Opinion of the Advocate General — ECLI:EU:C:2021:220
Date: 2021-03-18
Language of the case: German
Subject matter: Right of establishment;Internal market - Principles;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, the FMA assumed the following in this respect: the Group 
comprising — inter alia — Adler Real Estate AG [AR AG] (the first appellant in 
the present main proceedings), Petrus Advisers LLP [PA LLP] (the second 
appellant in the present main proceedings) and TZ (the third appellant in the 
present main proceedings) constituted legal entities acting in concert within the 
meaning of Point 6 of Paragraph 1 ÜbG. The voting rights of these parties in the 
issuer (Conwert Immobilien SE) became reciprocally attributable to these parties 
pursuant to Paragraph 23(1) ÜbG for the first time on 29 September 2015. 
In the question as to whether the criteria for ‘legal entities acting in concert’ 
within the meaning of Point 6 of Paragraph 1 ÜbG, in conjunction with 
Paragraph 23(1) thereof, had been fulfilled, the FMA considered itself to be bound 
by a decision of 22 November 2016 (corrected on 1 December 2016) having the 
force of res judicata taken by the Takeover Commission. On account of this 
binding effect, the FMA could no longer conduct independent investigations with 
regard to whether the parties had fulfilled the objective criteria of the criminal 
provision applied by the FMA (owing to a breach of the obligations regarding 
holdings publicity), at least to the extent of the question of whether the parties 
constituted legal entities acting in concert and whether the holding of over 30% 
was attributable to them. In the criminal proceedings conducted by the FMA, 
therefore, it was primarily only the mens rea elements that had to be clarified. The 
FMA was also bound by the legal classification in the decision taken by the 
Takeover Commission. By way of the aforementioned decision, which had the 
force of res judicata, the Takeover Commission bindingly established, in 
application of the provisions of the ÜbG adopted to transpose Directive 
2004/25/EC, that the parties to the proceedings before the Takeover Commission 
had wrongly failed to make a mandatory offer and justified this on the basis that 
the parties had achieved the threshold of 30% relevant for mandatory offers on the 
basis of the aggregation criteria for ‘legal entities acting in concert’. For more 
details regarding those proceedings before the Takeover Commission, the 
referring court refers to the statements made in its request for a preliminary ruling 
of 16 August 2018, conducted by the Court of Justice as Case C-546/18, Adler 
Real Estate and Others. 
6. Directive 2004/25/EC was transposed in Austria by the Bundesgesetz betreffend 
Übernahmeangebote (Federal Law on takeover bids — ÜbG), BGBl. [Federal Law 
Gazette] I No 127/1998 (current version BGBl. I No 107/2017). 
The Takeover Commission, by the decision of which the FMA considered itself to 
be bound when issuing the administrative penalty decisions at issue in the main 
proceedings, is the supervisory authority provided for in Article 4 of [Or. 5] 
Directive 2004/25/EC of the European Parliament and of the Council of 21 April 
2004 on takeover bids (hereinafter: Directive 2004/25/EC). 
The Takeover Commission is an authority that is completely separate and 
different from the FMA. 
ADLER REAL ESTATE AND PETRUS ADVISERS 
 
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Applicable provisions of national law: 
7. The BörseG 1989 in the version BGBl. I 98/2015 (hereinafter: BörseG 1989) was 
applicable at the relevant time of the offence. Point 7 of Paragraph 92 BörseG 
1989 establishes the case of ‘voting rights that are attributable to the person 
pursuant to Paragraph 23(1) or (2) ÜbG’ as the criteria for the attribution of voting 
rights to a person (the present legal situation has an identical provision in Point 7 
of Paragraph 133 BörseG 2018). Point 7 of Paragraph 97 BörseG is therefore 
attached to Paragraph 23(1) ÜbG, which provides that voting rights of an issuer 
are attributable to persons who are to be classified as ‘legal entities acting in 
concert’. In addition, regarding the description of the attribution criteria of 
Paragraph 23(1) ÜbG, the legislature refers to the legal definition of Point 6 of 
Paragraph 1 ÜbG, in which the term ‘legal entities acting in concert’ is described 
as follows: 
‘6. Legal entities acting in concert: natural or legal persons who cooperate 
with the offeror on the basis of an agreement in order to acquire or exert 
control over the offeree company, in particular by means of coordination of 
the voting rights, or cooperate with the offeree company on the basis of an 
agreement in order to prevent the successful outcome of a takeover bid. If a 
legal entity holds an indirect or direct controlling interest (Paragraph 22(2) 
and (3)) in one or more other legal entities, there is a presumption that all 
those legal entities act in concert; the same applies if several legal entities 
have made an agreement regarding the exercise of their voting rights when 
electing members of the Supervisory Board.’ 
