Unresolved Legal Issues in Company Valuation: A Sore Point in the UniCredit/Commerzbank and Schaeffler/Vitesco Cases

1. 1. Synergy Effects and Stock Market Value in Business Combinations

The cases UniCredit/Commerzbank and Schaeffler/Vitesco revive the long-standing yet still highly contentious legal questions as to how synergy effects and stock market prices are to be treated in company valuation. Ballwieser[1] put it succinctly in 1997: “That synergy effects must be taken into account in mergers and acquisitions seems entirely beyond dispute. After all, you pay for what you can extract. It is as simple as that.” Is it really that simple? For decades[2], debate has centred on (i) whether synergies arising from business combinations constitute measurable value or merely the mirages of target-oriented management presentations (quid volumus credimur[3]), (ii) whether, when and how they are to be incorporated into valuation, and (iii) to whom they may accrue. Admittedly, in recent years, across various valuation contexts, case law and academic writing have shown a tendency to assess the companies involved on a stand-alone basis (“stand alone”), that is, in principle without synergies, and to attach greater binding force to stock market prices. The questionability of this tendency is illustrated by the current cases of UniCredit/Commerzbank and Continental/Vitesco.It should be emphasised that the author is not involved in these transactions or companies. Nor is the present contribution intended as a statement on these processes. Rather, drawing on publicly available information, it highlights, in a heuristic manner, aspects which demonstrate that limits must indeed be placed on the tendency described.[4] This is reinforced by the very recent revision of Institut der Wirtschaftsprüfer (IDW) Standard S1 on company valuation of 2026[5]: not only does it abandon the distinction between “genuine” and “non-genuine” synergies—although this distinction had become established in case law in the wake of earlier versions of S1—but it also aims to give greater weight to synergies. In doing so, it addresses long-standing criticisms raised by the author of earlier versions of S1 concerning the treatment of synergies. [6]

All of this is not only relevant to valuation practice. It also affects the duties of the corporate bodies of a target company.

The present blog addresses UniCredit/Commerzbank (Vitesco/Schaeffler will be dealt with in a subsequent blog). The main conclusions regarding UniCredit/Commerzbank may be summarised as follows:

• The offer document of UniCredit and the characteristics of the sector suggest that the synergy effects expected by UniCredit should be taken into account in the valuation both in relation to step 1 of group formation envisaged in the document (stand-alone) and those arising from step 2 (“combination”, i.e. UniCredit becoming a consolidating shareholder).
• Contrary to the prevailing view, a takeover offer which, by its own account, lies so far below the company’s “intrinsic value” as in the case of UniCredit/Commerzbank cannot be regarded as “adequate” within the meaning of section 31(1) WpÜG. In such cases, minority shareholders acquire civil law claims for additional compensation against the bidder.
• Even if one does not follow that view, the valuation issues affect the duties of the corporate bodies of the target company: according to existing case law of the lower courts, there is a risk that the synergies expected by the bidder will, in subsequent steps of group formation, be treated as so-called “genuine” synergies benefiting the bidder alone. The corporate bodies may therefore be under a duty to counteract this and, pursuant to sections 311, 76 and 116 AktG, to ensure that benefits are fairly allocated[7] and that the synergy measures are incorporated into planning, so that they are reflected in the company’s value as so-called “non-genuine” synergies in subsequent group-formation steps.

In detail:

