Intermediary

1. Scope

Intermediaries are in particular

• Investment firms within the meaning of Art. 4 (1) (1) of Directive 2014/65/EU;
• Credit institutions within the meaning of Art. 4(1)(1) of Regulation (EU) No. 575/2013; and
• Central securities depositories (CSDs) within the meaning of Article 2(1)(1) of Regulation (EU) No 909/2014;

which provide services of safekeeping of shares, administration of shares or maintenance of securities accounts on behalf of shareholders or other persons.

Not considered as intermediaries within the meaning of the new provisions are asset management companies under the Asset Management Act (VVG).

Articles 367b to 367f PGR apply to intermediaries which provide services to shareholders or other intermediaries with respect to shares of companies which have their registered office in an EEA Member State and the shares of which are admitted to trading on a regulated market situated or operating within an EEA Member State.
 

2. Duties of intermediaries

Transmission of information on the identity of shareholders

Intermediaries are required to provide a company, upon its request, with at least the following information regarding shareholder identity:

• name and contact details (including full address and,  where available, email address); where the shareholder is a legalperson, the registration number or, if no registration number is available, its unique identifier;
• the number of shares held; and
• insofar they are requested by the requesting company, the categories or classes of shares held or the date from which the shares have been held.

In a chain of intermediaries, a transmission obligation applies, i.e. the information must be transmitted between themselves to the intermediary that has the necessary information. Each intermediary in the chain shall provide the information, that the intermediary holds, to the company.

Transmission of information from the company to the shareholders

Intermediaries must provide certain information to the shareholders, to enable the shareholders to exercise rights or must inform them that such information is available on the company's website. This obligation does not apply where the company has already provided the information or notification directly to all its shareholders.

In a chain of intermediaries, a transmission obligation applies, i.e. the information must be forwarded from one intermediary to the next, unless the intermediary has already transmitted the information directly to the company or to its shareholders.

Transmission of information from shareholders to the company

Intermediaries shall transmit to companies all information received from the shareholders in connection with the exercise of their shareholder rights in accordance with the instructions received from the shareholders.

In a chain of intermediaries, intermediaries shall transmit the information received from the shareholders to the next intermediary in the chain, unless the intermediary has already transmitted the information directly to the company or to the shareholders.

Facilitation of exercise of shareholder rights

Intermediaries must make arrangements for the shareholders to be able to exercise their rights (e.g., to participate and vote in the general meeting) themselves. In addition, shareholder rights must be exercised upon the explicit authorisation and instruction of the shareholders and for the shareholders' benefit.

Where intermediaries receive confirmation of the receipt of an electronic vote or that the votes have been validly recorded and counted in the general meeting, this must be forwarded to the shareholders or to the next intermediary in the chain.

Non-discrimination, proportionality and transparency of costs

Any charges for any service provided by intermediaries in accordance with their duties must be disclosed. The charges must be non-discriminatory and proportionate.

Compliance with data protection regulations

When processing personal data of shareholders, the provisions of data protection law must be complied with.

3. Supervision of compliance with the obligations of intermediaries

The auditor or audit office of the intermediary shall verify, as part of the annual statutory audit or review requirement, whether the obligations have been complied with by the intermediary and shall confirm this by means of an audit report. If the auditor or the audit office identifies deficiencies in the course of the audit, a corresponding report shall be submitted to the Office of Justice.

Compliance with the obligations must be declared by the company to the auditor or the audit office using the form provided by the Office of Justice. The form can be downloaded from the following link:

Intermediär - Sachverhaltsinformationen und Erklärung an Wirtschaftsprüfer