8. In summary, therefore, the aforementioned attribution provision means that 
natural and/or legal persons that cooperate in order to acquire or exert a (joint) 
significant holding (30%) in the issuer must have reciprocally attributable 
holdings in the issuer. The legal consequence of aggregation pursuant to Point 7 of 
Paragraph 92 BörseG 1989 is that those persons are subject to an obligation to 
notify the issuer within the meaning of Article 9 of the Transparency Directive. 
9. With this provision, the Austrian legislature went beyond the requirements of the 
Transparency Directive, because the latter makes no provision for such attribution 
criteria [Or. 6]; in particular, this attribution criterion goes significantly beyond 
the cases under Article 10(a), because these cases are defined more narrowly, for 
instance by requiring the existence of a binding ‘agreement’ on a ‘lasting common 
policy’ [...]. The obligation applicable to ‘legal entities acting in concert’ to 
provide the issuer with appropriate notification pursuant to the BörseG 1989 and 
the penalties applied in the main proceedings owing to a failure to comply with 
that obligation must therefore be regarded as ‘more stringent requirements’ within 
the meaning of Article 3(1a), fourth subparagraph, (iii), of the Transparency 
Directive. 
REQUEST FOR A PRELIMINARY RULING OF 25. 9. 2018 — CASE C-605/18 
 
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The first question referred: 
10. Against this background, however, the referring court raises the question of 
whether the harmonising provisions of the Transparency Directive and the 
principle of full harmonisation enshrined in that directive allow such a ‘more 
stringent’ provision of Austrian law. That would only be the case if that provision 
met the conditions laid down in the Directive for ‘more stringent’ national 
standards. 
11. The Transparency Directive governs the conditions for more stringent 
requirements as follows: 
[...]‘The home Member State may not make a holder of shares, or a natural 
person or legal entity referred to in Article 10 or 13, subject to requirements 
more stringent than those laid down in this Directive, except when: 
(i)… 
(ii)… 
(iii) applying laws, regulations or administrative provisions adopted in 
relation 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.’ 
[...] [Or. 7]  
[...] 
12. In the (Austrian) jurisprudential literature, there is no consensus on whether the 
‘more stringent requirements’ governed by the Austrian legislature in Point 7 of 
Paragraph 92 BörseG are compatible with the requirements of Article 3 of the 
Transparency Directive. 
13. The view taken in some academic circles is that Article 3(1a), fourth 
subparagraph, (iii), ‘applies only to legislation that is enforced by the takeover 
authorities’, and the Austrian Takeover Commission does not have ‘such 
competence in the context of holdings publicity, however’ [...]. This view taken in 
the academic literature therefore assumes that, in connection with takeover bids, 
merger transactions and other transactions, a more stringent provision on the 
applicable holdings publicity is permissible only if that more stringent provision 
on holdings publicity is also ‘supervised’ by the (or an) authority that has been 
established and ‘designated’ as the authority (supervisory authority) within the 
meaning of Article 4 of Directive [Or. 8] 2004/25/EC. The holdings publicity 
standards applied in the main proceedings, however, are not supervised by the 
Takeover Commission established (and also clearly ‘designated’ to the European 
ADLER REAL ESTATE AND PETRUS ADVISERS 
 
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Commission pursuant to Article 4 of the Directive) pursuant to Article 4 of 
Directive 2004/25/EC, but rather by the FMA. 
14. Although the opposing view taken in the literature accepts that the wording of 
Article 3(1a), fourth subparagraph, (iii), does suggest such a stance, it 
substantiates conformity with the Directive on the basis that the history of the 
Directive militates in favour of a different interpretation […]. 
