Provisional text
JUDGMENT OF THE COURT (Tenth Chamber)
12 February 2026 (*)
( Reference for a preliminary ruling – Directive 2004/109/EC – Harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market established or operating in a Member State – Notification of the acquisition of major holdings in companies – Acquisition of such holdings by persons acting in concert – Article 3(1a), fourth subparagraph – Concept of ‘more stringent’ requirements – Laws, regulations or administrative provisions adopted in relation to takeover bids, merger transactions and other transactions affecting the ownership or control of companies )
In Case C‑864/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 22 October 2024, received at the Court on 13 December 2024, in the proceedings
GT,
Beteiligungen im Baltikum AG,
VCI Venture Capital und Immobilien AG
v
Valora Effekten Handel AG,
THE COURT (Tenth Chamber),
composed of J. Passer, President of the Chamber, E. Regan and D. Gratsias (Rapporteur), Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        Valora Effekten Handel AG, by D. Lochner, Rechtsanwalt,
–        the Greek Government, by V. Baroutas and K. Boskovits, acting as Agents,
–        the European Commission, by G. Meeßen and G. von Rintelen, acting as Agents,
–        the European Central Bank, by K. Klausch, K. Lackhoff and A. Witte, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ 2004 L 390, p. 38), as amended by Directive 2013/50/EU of the European Parliament and of the Council of 22 October 2013 (OJ 2013 L 294, p. 13) (‘Directive 2004/109’).
2        The request has been made in proceedings between GT, Beteiligungen im Baltikum AG and VCI Venture Capital und Immobilien AG and Valora Effekten Handel AG (‘Valora’) concerning the validity of certain resolutions adopted at the general meeting of Valora in 2018.
Legal context
European Union law
Directive 2004/25/EC
3        In accordance with Article 1(1) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12), that directive lays down measures coordinating all the rules of the Member States relating to takeover bids for the securities of companies governed by the laws of Member States, where all or some of those securities are admitted to trading on a regulated market in one or more Member State.
4        Article 2(1)(d) of that directive is worded as follows:
‘For the purposes of this Directive:
…
(d)      “persons acting in concert” shall mean natural or legal persons who cooperate with the offeror or the offeree company on the basis of an agreement, either express or tacit, either oral or written, aimed either at acquiring control of the offeree company or at frustrating the successful outcome of a bid’.
5        Article 4 of the directive, entitled ‘Supervisory authority and applicable law’, provides, in paragraph 1:
‘Member States shall designate the authority or authorities competent to supervise bids for the purposes of the rules which they make or introduce pursuant to this Directive. …’
6        Article 5 of that directive, entitled ‘Protection of minority shareholders, the mandatory bid and the equitable price’, provides, in paragraph 1:
‘Where a natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in concert with him/her, holds securities of a company as referred to in Article 1(1) which, added to any existing holdings of those securities of his/hers and the holdings of those securities of persons acting in concert with him/her, directly or indirectly give him/her a specified percentage of voting rights in that company, giving him/her control of that company, Member States shall ensure that such a person is required to make a bid as a means of protecting the minority shareholders of that company. Such a bid shall be addressed at the earliest opportunity to all the holders of those securities for all their holdings at the equitable price as defined in paragraph 4.’
Directive 2004/109
7        Article 1(1) of Directive 2004/109 states that that directive ‘establishes requirements in relation to the disclosure of periodic and ongoing information about issuers whose securities are already admitted to trading on a regulated market situated or operating within a Member State’.
8        Article 2(1) of that directive states:
‘For the purposes of this Directive the following definitions shall apply:
…
(d)      “issuer” means a natural person, or a legal entity governed by private or public law, including a State, whose securities are admitted to trading on a regulated market.