II. The Trend Towards Stock Market Prices and Against the Consideration of Synergies

1. Stock Market Price versus Earnings Value

a) Starting Point

The traditionally prevailing valuation methods are the earnings value method and discounted cash flow (DCF) approaches, which are based on projected future earnings or cash flow surpluses and which, for a long time, were regarded in practice as more reliable than volatile stock market prices. [8] By contrast, it has been argued that valuation by the market has greater explanatory power than predictive, model-based earnings/DCF values, especially since a shareholder may sell shares at the stock market price, such that the share price must represent the lower bound of value. In view of the shareholder’s freedom of disposition and Article 14 of the German Basic Law (Grundgesetz, “GG”)), the Federal Constitutional Court (BVerfG) in 1999 established the stock market price as the lower bound for compensation under section 305 of the German Stock Corporation Act (Aktiengesetz, “AktG”).[9] However, Article 14 GG does not prescribe a specific valuation method. [10] This affords the specialist courts considerable discretion, which they have used to give increasing weight to stock market prices, provided that such prices are not distorted and are suitable as an indicator of the market price.[11] Just as, according to the BVerfG, constitutional law does not prescribe any particular method of estimation and it is not required, in determining the “true” value of a shareholding, always to apply every conceivable method of company valuation and to calculate compensation according to the most favourable valuation principle, so the use of the stock market value of a company constitutes “in principle also an appropriate basis under ordinary law” for estimating the value of the company. [12]

b) Relative Valuation

The above considerations apply to the subsidiary. Where the parent company is (wholly or partly) listed, the BVerfG has held that—irrespective of the valuation method applied to the subsidiary—its stock market value does not constitute a constitutional upper limit in the context of relative valuation. Article 14 GG does not entitle shareholders of the subsidiary to receive shares in the parent company at the stock market price. The courts are therefore constitutionally free to attribute a higher value to the controlling or parent company than its market value, for example in periods of adverse capital market conditions. [13] It remains controversial to this day whether parent and subsidiary are to be valued using the same method (principle of methodological equivalence) and whether the case law of the Federal Court of Justice (BGH) is to be understood in this sense, or whether the highest value in each case is to be used (principle of most favourable valuation).[14]

c) Scope of Application

These principles[15] apply in the context of section 305 AktG (compensation), section 304 AktG (guaranteed dividend), integration[16] (section 320b AktG), sections 327a et seq. AktG (squeeze-out under company law) [17], and section 62(5) UmwG[18] (squeeze-out in the context of mergers), and, according to the BVerfG, also to mergers[19]. In the context of takeover offers, the bidder must, pursuant to sections 31 and 35 of the Act on the Acquisition of Shares and Take-Overs (Wertpapiererwerbs- und Übernahmegesetz, “WpÜG”), offer “adequate consideration”, whereby “as a rule the average stock market price of the shares of the target company and acquisitions of shares of the target company by the bidder … must be taken into account”. Sections 3–5 of the WpÜG Offer Ordinance establish a “minimum price” on that basis which must not be undercut, without, however, specifying that this price constitutes the “adequate price” within the meaning of the higher-ranking section 31(1) WpÜG. Nevertheless, it is the prevailing view that the “minimum price” departs from the “adequate price” within the meaning of section 31(1) WpÜG only in the exceptional cases provided for in section 5(4) of the WpÜG Offer Ordinance.[20]

2. Synergies

a) Stand-alone valuation

Synergies arise from the combination of the companies involved and are its driving force (1 + 1 > 2). According to the Federal Court of Justice (BGH), companies are to be assessed on the basis of their own value, that is, without the value advantages arising from their combination with another company in the course of the transaction in question (stand-alone valuation without synergies).[21] In rejecting the consideration of synergies, the BGH argues that they do not form part of the company as such, that shareholders do not participate in negative synergy effects either, and that their inclusion would be inconsistent with the benchmark of stock market prices, which are based on prices prior to the public announcement of the relevant transaction. [22] The case law of the lower courts has likewise been opposed to their inclusion, and academic writing largely follows this approach. [23]

b) “Genuine” versus “non-genuine” synergies

Following the 2008 version of IDW Standard S1[24], case law and academic writing have distinguished between “genuine” and “non-genuine” synergies. “Genuine” synergies are those that arise only in combination with the specific counterparty to the transaction, whereas “non-genuine” synergies—despite difficulties of delineation—are those which the company being valued can achieve independently of the valuation context or with other counterparties. [25] The latter are therefore to be taken into account where the intrinsic value of the company is at issue.

c) New approach of the IDW

In the new IDW Standard S1 of 2026[26], the IDW has abandoned the distinction between “genuine” and “non-genuine” synergies, although lawyers had followed it for many years in the wake of earlier versions of the standard. According to paras. 81 et seq. and 98 et seq. of the new version, the decisive factor is only whether, at the valuation date, “an economic combination has already been realised” or whether “there is a concrete possibility and expectation of entering into, intensifying or extending such an economic combination”. This is to be determined, according to paras. 82 and 99, in light of the relevant circumstances and plausibility. This shift is regarded as one of the key innovations of IDW S1. [27]

Where synergy effects are added to value, the question arises how they are to be allocated among the companies involved. [28] This issue will be addressed in the next blog on Schaeffler/Vitesco.