15. The referring court takes the view that the grammatical structure of Article 3(1a), 
fourth subparagraph, (iii), could support the stance that the derogation provision 
requires that an authority designated pursuant to the Directive on takeover bids 
(2004/25/EC) supervise the more stringent requirements regarding holdings 
publicity. The reason for this is that, in so far as the EU legislature makes the 
possibility of applying more stringent requirements subject to the condition that 
the Member State ‘[applies] laws, regulations and administrative provisions’, this 
certainly does not refer to ‘laws, regulations and administrative provisions’ under 
takeover law, but rather those under holdings transparency law, which have more 
stringent requirements. Otherwise, the stipulation that these ‘laws, regulations and 
administrative provisions’ must be ‘adopted in relation to’ takeover law (‘... in 
Zusammenhang stehen’, ‘... adoptadas en relación con …’) would not make any 
sense. 
16. In light of the fact that the derogation criteria referred to here is embedded in a 
list, a comparison with points (i) and (ii) of the fourth subparagraph of 
Article 3(1a) of the Transparency Directive also militates in favour of the 
aforementioned stance: These other two points address specific subject matter of 
transparency law (i.e. not of takeover law) in respect of which ‘more stringent’ 
requirements are to be permissible. This would appear to suggest that the EU 
legislature also intended such subject matter in the case of point (iii). 
17. The fact that the legislature requires that the ‘laws, regulations and administrative 
provisions adopted in relation’ to takeover law must be ‘supervised’ by the 
authority designated by the Member State pursuant to Directive 2004/25/EC could 
also militate in favour of this stance. If it had intended the ‘laws, regulations and 
administrative provisions’ addressed here to be those that the Member State 
adopted to transpose Directive 2004/25/EC (and not those adopted only ‘in 
[Or. 9] relation’ thereto — certainly conceivable here are provisions for 
transposing the Transparency Directive, which are merely attached to criteria 
under takeover law), the requirement that these laws, regulations and 
administrative provisions must be supervised by an authority designated pursuant 
to Article 4 of Directive 2004/25/EC would not have an independent meaning, 
because, in relation to the takeover provisions, the cited directive in any event 
already requires that the provisions adopted to transpose it are supervised by such 
a supervisory authority. In cases of doubt, however, the EU legislature cannot be 
assumed to have created a redundant provision. 
REQUEST FOR A PRELIMINARY RULING OF 25. 9. 2018 — CASE C-605/18 
 
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18. Overall, a grammatical and logical interpretation of the provision would appear to 
suggest that, as a condition for a ‘more stringent requirement’ in respect of 
holdings publicity, the EU legislature requires that that requirement 
- does fall outside the actual scope of Directive 2004/25/EC, 
- but is adopted ‘in relation’ thereto 
and 
- is subject, under national law, to the competence of the authority (or 
one of the authorities) — also — specifically designated for that 
purpose pursuant to Article 4 of Directive 2004/25/EC. 
19. Moreover, it would not be possible for this interpretation to result in any illogical 
outcomes [...] or unwanted random effects, because the question of whether to 
structure their legal systems accordingly remains in the hands of the Member 
States. No further considerations are necessary if the authority designated 
pursuant to Directive 2004/25/EC is identical to that which is also responsible for 
supervising the more stringent provisions on the transparency of holdings, for 
instance in the case of Member States that decide to have the transposition 
provisions of both directives carried out by one and the same supervisory 
authority and designate that authority to the Commission under both directives. 
However, the interpretation explained above also does not require anything 
impossible or inexpedient in a case such as that of the Austrian legal situation, in 
which the competence of the supervisory authorities is supposed to be separated 
between takeover law (Takeover Commission) and the supervision of holdings 
transparency (FMA): since, depending on the area of legislation concerned, 
Directive 2004/25/EC does not preclude a Member State from also designating 
different, and therefore also several, authorities in parallel as supervisory 
authorities pursuant to Article 4 of the Directive, Austria could have designated — 
in order to make use of the authorisation pursuant to Article 3(1a), fourth 
subparagraph, [Or. 10] (iii), of Directive 2004/109/EC — the FMA as the 
supervisory authority — with sectoral competence in parallel to the Takeover 
Commission — pursuant to Article 4 of Directive 2004/25/EC for the purpose of 
supervising ‘more stringent requirements’. For the referring court, however, it has 
not been proven that this happened. If it did happen, it has not been proven that it 
took place before the time of the offence at issue here. 
