Rapport sur les déclarations de franchissement de seuil de ... - AFG

Rapport du groupe de travail de l’AMF sur les déclarations de franchissement
de seuil de participation et les déclarations d’intention (Octobre 2008)
subsidiary coordinates its conduct in respect of the issuer with such third party on the basis of an agreement or in
another manner; agreements on the exercise of voting rights in individual cases shall be excluded. Subsection (1)
shall apply mutatis mutandis to the calculation of the percentage of voting rights held by the third party.
(3) Subsidiaries are companies which are deemed subsidiaries within the meaning of section 290 of the
Commercial Code or upon which a controlling influence can be exerted, irrespective of their legal form and
domicile.
(3a) For the purpose of attribution of voting rights pursuant to this provision, an investment services enterprise
shall not be deemed a subsidiary within the meaning of subsection (3) in respect of the holdings which are
managed by such enterprise as part of an investment service pursuant to section 2 (3) no. 6, provided that the
investment services enterprise
1. may only exercise the voting rights attached to the shares concerned on the basis of instructions given in
writing or by electronic means, or if it ensures by putting into place appropriate mechanisms that portfolio
management services are conducted independently of any other services and under conditions equivalent
to those provided for under Council Directive 85/611/EEC of 20 December 1985 on the coordination of
laws, regulations and administrative provisions relating to undertakings for collective investment in
transferable securities (OJ EC No. L 375 p. 3); and
2. exercises its voting rights independently from the notifying party.
However, in respect of the attribution of voting rights, an investment services enterprise shall be deemed a
subsidiary within the meaning of subsection (3) if the notifying party or another subsidiary of the notifying party
owns shares in holdings managed by the investment services enterprise, and the investment services enterprise
may not exercise the voting rights attached to such holdings at its own discretion but only under direct or indirect
instructions from the notifying party or another subsidiary of the notifying party.
(4) If in the case of subsection (1) sentence 1 no. 6 a proxy is granted for the exercise of the voting rights at one
shareholders' meeting only, the notification requirement pursuant to section 21 (1) and (1a) in conjunction with
subsection (1) sentence 1 no. 6 shall be deemed fulfilled if the notification is submitted upon conferral of the
proxy. The notification must include information as to the date of the shareholders' meeting and the amount of the
percentage of voting rights to be attributed to the person executing the proxy once the proxy or the voting rights
discretion has expired.
(5) The Federal Ministry of Finance may, by means of an Ordinance not requiring the consent of the Bundesrat,
issue more detailed provisions concerning the circumstances under which, in the case of subsection (3a), the
investment services enterprise is deemed to be independent from the notifying party, and concerning electronic
means which may be used for giving instructions within the meaning of subsection (3a).
Section 23
Non-consideration of voting rights
(1) Voting rights attached to shares in an issuer whose home country is the Federal Republic of Germany shall
remain unconsidered when calculating the percentage of voting rights if their holder
1. provides investment services as an undertaking domiciled in a member state of the European Union or
another signatory to the Agreement on the European Economic Area;
2. holds or intends to hold the shares in question in its trading portfolio and if this holding does not exceed
5 percent of the voting rights; and
3. ensures that the voting rights attached to such shares are not exercised or otherwise used to exert
influence over the management of the issuer.
(2) Voting rights attached to shares in an issuer whose home country is the Federal Republic of Germany shall
remain unconsidered when calculating the percentage of voting rights if
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