III. UniCredit / Commerzbank Takeover Offer as an Example

Against this background, the valuation context of UniCredit / Commerzbank (as explained: considered in isolation and heuristically under the aspects of “stock market price versus intrinsic value” and “synergy effects”) is to be examined:

1. Adequacy

In UniCredit’s takeover offer for Commerzbank dated 5 May 2026[29], the two issues intertwine: UniCredit offers the minimum price pursuant to section 3 of the WpÜG Offer Ordinance of EUR 34.35, i.e. the average share price of Commerzbank over the three months preceding the initial publication of the intention to make the takeover on 16 March 2026 (offer, p. 48). This stock market price is a stand-alone market price and, based on the currently issued 1,127,496,195 Commerzbank shares (excluding treasury shares), corresponds to an aggregate value of approximately EUR 38.7 billion. At the same time, the offer (subject to the usual qualifications) forecasts that Commerzbank’s annual results could be increased through appropriate measures already on a stand-alone basis by EUR 0.8 billion per year (after deduction of one-off costs totalling EUR 1.7 billion).[30] In combination with UniCredit (“Combination”), Commerzbank could, by contrast, generate further synergy effects of EUR 1.1 billion per year (after deduction of additional one-off costs totalling EUR 1.6 billion).

These figures are substantial, as the following very rough and preliminary calculations illustrate: If one takes the pre-tax group result[31] of Commerzbank for 2024 of EUR 3.8 billion as a perpetuity at an interest rate of 10%, the capitalised earnings value amounts to approximately EUR 38.0 billion. The additional earnings of EUR 0.8 billion p.a. projected by UniCredit for the stand-alone case (after one-off costs of EUR 1.7 billion distributed over years 1 and 2) would, on the same basis of calculation, have a present value of approximately EUR 6.5 billion and thus represent more than 17% of the total value. The additional earnings of EUR 1.9 billion p.a. (i.e. 0.8 + 1.1) projected for the combination (after one-off costs totalling EUR 3.3 billion) would correspond to a present value of approximately EUR 16.1 billion and thus to 42.5% of the total value. [32]

It follows from the offer document that the offered price is significantly below the value which, from the bidder’s perspective, could be achieved even on a stand-alone basis. The market was not aware of this valuation within the relevant period under section 31 WpÜG and sections 3 et seq. of the WpÜG Offer Ordinance, and market participants do not possess UniCredit’s level of expertise regarding potential value increases at Commerzbank. According to the offer document, the offered price therefore lies below the “true value” of Commerzbank. Can it nevertheless be regarded as “adequate” within the meaning of section 31(1) WpÜG? As explained, the prevailing view holds that the minimum price under sections 3 et seq. of the WpÜG Offer Ordinance is always “adequate”. However, the following need to be borne in mind: (1) Pursuant to the wording of section 31(1) sentence 2 WpÜG, stock market prices and prior acquisition prices are merely to be “taken into account”. (2) The German legislature deliberately did not adopt the clear wording of Article 5(4) of the EU Takeover Directive[33], but instead made use of the possibility—expressly granted by Article 3(2) of the Directive—of imposing stricter requirements for offers. “Stricter” in the sense of the Directive means enhanced protection of minority shareholders. [34] (3) The legislature not only refrained from taking over Article 5(4) of the Directive, but instead incorporated into section 31 WpÜG the specifically German language used by the Federal Constitutional Court and the Federal Court of Justice[35], according to which the stock market price is merely to be “taken into account” when valuing a company. This wording allows for the application of very different valuation methods (cf. above II.1(a)). (4) This is consistent with the legislative materials, according to which section 31(1) WpÜG deliberately “refrains from laying down detailed statutory rules on the amount of consideration. Instead, it follows the model of the provisions on cash compensation in restructuring law (sections 29(1) sentence 1 and 207(1) sentence 1 UmwG), which likewise require “adequate” compensation without specifying in detail the criteria for determining adequacy. Given the close relationship between the two areas and the wide variety of possible factual situations, this approach is appropriate.” As regards mergers, it remains open whether and how synergy effects are to be taken into account in relative valuation. [36] Accordingly, stock market prices and prior acquisition prices are not binding, but serve, on the one hand, merely as criteria among others and, on the other hand, as instruments for determining the relevant “value” in the respective valuation context—here, not the “full value” (as in sections 304, 305 AktG), but the “adequate value”. (5) A different conclusion could at most be justified if the purpose of section 31 WpÜG were to protect shareholders of a stock corporation that comes under the control of a major shareholder against a potential “group formation discount”, by enabling them to exit at the stand-alone market value (entry protection). However, there is no indication of such a limited purpose. The German position in the debate on the relationship between Article 5(4) of the Takeover Directive and group law has been inconsistent[37]; no clear boundary for the protection of minority shareholders is defined, Member States are permitted to adopt stricter rules, and both the wording and the legislative materials of section 31(1) WpÜG support not to rely on stock market prices only.

