Acquisition of a material participation

(1) CRR credit institutions must give advance notification of their intention to acquire, directly or indirectly, a material participation. The notification must state the scope of the intended acquisition and the information necessary for the assessment. Where the threshold under section 1(9b) is reached or exceeded exclusively on an individual basis, the notification is to be given to the supervisory authority and the Deutsche Bundesbank. Where the threshold under section 1(9b) is simultaneously reached or exceeded on the basis of the consolidated position of the parent institution in the European Union, the notification is also to be given to the consolidating supervisor. Where the consolidating supervisor is the supervisory authority, the notification is also to be given to the Deutsche Bundesbank. The supervisory authority publishes on its website a list of the information required under the second sentence, and may, in agreement with the Bundesbank, specify there in more detail the manner of submission, and the type, form, and scope of the particulars and of the transmission.
(2) The notification duty under subsection (1) applies correspondingly to financial holding companies and mixed financial holding companies that must carry out the consolidation under section 10a(2), second sentence, where the threshold is reached or exceeded on the basis of the consolidated position.
(3) The supervisory authority confirms receipt of the notifications named in subsections (1) and (2), or of the supplementary information submitted under subsection (8), in writing or electronically, without delay, but in any case within ten working days of receipt.
(4) From the day of the written or electronic confirmation of receipt of the notification and of all information necessary for the assessment, the supervisory authority has 60 working days (assessment period) in which to carry out an assessment.
(5) The provisions of section 2c remain unaffected. Section 2c(4), second sentence, applies correspondingly.
(6) Where the intended acquisition of a material participation takes place between undertakings of the same group falling under Article 113(6) of Regulation (EU) No 575/2013, or between undertakings belonging to the same institutional protection scheme falling under Article 113(7) of Regulation (EU) No 575/2013, the supervisory authority is not obliged to carry out an assessment under subsection (4). Where the supervisory authority dispenses with an assessment, it informs the party subject to the notification duty of this decision.
(7) The supervisory authority informs the interested acquirer, at the time of the confirmation of receipt under subsection (3), of the date on which the assessment period expires.
(8) Up to no later than the 50th working day within the assessment period, the supervisory authority may, in text form, request further information necessary to complete the assessment under subsection (4).
(9) The assessment period is suspended from the time the further information is requested until it is received by the supervisory authority. The suspension under the first sentence is at most 20 working days. The supervisory authority may request further additions or clarifications to the information submitted, but this does not lead to a further suspension of the assessment period.
(10) By way of derogation from subsection (9), second sentence, the suspension is at most 30 working days where 1. the undertaking to be acquired is resident or regulated in a third country, or 2. carrying out the assessment requires an exchange of information with the authorities responsible under Directive (EU) 2015/849, as amended on 31 May 2024, for the supervision of the interested acquirer.
(11) Where the examination of an application by a financial holding company or a mixed financial holding company for approval under Article 21a of Directive 2013/36/EU, as amended on 27 November 2024, takes place at the same time as the assessment under subsection (4), the assessment period is suspended until the other procedure is concluded.
(12) The supervisory authority may, in the cases under subsection (1), first sentence, and subsection (1), fifth sentence, in conjunction with the fourth sentence, and subsection (2), second sentence, prohibit the intended acquisition of a material participation within the assessment period, where 1. facts justify the assumption that the interested acquirer will not be able, or will not remain able, to comply with the supervisory requirements under this Act, Regulation (EU) No 575/2013, or, where applicable, other legal acts of the European Union, 2. there is a justified suspicion that money laundering or the financing of terrorism, within the meaning of Article 1 of Directive (EU) 2015/849, as amended on 31 May 2024, is taking place, has taken place, or has been attempted, in connection with the intended acquisition, or that the intended acquisition could increase the risk of such conduct, or 3. the information submitted by the interested acquirer is incomplete despite a request under subsection (8). The supervisory authority must request confirmation from the authorities responsible under Directive (EU) 2015/849, as amended on 31 May 2024, for the supervision of the interested acquirer, that there are no indications that could give rise to a sufficient suspicion within the meaning of the first sentence, point 2. The supervisory authority must give due regard to a contrary opinion received within 30 working days of the request. The supervisory authority may neither impose preconditions on the amount of the intended acquisition, nor may it, in its examination, have regard to the economic needs of the market.
(13) Where the supervisory authority decides to prohibit the intended acquisition, it informs the interested acquirer of this in text form, stating the reasons, within two working days of completing the assessment under subsection (4) and before the end of the assessment period.
(14) Where the supervisory authority does not, in writing or electronically, prohibit the intended acquisition within the assessment period, the acquisition is deemed approved. Completion of the acquisition of the material participation is prohibited until the expiry of the assessment period or an earlier written or electronic confirmation by the supervisory authority; the powers of the supervisory authority under subsection (22) remain unaffected.