20. According to the opinion explained above, a national provision which provides 
that the more stringent publicity provisions adopted in relation to takeover law are 
to be ‘supervised’ by a supervisory authority that has not been ‘designated’ for 
that purpose within the meaning of Article 4 of Directive 2004/25/EC would not 
meet the requirements of Article 3 of the Transparency Directive. 
21. The referring court considers that clarification is required as to whether, in the 
given context, considerations regarding grammatical and logical interpretation 
or — contrary to those considerations — the motives of individual players 
ADLER REAL ESTATE AND PETRUS ADVISERS 
 
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involved in the legislative process ought to be decisive [...]. Arguments of 
transparency and legal clarity, as well as the exceptional nature of the individual 
criteria of Article 3 of the Transparency Directive, militate in favour of a 
restrictive interpretation not least given the fact that the Member States are free to 
use this derogation provision themselves for the purpose of clarity by means of 
appropriate transposition and explicit designation of the authority. 
The second question referred: 
22. In principle, the second question referred corresponds essentially to the third 
question referred (II.3) in the request for a preliminary ruling in Case C-546/18, 
Adler Real Estate and Others, but it is presented differently in two respects in the 
present case: Firstly, this question is not raised in the present case from the 
perspective of, and within the scope of, Directive 2004/25/EC, but rather from the 
point of view of, and within the scope of, the Transparency Directive (Directive 
2004/109/EC as amended by Directive 2013/50/EU). Secondly, Case C-546/18 
concerns the extent to which, in the light of Article 47 of the Charter of 
Fundamental Rights (Charter), an authority functioning as a supervisory authority 
within the meaning of Directive 2004/25/EC can be bound, when imposing 
penalties in implementation of that directive, by an earlier, non-criminal decision 
taken by the same authority (supervisory authority) in application of provisions 
implementing that same directive (on the one hand in cases in which the parties 
are identical [Question II.3. in relation to Case C-546/18], but on the other hand in 
cases in which the parties are not identical [Question II.4. in relation to Case 
C-546/18]). [Or. 11] 
23. By contrast, the question raised in the present case asks whether EU law together 
with Article 47 of the Charter precludes an authority from being bound by a non-
criminal decision having the force of res judicata taken by the ‘supervisory 
authority’ within the scope of Directive 2004/25/EC in (administrative) penalty 
proceedings before the ‘competent authority’ pursuant to the Transparency 
Directive (FMA) in order to sanction more stringent, but — owing to the 
connection with takeover matters within the meaning of Directive 2004/25/EC — 
permissible, requirements pursuant to the Transparency Directive (in the case of 
identical parties — which is the case here). 
24. For further details, the referring court refers to the statements made in its request 
for a preliminary ruling in relation to Case C-546/18 and provides only a brief 
summary of its considerations, transferred to the present case, as follows: 
25. In the main proceedings, the FMA conducted administrative-penalty proceedings 
that come within the scope of EU law and therefore of the Charter of Fundamental 
Rights (the Charter). In this respect, it considered itself to be bound by a decision 
having the force of res judicata taken by the Takeover Commission, which was 
likewise issued within the scope of EU law, but not in administrative-penalty 
proceedings. The binding effect means that, in the question as to whether the 
REQUEST FOR A PRELIMINARY RULING OF 25. 9. 2018 — CASE C-605/18 
 
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appellants were to be regarded as ‘legal entities acting in concert’ at the time 
germane to the offence and must therefore be deemed to be guilty of achieving the 
threshold of 30% of the voting rights of the issuer on account of the reciprocal 
attribution of their holdings, the FMA is unable to conduct fact-finding 
investigations or an independent legal assessment. The referring court raises the 
question as to whether this consequence is compatible with Article 47 of the 
Charter (or whether this consequence is in fact required under EU law) or, having 
due regard for Article 47 of the Charter, as to whether the assumption that the 
decision of the Takeover Commission in criminal proceedings is binding should 
not be regarded as being sound. 
(B) Inadmissibility of the appeal on a point of law: 
[...] [Or. 12] 
BUNDESVERWALTUNGSGERICHT  
(FEDERAL ADMINISTRATIVE COURT) 
[...] on 25 September 2018 
[...]