2. Consequences for Unattractive Offers (Low Balling)

Offers in which bidders exploit depressed market prices (“low balling”) to propose unattractive consideration occur repeatedly and have been the subject of extensive debate regarding the adequate price. [38] In the case of UniCredit, however, it already follows from the offer document itself that acceptance of the offer would constitute an economic error. Those who sell would not participate in the forecast increases in earnings. This leads inevitably to the question whether the offered price can still be regarded as “adequate” within the meaning of section 31 WpÜG despite the considerable expected synergies. The answer depends, in light of the discussion on synergies, on two issues:

a) “Genuine” or “Non‑Genuine”?

According to the prevailing view outlined above, the first question is whether the synergies are “genuine” or “non-genuine”. The stand-alone benefits projected in the offer document are likely, without difficulty, to be classified as “non-genuine”. The revision of IDW Standard S1 indicates that the distinction between genuine and non-genuine synergies is likely to be irrelevant for the benefits arising from a combination, even if one were inclined to regard them as “genuine”. Furthermore, in homogeneous mass markets there may in principle be only “non-genuine” synergies. The less differentiated products and services are, and the more market success depends on cost leadership, the more synergies are to be classified as economies of scale that can, in principle, be realised not only with a specific partner but with virtually any market participant. In the credit business, the relevant “product” in lending is money itself—the most homogeneous of all mass products. Moreover, extensive regulatory requirements and the widespread use of similar IT systems have largely homogenised the banking sector even beyond lending operations, leading to increasingly standardised mass processing. Platform economics, automation and AI are likely to further erode differentiated performance profiles. If this assessment is correct, the earnings improvements projected for the combination could be achieved, to a large extent, with any other major bank and would therefore constitute “non-genuine” synergies, which must be taken into account even under the traditional view.

b) Which Stage of Group Formation?

In multi-stage group formations (e.g. takeover offer followed by a domination agreement), the courts assess the “genuineness” of synergies separately for each stage. According to the Düsseldorf Higher Regional Court, even “genuine” synergies arising at the first stage must be treated as “non-genuine” at the second stage if the synergy-generating measures had already been initiated or documented in the business plan at the valuation date of the second stage. [39] However, the Court classified approximately 90% of the synergies identified jointly by the companies in the merger agreement preceding the takeover offer as “genuine” at the second stage, since they were based on far-reaching restructuring measures and strategic coordination which would only be pursued at a deeper level of integration and could not be implemented with just any other company.

This reasoning is not convincing: it would imply that any synergy is “genuine”, since it is always a business decision of the parent company whether and how it undertakes the next step of group formation.

In the UniCredit/Commerzbank case, it is also relevant that the substantial projected earnings improvements do not depend on a second formal group formation step (domination agreement or squeeze-out), but are intended to be achieved partly in a stand-alone setting (shareholding > 30% without becoming a consolidating shareholder) and partly through combination. Furthermore, the management of UniCredit must be intent to achieve the projected synergies one way or the other since the management relied on these synergies to obtain the approval of UniCredit’s shareholders for the transaction and must hence consider itself accountable to them.