In the case of depository receipts admitted to trading on a regulated market, the issuer means the issuer of the securities represented, whether or not those securities are admitted to trading on a regulated market;
(e)      “shareholder” means any natural person or legal entity governed by private or public law, who holds, directly or indirectly:
(i)      shares of the issuer in its own name and on its own account;
(ii)      shares of the issuer in its own name, but on behalf of another natural person or legal entity;
(iii)      depository receipts, in which case the holder of the depository receipt shall be considered as the shareholder of the underlying shares represented by the depository receipts;
…
(i)      “home Member State” means
(i)      in the case of … an issuer of shares:
–        where the issuer is incorporated in the [European] Union, the Member State in which it has its registered office,
…
…
…
(q)      “formal agreement” means an agreement which is binding under the applicable law.’
9        The fourth subparagraph of Article 3(1a) of that directive is worded 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:
…
(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].’
10      Article 9 of that directive, entitled ‘Notification of the acquisition or disposal of major holdings’, provides, in paragraph 1:
‘The home Member State shall ensure that, where a shareholder acquires or disposes of shares of an issuer whose shares are admitted to trading on a regulated market and to which voting rights are attached, such shareholder notifies the issuer of the proportion of voting rights of the issuer held by the shareholder as a result of the acquisition or disposal where that proportion reaches, exceeds or falls below the thresholds of 5%, 10%, 15%, 20%, 25%, 30%, 50% and 75%.
…’
11      Article 10 of Directive 2004/109, entitled ‘Acquisition or disposal of major proportions of voting rights’, provides:
‘The notification requirements defined in paragraphs 1 and 2 of Article 9 shall also apply to a natural person or legal entity to the extent it is entitled to acquire, to dispose of, or to exercise voting rights in any of the following cases or a combination of them:
(a)      voting rights held by a third party with whom that person or entity has concluded an agreement, which obliges them to adopt, by concerted exercise of the voting rights they hold, a lasting common policy towards the management of the issuer in question;
(b)      voting rights held by a third party under an agreement concluded with that person or entity providing for the temporary transfer for consideration of the voting rights in question;
(c)      voting rights attaching to shares which are lodged as collateral with that person or entity, provided the person or entity controls the voting rights and declares its intention of exercising them;
(d)      voting rights attaching to shares in which that person or entity has the life interest;
(e)      voting rights which are held, or may be exercised within the meaning of points (a) to (d), by an undertaking controlled by that person or entity;
(f)      voting rights attaching to shares deposited with that person or entity which the person or entity can exercise at its discretion in the absence of specific instructions from the shareholders;
(g)      voting rights held by a third party in its own name on behalf of that person or entity;
(h)      voting rights which that person or entity may exercise as a proxy where the person or entity can exercise the voting rights at its discretion in the absence of specific instructions from the shareholders.’
12      Article 24 of that directive, which is entitled ‘Competent authorities and their powers’, provides, in paragraph 1:
‘Each Member State shall designate the central authority referred to in Article 21(1) of Directive 2003/71/EC [of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ 2003 L 345, p. 64)] as the central competent administrative authority responsible for carrying out the obligations provided for in this Directive and for ensuring that the provisions adopted pursuant to this Directive are applied. Member States shall inform the Commission and ESMA accordingly. …’
Directive 2013/50
13      Directive 2013/50 inserted paragraph 1a into Article 3 of Directive 2004/109. Recital 12 of Directive 2013/50 states:
‘A harmonised regime for notification of major holdings of voting rights, especially regarding the aggregation of holdings of shares with holdings of financial instruments, should improve legal certainty, enhance transparency and reduce the administrative burden for cross-border investors. … In particular, Member States should also be able to continue to apply 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] that impose disclosure requirements more stringent than those in [Directive 2004/109].’
German law
14      The first sentence of Paragraph 33(1) of the Gesetz über den Wertpapierhandel (Law on securities trading) (BGBl. 1998 I, p. 2708), in the version applicable to the facts in the main proceedings (‘the WpHG’), provides:
‘Any person who, by acquisition, disposal or in another
way, reaches, exceeds or falls below the thresholds of 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50%, 75% of the voting rights attached to the shares held by that person in an issuer whose home Member State is the Federal Republic of Germany, or falls above or below one of the above percentages (the reporting person), must immediately inform the issuer and, at the same time, the [Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Financial Supervisory Authority, Germany)], within four trading days at the latest, taking into account Paragraph 34(1) and (2).’
