The Implementation of the Takeovers Directive in Germany

An important law was enacted in Germany in 2006 implementing the requirement of the Takeovers Directive in Germany. This should have been implemented by 20 May 2006, in accordance with Article 21 of the Directive, but full implementation in Germany did not take place until 1 January 2007. The new German provisions do not include the compulsory adoption of the breakthrough rule contained in Article 11 of the Takeovers Directive; the existing provisions of paragraph 33 of the German Takeovers Act of 2001 do not seem entirely in conformity with those contained in Article 9 of the Directive. Companies may adopt the new provisions of paragraph 33a (Europäisches Verhinderungs–verbot) and/or those of paragraph 33b (Europäische–Durchbrechungsregel) in their statutes, but are not bound to do so. Paragraph 33c, which like the aforementioned paragraph has been incorporated in the Takeovers Act of 2001 by the amending statute of 2006, makes provision for the application of the reciprocity rule contained in Article 12(3) of the Takeovers Directive.