Current Developments

Acting in concert: BGH substantiates individual case exception

BGH, Urt. v. 25.09.2018, II ZR 190/17

Coordinated actions of shareholders of listed stock corporations (often on the basis of voting or pooling agreements) are to be assumed to be "acting in concert". All shareholders involved are then mutually attributed all other voting rights of the other parties to the agreement from the shares held (cf. Section 34 (2) WpHG or Section 30 (2) WpÜG).

Besides acting in a coordinated way, the assumption of acting in concert also presupposes that it is not a matter of coordinated conduct in an individual case.

When such an individual case exists or how an individual case is to be determined is highly controversial:

In some cases, the focus is on whether it is an individual case in terms of quality (material), i.e. whether the orientation of the company is not influenced or changed in the long term.

Other parts assess the question of the individual case purely quantitatively (formally), so that an individual case would exist if the concerted behaviour can be implemented by a one-off action that does not require repetition, even if this involves a lasting change or influence on the company.

In its decision, the BGH has now opted for a formal, quantitative approach, thus ensuring significantly more legal certainty in this matter.