15      Paragraph 34(2) of the WpHG provides:
‘The person subject to a reporting obligation shall also be allocated all the voting rights attached to shares in an issuer whose home State is the Federal Republic of Germany and which are held by a third party with whom the person subject to a reporting obligation, or the subsidiary thereof, acts in concert in relation to that issuer on the basis of an agreement or in another way, unless that concerted action is on a one-off basis. Action shall be deemed to be “concerted” where the person subject to a reporting obligation, or the subsidiary thereof,
and the third party agree on the exercise of voting rights or cooperate in another way with a view to changing the issuer’s business orientation on a lasting and significant basis. …’
16      Paragraph 44(1) of that law provides:
‘Rights attached to shares held by a person subject to a reporting obligation or in respect of which voting rights are attributed to that party in accordance with Paragraph 34 shall cease to exist for the period for which the notification obligations referred to in Paragraph 33(1) or (2) have not been complied with. …’
The dispute in the main proceedings and the question referred for a preliminary ruling
17      The applicants in the main proceedings, which are shareholders of Valora, the defendant in the main proceedings, brought an action before the Landgericht Mannheim (Regional Court, Mannheim, Germany) by which they challenged certain resolutions adopted at the general meeting of Valora in 2018.
18      After the Landgericht Mannheim (Regional Court, Mannheim) dismissed the action, the applicants in the main proceedings lodged an appeal with the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe, Germany).
19      That latter court dismissed the appeal on the ground that, in accordance with Paragraph 44(1) of the WpHG, they were not entitled to challenge the resolutions adopted at Valora’s general meeting since they had failed to comply with their notification obligations under Paragraphs 33 and 34 of the WpHG. The Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) held in that regard that the voting rights attached to the shares held in Valora by each of the applicants in the main proceedings and by a third company, K. AG, had to be attributed to them mutually, since, between 2017 and 2019, the applicants in the main proceedings and the company K. had acted in concert, within the meaning of Paragraph 34(2) of the WpHG.
20      In that regard, the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) found, on the basis of the declarations submitted by the applicants in the main proceedings and by the company K. in relation to the 2017 and 2018 ordinary general meetings of Valora, that, in 2017, the voting rights attached to the shares held by the applicants and the company K., taken together, exceeded the threshold of 10% of the voting rights in Valora, while those rights had fallen below that threshold in 2018, although the applicants had failed to inform the Federal Financial Supervisory Authority of that circumstance, as they were required to do under Paragraph 33 of the WpHG.
21      In addition, since the applicants in the main proceedings and the company K. had acted in concert, the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) did not find it necessary to determine whether the applicants were bound by an agreement on the exercise of their voting rights.
22      The Bundesgerichtshof (Federal Court of Justice, Germany), the referring court, is hearing an appeal on a point of law brought by the applicants in the main proceedings against the judgment of the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe), and is uncertain whether the fourth subparagraph of Article 3(1a) of Directive 2004/109 permits Member States to adopt a provision such as Paragraph 34(2) of the WpHG, which lays down notification requirements that go beyond those set out in Article 10 of that directive.
23      In that regard, it explains that the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) found that it should attribute voting rights to each of the applicants in the main proceedings that were held by the other applicants and by the company K.,
on the ground that there had been concerted action
between them ‘in another way’ for the purposes of the second situation referred to in the first sentence of Paragraph 34(2) of the WpHG. The Bundesgerichtshof (Federal Court of Justice) states that
if that provision were to be found to be contrary to EU law, it would have to set aside the judgment of the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) and remit the case to that latter court so that it can
determine, on the basis of further investigation, whether there was
an ‘agreement’, within the meaning of the first situation referred to in the first sentence of Paragraph 34(2) of the WpHG, between the applicants in the main proceedings and the company
K. If, on the other hand, the second situation referred to in the first sentence of Paragraph 34(2) were to be found to be compatible with EU law, the Bundesgerichtshof (Federal Court of Justice) would have to dismiss the appeal on a point of law before it. In the latter case, the existence of an ‘agreement’ between the applicants in the main proceedings and the company K., within the meaning of the first situation referred to in the first sentence of Paragraph 34(2) of the WpHG, would be irrelevant.
