On 18 August 2026, Bafin published a new circular on takeover law, which is intended to provide greater transparency regarding its administrative practice in the context of corporate takeovers.
Market participants covered by the circular
The circular is addressed to market participants intending to conduct proceedings under the German Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz – “WpÜG“) in conjunction with the German WpÜG Offer Ordinance (WpÜG-Angebotsverordnung – “WpÜG-AngebotsVO“) and, where applicable, the German Stock Exchange Act (Börsengesetz – “BörsG“).
The circular is intended to address recurring questions arising in takeover proceedings and to facilitate more efficient communication between Bafin and market participants.
Key content of the circular
The circular primarily addresses the following topics:
- Offer procedure: Guidance and explanations on, among other things, the binding effect of the announced type of offer, the treatment of share buybacks, delisting offers and European offers, as well as the permissibility of bidding consortia and offer conditions.
- Offer consideration and minimum price: Detailed guidance on offer consideration, including the liquidity forecast for exchange offers, the relevant reference dates and average share prices, as well as alternative forms of consideration. The circular also provides further clarification regarding subscription rights, so-called status reports (Wasserstandsmeldungen), and publication requirements for parallel and subsequent acquisitions.
- Decisions pursuant to Sections 36 and 37 WpÜG: Clarification regarding the non-attribution of voting rights and exemptions from the obligation to make an offer, including decisions prior to the acquisition of control, the publication of such decisions and intra-group restructurings.
- Acquisition of control and exemption: Guidance on Bafin’s administrative practice regarding the acquisition of control and the exemption under Section 35 (3) WpÜG (acquisition of control as a result of a takeover offer).
- Publication requirements for the target company: Clarification regarding the content, timing and reasoning of the statements to be issued by the management board and supervisory board pursuant to Section 27 WpÜG.
Effective date and relationship with other publications
The new circular on takeover law took effect on 18 August 2026. It consolidates Bafin’s existing administrative practice on selected issues of takeover law and replaces or incorporates several previous publications.
Specifically, the circular replaces the previously published “Guidance Notice – Bafin’s Interpretation of Section 35(3) WpÜG” and the interpretative decision on the “Repurchase of Own Shares under the WpÜG”. It also incorporates the information on statements pursuant to Section 27 WpÜG contained in the July 2014 issue of the BafinJournal.
Conclusion
With the new circular, Bafin consolidates and further clarifies its administrative practice on numerous issues of practical relevance under German takeover law.
The circular provides greater clarity on Bafin’s administrative practice for the various parties involved in takeover proceedings: bidders receive guidance in particular on the structuring and implementation of offers and the determination of the offer consideration. For target companies, Bafin clarifies in particular the requirements applicable to statements by the management board and supervisory board. For shareholders and other market participants, the circular provides greater transparency and guidance regarding the conduct of takeover proceedings.
The circular is therefore likely to become an important source of guidance for the preparation and implementation of transactions falling within the scope of the WpÜG.