(15) The supervisory authority may set a period for completion of the intended acquisition, and may extend that period.
(16) In the assessment under subsection (4), the supervisory authority consults the relevant authorities entrusted with the supervision of other undertakings of the financial sector, where the intended acquisition relates to one of the following undertakings: 1. a credit institution, an insurance or reinsurance undertaking, an investment firm, or an asset management company, that is authorised in a Member State or economic sector other than that of the interested acquirer, 2. a parent undertaking of a credit institution, an insurance or reinsurance undertaking, an investment firm, or an asset management company, that is authorised in a Member State or economic sector other than that of the interested acquirer, or 3. a legal person that controls a credit institution, an insurance or reinsurance undertaking, an investment firm, or an asset management company, that is authorised in a Member State or economic sector other than that in which the acquisition is intended.
(17) In the case of an intended acquisition under subsection (1), third sentence, the supervisory authority notifies the intended acquisition to the consolidating supervisor within ten working days of receiving the interested acquirer's notification, where the interested acquirer is part of a group and the supervisory authority is not the consolidating supervisor. It forwards its assessment to the consolidating supervisor.
(18) Where the interested acquirer is a financial holding company or a mixed financial holding company under subsection (2), the supervisory authority, as consolidating supervisor, notifies the intended acquisition to the competent authority of the Member State in which the interested acquirer is established, within ten working days of receiving the interested acquirer's notification, where that is a different authority. The supervisory authority forwards its assessment to that other authority.
(19) Where the threshold under section 1(9b) is exceeded by an acquisition under subsection (1) by a CRR credit institution both on an individual basis and on the basis of the group's consolidated position, and the supervisory authority is the recipient of the notification either under subsection (1), third sentence, or under subsection (1), fourth sentence, it endeavours to coordinate its assessment with the other authority, in particular with regard to the consultations under subsection (16).
(20) Where the assessment of the material participation of a CRR credit institution under subsection (1) must be carried out by both the consolidating supervisor and the competent authority of the Member State in which the CRR credit institution is authorised, and the supervisory authority is one of these authorities, it cooperates with the other authority in full coordination. The supervisory authority makes the information necessary or relevant for the assessment available to the other authority without delay, either of its own motion or on request. Where the supervisory authority is the consolidating supervisor, it draws up an assessment of the intended acquisition and forwards it to the competent authority of the Member State in which the interested acquirer is established. The supervisory authority makes every effort to reach a joint decision with the other authority within two months of receiving that assessment. The joint decision must be properly documented and reasoned.
(21) In the case under subsection (20), the supervisory authority, where it is the consolidating supervisor, communicates this joint decision to the interested acquirer, stating all the views and reservations of the other authority. Where a joint decision is not reached within two months of the assessment being received by the competent authority of the Member State in which the interested acquirer is established, the supervisory authority refrains from taking a decision and refers the matter to the European Banking Authority under Article 19 of Regulation (EU) No 1093/2010. The supervisory authority then takes a joint decision with the other authority in accordance with the decision taken by the European Banking Authority under Article 27c(3), second subparagraph, of Directive 2013/36/EU, as amended on 27 November 2024.
(22) The supervisory authority may prohibit undertakings that have completed an acquisition of a material participation planned under subsection (1) or (2) despite a prohibition under subsection (12), or that have not given advance notification without delay and have not made good this omission within the period set, from exercising the voting rights, and may order that the interests may be disposed of only with its consent. In the case of a prohibition on exercising the voting rights under the first sentence, the court at the seat of the undertaking, on the application of the supervisory authority, the undertaking, or a person holding an interest in it, appoints a trustee to whom it transfers the exercise of the voting rights. In exercising the voting rights, the trustee must have regard to the interests of the sound and prudent management of the undertaking. Beyond the measures under the first sentence, the supervisory authority may instruct the trustee to sell the interests, insofar as they establish a material participation, where the undertaking under the first sentence does not, within a reasonable period set by the supervisory authority, demonstrate to it a reliable acquirer; the undertaking must cooperate in the disposal to the extent necessary.
(23) Where the conditions under subsection (22) have ceased to apply, the supervisory authority must apply for the revocation of the trustee's appointment. The trustee is entitled to reimbursement of reasonable expenses and to remuneration for its activity. The court determines the expenses and the remuneration on the trustee's application; a further appeal on a point of law against the determination of remuneration is excluded. The undertaking under the first sentence is liable for the costs arising from the appointment of the trustee, the expenses to be granted to the trustee, and the remuneration. The supervisory authority advances the expenses and the remuneration. In the case of negligent conduct, the trustee's liability to pay compensation is limited to EUR 1 million. Where a stock corporation is concerned whose shares are admitted to trading on the regulated market, the liability to pay compensation is limited to EUR 50 million.