24      The Bundesgerichtshof (Federal Court of Justice) observes that the question of whether Paragraph 34(2) of the WpHG is compatible with EU law is disputed in German legal literature. Authors maintaining that that provision complies with EU law rely in the main on the origin of point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109. According to those authors, it is apparent that Paragraph 34(2) was specifically intended to maintain the ‘acting in concert’ concept, viewed by many Member States as having proven its worth.
25      The referring court adds that
those authors take the view that Paragraph 34(2) of the WpHG may be considered as being a provision that concerns takeover bids, within the meaning of point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109. That view is
supported by the fact that the German legislature chose to use the same wording in
Paragraph 34(2) of the WpHG as in Paragraph 30(2) of the Wertpapiererwerbs- und Übernahmegesetz (Law on the acquisition of securities and takeover bids) (BGBl. 2001 I, p. 3822), which is intended to transpose Directive 2004/25 into German law. In addition, the Federal Financial Supervisory Authority monitors compliance both with the provisions of that latter law, as a supervisory authority within the meaning of Article 4 of Directive 2004/25, and with the notification obligations laid down by the WpHG, as a competent authority in accordance with Article 24 Directive 2004/109.
26      In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to seek a preliminary ruling from the Court on the following questions:
‘Is subparagraph 4(iii) of Article 3(1a) of [Directive 2004/109] to be interpreted as precluding the second example of the first sentence of Paragraph 34(2) of [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?’
Admissibility of the request for a preliminary ruling
27      Valora disputes the admissibility of the request for a preliminary ruling on the ground that the question referred by the Bundesgerichtshof (Federal Court of Justice) is not relevant to the resolution of the dispute in the main proceedings. It submits, in essence, that
in the circumstances at issue in the case, there is
indeed
an ‘agreement’ within the meaning of Article 10(a) of Directive 2004/109. In any event, those circumstances also fall within the situation referred to in Article 10(e), relating to voting rights which are held by an undertaking controlled by a person subject to a notification obligation.
28      In that regard, it should be borne in mind that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 38 and the case-law cited).
29      In the present case, it is apparent from the information provided by the referring court that the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) found that there was concerted action ‘in another way’, within the meaning of the second situation referred to in the first sentence of Paragraph 34(2) of the WpHG, between the applicants in the main proceedings and the company K.
30      It is true that concerted action by several holders of the securities of a company that falls within the scope of Directive 2004/109 may constitute evidence of an ‘agreement’ concluded between those holders, for the purposes of Article 10(a) of that directive and the first situation referred to in the first sentence of Paragraph 34(2) of the WpHG.
31      However, the referring court states that, in the judgment concerned by the appeal on a point of law that it is considering, the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) expressly refrained from finding that there was an ‘agreement’, within the meaning of the first situation of the first sentence of Paragraph 34(2) of the WpHG, between the applicants in the main proceedings and the company
K. The Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) in fact found that the circumstance that the applicants in the main proceedings and the company K. had acted in concert with each other was sufficient to justify applying the second situation referred to in the first sentence of Paragraph 34(2) of the WpHG, relating to concertation ‘in another way’.
32      The referring court therefore enquires whether Directive 2004/109 must be interpreted as precluding a national provision, such as the second situation set out in the first sentence of Paragraph 34(2) of the WpHG. As that court has explained, if that question is answered in the negative, the appeal on a point of law will have to be dismissed. However, if the answer is in the affirmative, it
states that it would be required to uphold the appeal on a point of law, set aside the judgment of the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe) and remit the case to that court for a ruling on a possible ‘agreement’, within the meaning of Article 10(a) of Directive 2004/109 and the first situation referred to in the first sentence of Paragraph 34(2) of the WpHG, between the applicants in the main proceedings and the company K.