3. What Does This Mean for UniCredit/Commerzbank?

At first sight, both the offer document and the structural characteristics of the industry suggest that the synergies arising from both stages of group formation should be classified as “non‑genuine”. Following the revised IDW S1, their inclusion can no longer be rejected on the basis that they are “genuine”. They should therefore be taken into account in the valuation.

If one further adopts (contrary to the prevailing view) the position advanced here that an offer which, by its own admission, lies so far below the intrinsic value is not “adequate” within the meaning of section 31(1) WpÜG, minority shareholders are entitled to civil law claims for additional compensation against the bidder. [40]

Moreover, even if this view is not followed, the valuation issues affect the duties of the corporate bodies of the target company. As set out above, the courts assess separately for each step of corporate integration (in each case in accordance with the rules applicable to the respective step) whether and to what extent synergies are to be taken into account. According to the case law of the Higher Regional Court (OLG) Düsseldorf, there is a risk that the synergies achieved accrue solely to the bidder not only at the fist integration step, but at subsequent integration steps as well, because they qualify as “genuine” synergies, without allowing the other shareholders to participate in them. This is because, according to the prevailing view, the bidder is not required to pay for synergies in step 1 (the takeover bid), can then increase its shareholding and, at the next legally regulated integration step (domination agreement or squeeze-out), argue (after some time has elapsed and/or due to other adversities as may occur in the life of a bank) that the synergies anticipated in the offer document could not be incorporated into the target company’s coordinated planning due to the absence of a cooperation agreement with the target company. In that case, according to the OLG Düsseldorf, no synergies would have to be taken into account in the second integration step either. This operates to the detriment of the minority shareholders. Their interests may be better protected if, for example, the target company enters into a cooperation agreement. In such an agreement, the target company can and must, pursuant to §§ 311, 76 and 116 AktG, ensure that disadvantages are compensated, benefits are fairly allocated[41], and the relevant measures are incorporated into the company’s planning, so that they must be reflected in the company value in subsequent integration steps. A mere rejection of the offer will not, as such, generally suffice to satisfy this duty of the corporate bodies.

IV. Conclusion

Hence, the discussion returns to Ballwieser’s finding cited at the opening: “That synergy effects must be taken into account in mergers and acquisitions seems entirely beyond dispute. After all, you pay for what you can extract.” This appears to hold true even if it not as simple as that.

[1] Ballwieser, Diskussionsbeitrag, Moderne Unternehmensbewertung, in: Weltweite Rechnungslegung und Prüfung, Report on the 1997 IDW Conference, 1998, pp. 255, 265, following Moxter, Grundsätze ordnungsmäßiger Unternehmensbewertung, Düsseldorf 1983, § 12 („Verbundberücksichtigungsprinzip“).

[2] E.g. Reuter, Unternehmensbewertung bei Sacheinlagen: Der neue IdW-Standard S1 auf dem Prüfstand des Kapitalaufbringungsrechts, BB 2000, 2298 et seq.; overview in Winner, in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, § 16.

[3] Publius Ovidius Naso (Ovid), Epistulae ex Ponto (Letters from the Exile), book II, 3, verse 75.

[4] See already Reuter, Unternehmensbewertung bei Sacheinlagen: Der neue IdW-Standard S1 auf dem Prüfstand des Kapitalaufbringungsrechts, BB 2000, 2298 et seq.; Reuter, Börsenkurs und Unternehmenswertvergleich - Gleichbehandlung der Aktionäre, Synergie und die Lage bei Verschmelzungen nach BGH-DAT/Altana, DB 2001, 2483, 2489; Reuter/Lenz, Unternehmensbewertungen nach der Neufassung des IDW-Standards S 1 – Modifikation für aktienrechtliche Zwecke, DB 2006, 1689.

[5] IDW Standard S1 dated 24.02.2026, IDW Life 2026, 535 et seq.

[6] See note 4 and II 2 infra.

