Issuers whose debt or equity instruments are admitted to trading on a regulated market are essentially subject to ad hoc disclosure requirements, directors’ dealing reports, financial reporting and the notification of any substantial changes in the shareholding of the issuers. With minor modifications, these requirements also apply to foreign companies listed on the VSE if Austria is the home member state (as defined in the Transparency Directive).
Ad hoc disclosure (dissemination of inside information)
Pursuant to article 17 of MAR, which entered into force in July 2016, issuers of financial instruments shall inform the public as soon as possible of inside information that directly concerns that issuer. Inside information according to article 7 of the MAR is any information of a precise nature, which has not been made public, relating, directly or indirectly, to one or more issuers or to one or more financial instruments, and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments.
By way of example, in an M&A scenario the decision of the core shareholders to divest their shareholding may already constitute an interim event to be disclosed by means of an ad hoc announcement as it qualifies as inside information. Eventually, the agreement with a purchaser would also constitute inside information. In such case, not only the sale but also the interim event would be subject to the prohibition to misuse inside information as well as the issuer’s ad hoc obligation.
The issuer shall ensure that the inside information is made public in a manner that enables fast access and complete, correct and timely assessment of the information by the public and, where applicable, in the officially appointed mechanism referred to in article 21 of the Transparency Directive. The issuer shall not combine the disclosure of inside information to the public with the marketing of its activities. The issuer shall post and maintain on its website for a period of at least five years, all inside information it is required to disclose publicly.
Inside information has to be disclosed ad hoc with the intention of an EU-wide distribution via certain channels, including Reuters, Bloomberg and Dow Jones Newswire. Any major changes with respect to inside information, which has already been disclosed, must be disseminated immediately after any such change takes place.
In certain cases, an issuer possessing inside information is entitled to postpone the ad-hoc disclosure in order to protect its justified interests. Issuers are permitted to delay disclosure of inside information to protect their legitimate interests, as long as the public is not misled and confidentiality can be maintained (article 17, paragraph 4 of the MAR). In that case, the issuer is obliged to ensure confidentiality. The FMA has to be notified immediately after the disclosure of inside information via email. To preserve the stability of the financial system, an issuer that is a credit institution or a financial institution, may, on its own responsibility, delay the public disclosure of inside information, under certain circumstances.
Managers’ transactions (directors’ dealing reports)
The issuer shall ensure that transactions relating to the shares or debt instruments of the issuer of a person discharging managerial responsibilities, as well as persons closely associated with them, are disclosed no later than three business days after the transactions (article 19 MAR). The notifications apply to transactions once the total amount has reached €5,000 within a calendar year.
Issuers of debt and equity securities must disclose annual financial statements no later than four months after the close of the financial year and half-year reports no later than three months after the close of the reporting period, and shall ensure that this report is available to the public for at least 10 years (sections 124 and 125 of the BörseG 2018). Moreover, issuers whose shares are listed in the VSE’s Prime Market segment (a special segment with higher transparency requirements) must additionally publish quarterly financial statements for the first and third quarters.
The FMA informed securities issuers that in accordance with the standards in the Transparency Directive annual financial reports for financial years starting from 1 January 2020 will be required to be published in the European Single Electronic Format (ESEF). An overview about the planned process for the acceptance of the technical standards on the reporting format in which issuers should prepare their annual financial reports is currently provided by the draft Regulatory Technical Standards (RTS).
Disclosure of major shareholdings
In terms of major shareholding disclosure, such obligation applies to all shares carrying voting rights and to financial instruments provided that they may result in an acquisition of shares carrying voting rights (eg, options, ADRs, exchangeable bonds). Any acquisition or disposal of shares carrying voting rights of an issuer with Austria being the home member state, whose shares are admitted to trading on a regulated market, triggers disclosure obligations if certain thresholds for major holdings are affected. The reporting obligation arises as soon as the proportion of voting rights reaches, exceeds or falls below a threshold of 4, 5, 10, 15, 20, 25, 30, 35, 40, 45, 50, 75 or 90 per cent in the course of acquisition or disposal transactions. Issuers may also provide for a lower first threshold of 3 per cent of voting rights in their articles of association. A special condition for this to become effective is the publication of the clause of the by-laws on the issuer’s website and the notification of the FMA.
The notification obligation pursuant to section 130 of the BörseG 2018 shall also apply to persons who directly or indirectly hold financial instruments pursuant to section 1, No. 7 of the WAG 2018 (eg, shares in companies, bonds or other forms of securitised debt, options, futures, swaps) or other similar instruments (section 131, paragraph 1 of the BörseG 2018).
Pursuant to section 133 of the BörseG 2018, the disclosure obligation also extends to persons who are authorised to exercise voting rights under a shareholders’ agreement or a similar arrangement, under shares that have been given to them as collateral, if they may exercise the voting rights without express instructions, and under other arrangements where the person may exercise the voting rights without being the owner of the shares or such voting rights attach to shares of other parties acting in concert with the addressee of the disclosure obligation.
The disclosure obligation is based on a dual-stage mechanism. The shareholder must inform the FMA, the VSE and the issuer about the voting rights held within two trading days after the trigger event. As soon as the issuer receives the notification of the shareholder pursuant to section 134, paragraph 1 of the BörseG 2018, it must publish all information contained therein no later than after two trading days.
For the purposes of calculating the thresholds, the issuer shall disclose the total number of voting rights and the capital at the end of every calendar month in which there has been an increase or reduction of voting rights or capital.
Should an issuer of shares acquire or sell its own shares, the issuer shall disclose the percentage of its own shareholding at least two trading days after the acquisition or sale, if these shares reach, exceed or fall below the threshold of 5 per cent or 10 per cent of voting rights.
In addition to the disclosure requirements set forth in the BörseG 2018, issuers whose financial instruments are listed in particular market segments of the VSE are subject to disclosure requirements under private law. These disclosure requirements are based on a contractual relationship between the issuer and the VSE (eg, the agreement on the inclusion in the Prime Market, the highest market segment of the VSE, with reference to the VSE’s Prime Market Rules). The Prime Market Rules go beyond reporting requirements of the BörseG 2018 and set additional standards.
According to the Prime Market Rules, issuers must commit to comply with the rules of the Austrian Code of Corporate Governance. Issuers that are subject to the company law of another EU member state or EEA member state and are admitted to the Prime Market must comply with a Code of Corporate Governance recognised in the respective economic area. Issuers must include a declaration of commitment in the annual financial report or in a corporate governance statement that shall be published on the company’s website.
English language listing prospectuses used for admission to the prime market require a German language translation of the summary for listing purposes. The issuer must make the German language summary available together with the listing prospectus on its website and ensure it stays available to the public for at least one year after the end of the offer period.
Moreover, issuers must prepare a corporate action timetable two months before the beginning of the respective business year in German and English and keep it up to date and available to the public on their website. The timetable must contain at least the following dates:
- publication of the financial results for the year;
- record date ‘annual general meeting’;
- annual general meeting;
- dividend ex day;
- record date ‘dividends’;
- dividend pay-out day;
- publication of the quarterly results;
- the date for the announcement of preliminary results, if applicable; and
- dates of the extraordinary annual general meetings (as soon as they are fixed).
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