33      As regards Valora’s reference to Article 10(e) of Directive 2004/109, it is sufficient to observe that there is nothing in the information provided by the referring court to show that the Oberlandesgericht Karlsruhe (Higher Regional Court, Karlsruhe), which alone has jurisdiction to assess the facts of the dispute in the main proceedings, found that the situation involved a person controlling an undertaking, as referred to in that provision.
34      It follows from all the foregoing considerations that the question referred for a preliminary ruling is relevant to the resolution of the dispute in the main proceedings, such that the present request for a preliminary ruling is admissible.
Consideration of the question referred
35      By its question, the referring court asks, in essence, whether point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109 must be interpreted as precluding legislation of a Member State which provides that the notification requirements,
set out in Article 9(1) and (2) of that directive, also apply to holders of voting rights who
act in concert,
in relation to the issuer of the shares to which those voting rights are attached, in another
way than on the basis of an ‘agreement’ concluded between those holders, as referred to in Article 10(a) of that directive.
36      As is clear from the wording of the fourth subparagraph of Article 3(1a) of Directive 2004/109, 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 of that directive, subject to requirements more stringent than those the directive lays down, though there are three exceptions to that prohibition, which are set out in points (i) to (iii) of that subparagraph (judgment of 9 September 2021, Adler Real Estate and Others, C‑605/18, EU:C:2021:712, paragraph 30).
37      In particular, the exception in point (iii) of the fourth subparagraph of Article 3(1a) allows the home Member State to apply to holders of shares, or natural persons or legal entities referred to, inter alia, in Article 10 of Directive 2004/109, ‘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]’ (see, to that effect, judgment of 9 September 2021, Adler Real Estate and Others, C‑605/18, EU:C:2021:712, paragraph 32).
38      That exception is thus subject to two conditions, the first being that the requirements that are more stringent than those of Directive 2004/109 must be laid down by laws, regulations or administrative provisions relating to the types of transaction listed in the preceding paragraph above, and, the second,
that those requirements should be supervised by the authorities appointed by Member States pursuant to Article 4 of Directive 2004/25. Those two conditions are cumulative (see, to that effect, judgment of 9 September 2021, Adler Real Estate and Others, C‑605/18, EU:C:2021:712, paragraphs 33, 37 and 45).
39      The Court has found that the insertion of paragraph 1a into Article 3 of Directive 2004/109, effected by Directive 2013/50, was intended to remedy an unequal level of harmonisation of the notification requirements applicable to natural and legal persons acquiring or otherwise handling equity holdings in issuers operating on the regulated market of a Member State, arising from the fact that Directive 2004/109, prior to its amendment by Directive 2013/50, permitted the home Member State to subject holders of shares or other financial instruments to requirements more stringent than those it laid down. Directive 2013/50, which – as stated in recital 12 of that directive – was intended to establish a harmonised regime for notification of major holdings of voting rights, therefore removed that option of the Member States, subject to the exceptions set out in points (i) to (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109 (judgment of 9 September 2021, Adler Real Estate and Others, C‑605/18, EU:C:2021:712, paragraph 31).
40      Having regard to the purpose of Article 3(1a), which is to establish that regime, the exceptions to the prohibition on the home Member State subjecting holders of shares or other financial instruments to more stringent notification requirements must be interpreted strictly (judgment of 9 September 2021, Adler Real Estate and Others, C‑605/18, EU:C:2021:712, paragraph 41).
41      Accordingly, under a strict interpretation of the exception laid down in point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109, it must be held that that exception concerns only more stringent notification requirements which are directly linked to laws, regulations or administrative provisions adopted by a Member State in relation to takeover bids, merger transactions and other transactions affecting the ownership or control of companies.