[7] On the allocation issues see forthcoming blog on Schaeffler/Vitesco.

[8] Precise overview with further references in Koch, AktG, 20th ed. 2026, § 305, para. 34 et seq.

[9] BVerfG, 27.04.1999 - 1 BvR 1613/94, BVerfGE 100, 289.

[10] BVerfG, 16.05.2012 - 1 BvR 96/09 u.a., AG 2012, 625, 626.

[11] Koch, AktG, 20th ed. 2026, § 305, para. 24 et seq.

[12] BGH, 31.01.2024 - II ZB 5/22, NZG 2024, 935, para. 29 et seq., std. Rspr.; ebenso z.B. OLG Frankfurt a. M., 09.02.2024 – 21 W 129/22, NZG 2024, 825.

[13] BVerfG, 27.04.1999 - 1 BvR 1613/94, DAT/Altana, BVerfGE 100, 289, 310; AG; 08.09.1999 – 1 BvR 301/89, AG 2000, 40, 41; 20.12.2010 – 1 BvR 2323/07, para. 12 AG 2011, 128; left open for mergers.

[14] Further references in Koch, AktG, 20th ed. 2026, § 305, para. 55 f.; for most favored treatment for constitutional law reasons Reuter, Börsenkurs und Unternehmenswertvergleich - Gleichbehandlung der Aktionäre, Synergie und die Lage bei Verschmelzungen nach BGH-DAT/Altana, DB 2001, 2483, 2489.

[15] Overview in Koch, AktG, 20th ed. 2026, § 305, paras. 57 f.; Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, §§ 16.13; both with further references

[16] BVerfG, 26.04.2011 – 1 BvR 2658/10, para. 21, AG 2011, 511

[17] BVerfG, 16.05.2012 – 1 BvR 96/09 u.a., AG 2012, 625.

[18] BVerfG, 16.05.2012 – 1 BvR 96/09 u.a., AG 2012, 625.

[19] BVerfG, 26.04.2011 – 1 BvR 2658/10, para. 22, AG 2011, 511; BVerfG, 24.05.2012 - 1 BvR 3221/10, NJW 2012, 3020, 3021, Daimler/Chrysler; controversial for merger of equals, see Koch, AktG, 20th ed. 2026, § 305, para. 58.

[20] Overview in Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, §§ 23.80 et seq., § 23.33.

[21] For §§ 304 f. AktG BGH, 4 March 1998 – II ZB 5/97, NJW 1998, 1866, on the grounds that (i) minority shareholders should be enabled to exit and therefore the threshold value applies at which they can leave the company without economic disadvantage, and (ii) it ultimately depends on the other contracting party whether synergy effects are reflected in the assets of the controlling or controlled company; further references in Koch, AktG, 20th ed. 2026, § 305, para. 57/58; Großfeld, Egger, Tönnes, Recht der Unternehmensbewertung, 9th ed. 2020, para. 298 et seq.; Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, §§ 16.3, 16.9, m N.

[22] Koch, § 305, para. 31; Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, §§ 16.10 f; both with further references

[23] OLG Düsseldorf, 05.06.2025 - 26 W 7/22, para. 64; OLG Düsseldorf, 24.09.2020 - I-26 W 5/16 (AktE), para. 60; OLG Frankfurt, 05.12.2013 - 21 W 36/12, para. 119 f.; OLG München, 26.06.2018, – 31 Wx 190/20, para. 48; OLG Stuttgart, 05.06.2013 - 20 W 6/10, para. 169; Großfeld, Egger, Tönnes, Recht der Unternehmensbewertung, 9. Auf. 2020, para. 296, 320; Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, §§ 16. 7 Further references in , Koch, AktG, 20th ed. 2026, § 305, para. 31; Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, §§ 16.10 f.; alle m. w. N.

[24] IDW Standard S1, Fassung vom 04.07.2008.

[25] BGH, 04.03.1998 - II ZB 5/97, para. 11 et seq.; OLG Düsseldorf, 05.06.2025 - 26 W 7/22, para. 64; OLG Düsseldorf, 24.09.2020 - I-26 W 5/16 (AktE), para. 60; OLG Frankfurt, 05.12.2013 - 21 W 36/12, para. 119 f.; OLG München, 26.06.2018, – 31 Wx 190/20, para. 48; OLG Stuttgart, 05.06.2013 - 20 W 6/10, para. 169; Großfeld, Egger, Tönnes, Recht der Unternehmensbewertung, 9. Auf. 2020, para. 296, 320; Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, §§ 16. 7 et seq., Koch, AktG, 20th ed. 2026, § 305, para. 31; Winner in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2th ed. 2019, §§ 16.10 f.; alle m. w. N.

[26] IDW Standard S1 dated 24.02.2026, IDW Life 2026, 535 et seq.

[27] Schieszl, Neufassung des IDW S1, IDW Life 2026, 579.

[28] Reuter, Börsenkurs und Unternehmenswertvergleich - Gleichbehandlung der Aktionäre, Synergie und die Lage bei Verschmelzungen nach BGH-DAT/Altana, DB 2001, 2483, 2489.

[29] https://www.unicreditgroup.eu/content/dam/unicreditgroup-eu/documents/en/investors/unicredit-unlimited-next-phase/Offer-Document-dated-5-May-2026-including-Exemption-Document.pdf

[30] P. 40: „Value creation potential in a Stand-alone Scenario” über die eigene sog. Momentum Strategie der Commerzbank hinaus durch “significant upside and risk reduction potential … which could be generated independently by Commerzbank’s management …”.

[31] The issue wheter pre or after tax results count (see, for example, Reuter, Nationale und internationale Unternehmensbewertung mit CAPM und Steuer-CAPM im Spiegel der Rechtsprechung, AG 2007, 1 et seq.) appears to be negligible for purposes of the present relative value assessment.

[32] Nota bene: The above figures are rough, and are bot economically verified. They are intended to relate first orders of magnitude.

[33] Art. 5(4) of Directive 2004/25/EC of 21 April 2004 on takeover bids: “The highest price paid by the offeror for the same securities over a period to be determined by Member States prior to the bid shall be regarded as the equitable price.”

[34] See Recital (9) of the Directive.

[35] E.g. BVerfG, 27.04.1999 - 1 BvR 1613/94, ZIP 1999, 1436, 1440 et seq. - DAT-Altana; BGH, 12.03.2001 - II ZB 15/00 – DAT /Altana; BGH, 19.07.2010 - II ZB 18/09, para. 7.

[36] Overview in Bungert in Fleischer/Hüttemann, Rechtshandbuch Unternehmensbewertung, 2nd ed. 2019, § 22.35, und Winner, ibid., para. 16.56, with reference to OLG Stuttgart, 08.03.2006 – 20 W 5/05, para. 137, accoring to which synergies have to be taken into account.

[37] References in Noack/Zetzsche, in Schwark/Zimmer, Kapitalmarktrechtskommentar, 5th ed. 2020, § 35 WpÜG, para. 2 et seq.

[38] Examples: ACS for Hochtief (see Baums, ZIP 2010, 2374, 2375; Cascante in FS Wegen, 2015, 175, 188), Porsche Automobilholding SE for VW (see Cascante in FS Wegen, 2015, 175, 183), Bain/Cinven for Stada Arzneimittel AG (see BGH, 23.05.2023 - II ZR 219/ 21 and II ZR 220/ 21); see Großfeld, Egger,Tönnes, Recht der Unternehmensbewertung, 9th ed 2020, para. 313 ff; Santelmann, in Steinmeyer, WpÜG, 4th ed. 2019, § 35 WpÜG, para. 127 et seq.

[39] OLG Düsseldorf, 05.06.2025 - 26 W 7/22, para. 62; same direction but unclear OLG Frankfurt, 05.12.2013 - 21 W 36/12, para. 119 f.

[40] BGH, 29.07.2014 – II ZR 353/12, Postbank, para. 32; fürther references in Noack/Zetzsche, in Schwark/Zimmer, Kapitalmarktrechtskommentar, 5th ed. 2020, § 35 WpÜG, para. 60 et seq.

[41] Zur Verteilungsfrage vgl. demnächst im Blog zum Fall Schaeffler/Vitesco.