The most important elements of the legal basis of prospectus law are the Prospectus Regulation (Regulation (EU) 2017/1129 as well the Capital Market Act 2019 (KMG 2019; Kapitalmarktgesetz 2019), which clarifies the Regulation in greater detail and extends it to also cover investments. In addition, various publications by the European Securities and Markets Authority (ESMA) represent important aids in legal interpretation.
FMA Circular on Prospectus Supervision
The FMA Circular contains a detailed overview about the legal bases for prospectus law. In addition the Circular constitutes a communication about the FMA’s legal perspective about the interpretation of the most material provisions in relation to prospectus law.
The FMA Circular on Prospectus Supervision can be found here:
03/2021 FMA Circular on Prospectus Supervision (Format: pdf, Size: 540,6 KB, Language: English)
ESMA Publications
On 07.05.2026 ESMA issued a Public Statement about the applicability of the provisions contained in the Draft amendment of Delegated Regulation 2019/980 that was approved by the European Commission on 07.05.2026 regarding the standardised format and sequence as well as the streamlined content, scrutiny and approval of prospectuses from 05.06.2026.
On 18.02.2026 ESMA issued a Public Statement regarding clarifications about the transitional provisions in the Listing Act as well as the applicability of new simplified prospectus forms pursuant to Articles 14a and 15a of the Prospectus Regulation from 05.03.2026.
On 11.07.2023 ESMA issued a Public Statement on the sustainability disclosure expected to be included in prospectuses.
ESMA regularly publishes and updates documents that cover complex provisions under prospectus law requiring interpretation. The main sources for prospectus approval procedures are the “Questions and Answers – Prospectuses” as well as the “Recommendations”.
ESMA published a final update to the Q&As on the Prospectus Regulation – ESMA/2019/ESMA31-62-1258 on 03.02.2023. This document is no longer updated, with future Q&As about the Prospectus Regulation being published via the ESMA Q&A Tool.
The ESMA recommendations have partially been converted into Guidelines. On 04.03.2021 ESMA published the Guidelines on disclosure requirements under the Prospectus Regulation. The FMA has declared itself fully compliant.
The ESMA recommendations continue to apply for special issuers like property companies. In the case of property companies, valuation reports containing the content listed in margin note 130 must be included in the prospectus, where and provided that equity securities and non-equity securities as defined in margin note no. 128 are issued, which are guaranteed by properties.
On 01.10.2019 ESMA published the Guidelines on Risk Factors under the Prospectus Regulation. The Guidelines apply with effect from the entry into force of Regulation (EU) 2017/1129 on 21.07.2019.
In relation to Alternative Performance Measures (APM), ESMA published Guidelines on Alternative Performance Measures (ESMA/2015/1415). Questions and Answers (ESMA32-51-370) were also published in relation to these Guidelines.
FMA communication about information obligations for financial intermediaries in accordance with Article 23 (3) of the Prospectus Regulation
Financial intermediaries are the standard addressee of the information obligations defined in Article 23 (3) of the Prospectus Regulation, provided that they are authorised to distribute securities issued by others and places or distributes securities within a public offering. Therefore the term “financial intermediary” under prospectus law covers anyone who:
- acts within the scope of a public offering by the issuer and based on a mutual business relationship (e.g. under a placement or distribution agreement) and
- has received an individual written declaration of consent from the issuer to use the prospectus for the distribution of transferable securities within the scope of public offerings, or
- refers to a general declaration of consent for the purposes of public offerings using the issuer’s prospectus and is therefore required to make the usage of the prospectus that is required to be approved transparent towards the investors.
In contrast anyone who does not publicly offer the securities themselves, and therefore in particular anyone who is merely active in the performance of a client order, is not covered under the term of financial intermediary under prospectus law.
The information obligations in accordance with Article 23 (3) Prospectus Regulation also apply for issuers, where they are financial intermediaries and they distribute their own securities within a public offering (see ESMA Q&A on the Prospectus Regulation 18.02.2020 Q/A 8.3).
The interpretations and enforcement practice about public offerings by ESMA and NCA can be applied on a case-by-case basis (cf. ESMA Q&As, FMA Information on cases to be differentiated from the term “public offering”).
The information obligations in accordance with Article 23 (3) Prospectus Regulation is linked to supplements to prospectuses, the publication of which is suitable for triggering a right of withdrawal in accordance with Article 23 (2) Prospectus Regulation. The respective financial intermediary must inform those investors towards whom they have publicly offered securities, provided that the investors have purchased the securities from the financial intermediary, and these investors might be given a right of withdrawal in accordance with Article 23 (2) Prospectus Regulation based on the published supplement.
Investors, for whom there is no right of withdrawal in accordance with Article 23 (2) Prospectus Regulation, whether it be due to their having purchased the securities following the publication of the supplement or because the circumstance for the supplement was determined or occurred following the deliveries of the securities, are not required to be contacted by the financial intermediary pursuant to para. 3 subpara. 2 of the Prospectus Regulation.
In cases where any doubt exists, contact should occur. Supplements that contain details about circumstances that only occurred after the end of the public offering but prior to (the in any case subsequent) admission to trading are not captured by the information obligations due to a lack of rights of withdrawal.
The same connection of information obligations to the possibility of a withdrawal also applies to individually offered securities under a base prospectus in accordance with Article 8 Prospectus Regulation. Supplements that are drawn up under this base prospectus for current and future public offerings based on the maximum validity of one year of the base prospectus that is to be observed, therefore do not authorisation the withdrawal of subscriptions from previously and already closed offers of securities under this base prospectus.
Further information: