regard to Paragraph 20(5) of the AktG (Keßler in Henssler/Strohn, GesR, 6th ed., 
Paragraph 20 AktG, paragraph 7; KK-AktG/ Koppensteiner, 3rd ed., 
Paragraph 20, paragraph 21 and 50; Diekmann, DZWiR 1994, 13, 14) is not 
convincing because, for the reasons stated above, it runs counter to the interest in 
the transparency of shareholdings. 
[…] 
Lower courts: 
Landgericht Mannheim (Mannheim Regional Court, Germany), judgment of 
1 March 2021 – 24 0 36/19 
REQUEST FOR A PRELIMINARY RULING OF 22. 10. 2024 – CASE C-864/24 
 
14  
Oberlandesgericht Karlsruhe (Karlsruhe Higher Regional Court, Germany), 
decision of 14 November 2022 – 1 U 59/21 – 
VALORA EFFEKTEN HANDEL 
 
15 
 
FEDERAL COURT OF JUSTICE 
ORDER 
[…] of 
3 December 2024 
In the case of 
1. GT, 
2. Beteiligungen im Baltikum AG, […] Heidenheim, 
3. VCI Venture Capital und Immobilien AG, […] Heidenheim, 
applicants and appellants in the appeal on a point of law, 
[…] v 
Valora Effekten Handel AG, […] Ettlingen, 
defendant and respondent in the Revision (appeal on a point of law), 
[…] At the hearing on 3 December 2024 […], the Second Civil Chamber of the 
Bundesgerichtshof (Federal Court of Justice) 
has ordered: 
At the request of the defendant pursuant to Paragraph 320(1) of the 
Zivilprozessordnung (Code of Civil Procedure), point 3 of the grounds for 
the order is corrected to the effect that its last sentence must, instead of 
‘K. AG did not hold any shares in the defendant.’ 
read 
‘K. AG did not notify holding any shares in the defendant on the occasion of 
the 2018 annual general meeting.’ 
 
[Rejection of the further application for correction of the facts and 
justification for this] 
[…]