GERMANY Law and Practice Contributed by: Marc Löbbe, Michaela Balke, Oliver Schröder and Martin Kolbinger, SZA Schilling, Zutt & Anschütz
involves, banking or environmental authorities may be competent to review the transaction or aspects thereof. In other cases, public licences (eg, in the pharmaceutical sector) need to be renewed due to the change of control in the tar - get company. Aside from these industry-specific cases, many transactions are subject to merger clearance (see 2.4 Antitrust Regulations ), and acquisitions by non-EU/EFTA investors may be subject to FDI review (see 2.3 Restrictions on Foreign Invest- ments ). In addition, a review under the new EU Foreign Subsidy Regulation may apply, where non-EU acquirers of certain (large) EU targets have received significant government subsidies. Key Regulator for Public M&A The German Securities Acquisition and Takeover Act ( Wertpapiererwerbs- und Übernahmegesetz ), the Takeover Act Offer Ordinance ( WpÜG Ange- botsverordnung ) and other statutory ordinances regulate public takeovers of listed companies. Legislation not specific to public takeovers also applies, including the rules of the Market Abuse Regulation, the Securities Trading Act ( Wertpa- pierhandelsgesetz ) and the Stock Exchange Act ( Börsengesetz ), as well as Stock Exchange Ordi - nances ( Börsenordnungen ). Compliance with these rules of German takeover law is generally overseen by the Federal Financial Supervisory Authority ( Bundesanstalt für Finanzdienstleis- tungsaufsicht , or BaFin). The German Securities Acquisition and Takeover Act governs any public offer ( öffentliches Ange - bot ) to acquire shares of publicly listed stock corporations, European companies (SEs) and partnerships limited by shares that have their registered seat in Germany and whose shares are traded on the German regulated market (the German Securities Acquisition and Takeover Act
does not apply to stock corporations listed only in the open market segment) or, under certain further conditions, that have their registered seat in another European Economic Area member state. There are three classes of public offers: • a (voluntary) takeover offer ( Übernahmeange- bot ), aimed at obtaining control of the target – ie, at least 30% of the target’s voting rights – individually or on a joint basis acting in concert with others; • a mandatory offer ( Pflichtangebot ), which must be made if and when 30% of voting rights have been obtained by means other than a takeover offer; and • an acquisition offer ( sonstiges Erwerbsange- bot ) not aimed at acquiring control, by buying less than 30% of the target’s voting rights (together with any other target shares attrib - uted to the bidder), buying additional shares if control has already been obtained, or buying non-voting preference shares only. 2.3 Restrictions on Foreign Investments The Foreign Trade Act ( Aussenwirtschaftsge- setz ) and the Foreign Trade Ordinance ( Aussen- wirtschaftsverordnung ) provide for the review of foreign direct investments into German compa - nies (be it by way of share or asset deal). First, any non-German investments in domestic companies active in the military and defence sec - tor may be prohibited (sector-specific review). Second, under the so-called cross-sectoral review, the Federal Ministry for Economic Affairs and Climate Action ( Bundesministeri- um für Wirtschaft und Klimaschutz , or BMWK) may review any direct or indirect acquisitions by a non-EU/EFTA investor. Particular notifica -
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