42      By contrast, that exception cannot be considered as covering laws, regulations or administrative provisions relating to the disclosure of information on issuers of securities already admitted to trading on a regulated market established or operating in a Member State, which apply regardless of the existence of a takeover bid, a merger transaction or other transaction affecting the ownership or control of companies. The fact that the information to which those provisions relate might be of relevance
in a situation involving a takeover bid for the securities of the company concerned, a transaction to merge that company with another one, or another transaction affecting the ownership or control of the first company,
does not suffice to justify a different interpretation.
43      In the present case, it is apparent from the information provided by the referring court that, in accordance with the applicable German legislation, the supervision of the more stringent requirements arising from Paragraph 34(2) of the WpHG is the responsibility of the Federal Financial Supervisory Authority, which is also the authority appointed by the Federal Republic of Germany pursuant to Article 4 of Directive 2004/25.
44      Accordingly, it appears that the second of the conditions for applying the exception set out in point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109 referred to in paragraph 38 above is satisfied, subject, as far as is necessary, to verification by the referring court.
45      However, it is apparent from the information provided by that court that the second situation set out in
the first sentence of Paragraph 34(2) of the WpHG applies in all of the circumstances
that are liable to give rise to an obligation to notify under Article 9 of that directive. Consequently, it does not appear that that provision has a direct link with ‘takeover bids, merger transactions and other transactions affecting the ownership or control of companies’, as required by point (iii) of the fourth subparagraph of Article 3(1a) of that directive, something which, however, that
court must ascertain.
46      The fact,
as referred to by the referring court, that the wording of Paragraph 34(2) of the WpHG is identical to that of another provision of German law that relates to the acquisition of securities and takeover bids is irrelevant in that regard.
47      Indeed, the decisive factor when applying point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109 is not the wording of the national provision at issue but that provision’s scope, which must concern only takeover bids, merger transactions and other transactions affecting the ownership or control of companies.
48      As for the referring court’s statement that, in essence, point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109 is the result of a compromise that was struck during the procedure for the adoption of Directive 2013/50, which sought to maintain national provisions such as the second situation set out in the first sentence of Paragraph 34(2) of the WpHG, it is sufficient to observe that such a circumstance, even if established, could not justify interpreting the fourth subparagraph of Article 3(1a) such that national provisions not covered by its wording would be brought within its scope, especially since, as is clear from the case-law cited in paragraph 40 above, Article 3(1a) must be interpreted strictly.
49      In the light of all the foregoing considerations, the answer to the referring court’s question is that point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109 must be interpreted as precluding legislation of a Member State which provides that the notification requirements, set out in Article 9(1) and (2) of that directive, also apply to holders of voting rights who act in concert,
in relation to the issuer of the shares to which those voting rights are attached, in another way than on the basis of an ‘agreement’ concluded between those holders, as referred to in Article 10(a) of that directive, since the requirement arising from such national legislation does not have a direct link with ‘takeover bids, merger transactions and other transactions affecting the ownership or control of companies’, within the meaning of point (iii) of the fourth subparagraph of Article 3(1a).
Costs
50      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Tenth Chamber) hereby rules:
Point (iii) of the fourth subparagraph of Article 3(1a) of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC, as amended by Directive 2013/50/EU of the European Parliament and of the Council of 22 October 2013,
must be interpreted as meaning that it precludes legislation of a Member State which provides that the notification requirements, set out in Article 9(1) and (2) of Directive 2004/109, as amended, also apply to holders of voting rights who act in concert in relation to the issuer of the shares to which those voting rights are attached in another way than on the basis of an ‘agreement’ concluded between those holders, as referred to in Article 10(a) of Directive 2004/109, as amended, since the requirement arising from such national legislation does not have a direct link with ‘takeover bids, merger transactions and other transactions affecting the ownership or control of companies’, within the meaning of point (iii) of the fourth subparagraph of Article 3(1a).
[Signatures]
*      Language of the case: German.