Attribution of voting rights; authorisation to issue statutory instruments

(1) Voting rights from shares of the target company are equivalent to voting rights of the offeror,
1. that belong to a subsidiary of the offeror,
2. that belong to a third party and are held by that party for the account of the offeror,
3. that the offeror has transferred to a third party as security, unless the third party is entitled to exercise the voting rights from those shares and declares the intention to exercise the voting rights independently of the offeror's instructions,
4. over which a usufruct has been created in favour of the offeror,
5. that the offeror can acquire by a declaration of intent,
6. that are entrusted to the offeror, or from which the offeror can exercise the voting rights as proxy, insofar as the offeror can exercise the voting rights from those shares at its own discretion in the absence of specific instructions from the shareholder,
7. from which the offeror can exercise the voting rights on the basis of an agreement providing for a temporary transfer of the voting rights, without the associated shares, in return for consideration,
8. that are held in safe custody with the offeror as security, insofar as the offeror holds the voting rights and declares the intention to exercise them. For the attribution under the first sentence, nos. 2 to 8, subsidiaries of the offeror are equivalent to the offeror. Voting rights of the subsidiary are attributed to the offeror in full.
(2) Voting rights of a third party from shares of the target company are also attributed to the offeror in full where the offeror or its subsidiary coordinates its conduct with regard to the target company with that third party on the basis of an agreement or otherwise; agreements in individual cases are excepted. Coordinated conduct requires that the offeror or its subsidiary and the third party reach an understanding on the exercise of voting rights, or otherwise cooperate with the aim of a lasting and material change in the entrepreneurial orientation of the target company. Subsection (1) applies accordingly to calculating the third party's share of voting rights.
(3) For the attribution under this provision, an investment services enterprise is not deemed a subsidiary within the meaning of section 2(6), with regard to holdings managed by it within the framework of an investment service under section 2(8), first sentence, no. 7 of the Securities Trading Act, under the following conditions:
1. the investment services enterprise exercises the voting rights attached to the shares concerned independently of the offeror,
2. the investment services enterprise
a) may exercise the voting rights only on the basis of instructions given in writing or by electronic means, or
b) ensures, through suitable precautions, that the financial portfolio management is conducted independently of other services and under conditions equivalent to those of Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32), in its current version,
3. the offeror communicates to BaFin the name of the investment services enterprise and the authority competent for its supervision, or the absence of such an authority, and
4. the offeror declares to BaFin that the conditions of no. 1 are satisfied.
(4) For the attribution under this provision, capital management companies within the meaning of section 17(1) of the Capital Investment Code and EU management companies within the meaning of section 1(17) of the Capital Investment Code are not deemed subsidiaries within the meaning of section 2(6), with regard to holdings belonging to the collective investment undertakings managed by them, under the following conditions:
1. the management company exercises its voting rights independently of the offeror,
2. the holdings within the meaning of sections 29 and 30 belonging to the managed collective investment undertaking are managed in accordance with Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32), as last amended by Directive 2014/91/EU (OJ L 257, 28.8.2014, p. 186),
3. the parent undertaking communicates to BaFin the name of the management company and the authority competent for its supervision, or the absence of such an authority, and
4. the parent undertaking declares to BaFin that the conditions of no. 1 are satisfied.
(5) An undertaking with its seat in a third country that would require authorisation for financial portfolio management under section 32(1), first sentence in conjunction with section 1(1a), second sentence, no. 3 of the Banking Act, or a licence under section 20 or section 113 of the Capital Investment Code, if it had its seat or head office domestically, is not deemed a subsidiary within the meaning of this Division where
1. the undertaking satisfies requirements as to its independence equivalent to those under subsection (3) or subsection (4), also in conjunction with a statutory instrument under subsection (7),
2. the offeror communicates to BaFin the name of the undertaking and the authority competent for its supervision, or the absence of such an authority, and
3. the offeror declares to BaFin that the conditions of no. 1 are satisfied.
(6) By way of derogation from subsections (3) to (5), investment services enterprises and management companies are nevertheless deemed subsidiaries within the meaning of section 2(6) where
1. the offeror or another subsidiary of the offeror itself holds interests in the holding managed by the undertaking, and
2. the undertaking cannot exercise the voting rights attached to those holdings at its own discretion, but only on the basis of direct or indirect instructions given to it by the offeror or by another subsidiary of the offeror.
(7) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, issue detailed provisions on the circumstances under which, in the cases of subsections (3) to (6), the undertaking's independence from the offeror exists.