Disclosure requirements – Germany
Disclosure Category: 1
German laws implementing the Shareholders Rights Directive II (SRD II Law) provide for the right of issuers to identify their shareholders.
For registered securities, there is also a civil law obligation on the part of Clearstream Banking S.A. (Clearstream Banking) to disclose the identity of the shareholder to the issuing company.
Consent
Clients holding German registered shares consent and are hereby deemed to consent to disclosure and to the appointment of the requestor as their attorney-in fact, under power of attorney to collect from Clearstream Banking such information as is required to be disclosed. Clients who do not want to grant such authority to Clearstream Banking should refrain from holding such shares in their account with Clearstream Banking.
Disclosure requirements
Pursuant to the SRD II Law, issuers are entitled to request intermediaries, including CSDs, to promptly provide relevant information to facilitate the identification of their shareholders, including their addresses. The information is to be distributed through the whole custody chain. CBF is obliged to forward respective requests to Clearstream Banking and to disclose information received from Clearstream Banking to the requesting issuer.
With regard to German registered shares accepted in Clearstream Banking, clients should be aware that the German company issuing the shares, under civil law, may require Clearstream Banking, on request and/or on a regular basis, to disclose to that company information relating to the identity of Clearstream Banking clients holding any of the company's registered shares in Clearstream Banking and the quantity of shares held.
Furthermore, should the above reporting reveal that a client's holding in the registered shares of some German companies whose shares are accepted in Clearstream Banking exceeds a certain amount of shares, the company may require Clearstream Banking to request the client to disclose the legal status and location of the final beneficiaries of that client's holding.
Background and legal basis
In Germany, companies may issue shares in bearer or registered form.
According to Section 67d(1) German Stock Corporation Act (AktG) implementing SRD II, issuers can request intermediaries, including CSDs, to promptly provide relevant information to facilitate the identification of their shareholders.
In the case of bearer shares, there is no obligation on custodians to disclose client information, although shareholders themselves may have the obligation to disclose, for example, when crossing reporting thresholds.
In the case of registered shares, the Articles of Association of a German company issuing such shares may also require Clearstream Banking, upon request and/or on a regular basis, to disclose to that company information relating to the identity of its customers. Clearstream Banking typically registers such holdings in its own name and is consequently bound by the rules of the issuing company.
Corporations that have issued registered shares may insist, in the Articles of Association, that company approval (from the board of managing directors or from the supervisory board) or shareholder approval (at the AGM or at an EGM) is required before shares can be transferred.
Sanctions
Any person who does not fulfil their disclosure obligations is subject to administrative fines.
Obligation to report threshold crossings
Notification and disclosure requirements relating to major holdings of voting rights in listed companies are governed by Section 33 and following of the German Securities Trading Act (WpHG) covering companies domiciled in Germany whose shares are admitted for trading in a regulated market on a stock exchange. There is an obligation on the shareholder to notify the Federal Financial Supervisory Authority (BaFin) and the listed company.
According to Section 33 and following of the Securities Trading Act (WpHG), any person whose shareholding in a listed company reaches, exceeds or falls below the 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% or 75% thresholds of the voting rights in a listed company by purchase, sale or any other means shall notify the company and BaFin in writing of having reached, exceeded or fallen below any of the said thresholds and of the size of its percentage of the voting rights, stating its address and the day on which it reached, exceeded or fell below the threshold.
Notification must be made immediately and at the latest within four business days.
The legal basis for such disclosure is found in the following applicable legislation:
- Securities Trading Act (Wertpapierhandelsgesetz);
- Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz);
- Stock Corporation Act (Aktiengesetz);
- Directive 2004/109/EC of the European Parliament and 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 (Directive 2004/109/EC; OJ 2004 L 390 p. 38);
- Directive (EU) 2017/828 of the European Parliament and of the Council of 17 May 2017 amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement (Directive 2017/828; OJ L 132, 20.5.2017, p. 1);
- German Capital Investment Code (Kapitalanlagegesetzbuch).