Home Member State
Following the amendment of the Stock Exchange Act ((BörseG – Börsegesetz) published in Federal Law Gazette I No. 98/2015 – hereafter referred to as BörseG-NEW) there are some changes in relation to the requirement to notify the home Member State. The BörseG-NEW is the national transposition of the Transparency Directive – Directive 2013/50/EU and entered into force on 26 November 2015.
In accordance with Article 82 para. 8a BörseG-NEW in conjunction with Article 81a para. 1 no. 7 BörseG-NEW – specific issuers are required to communicate the choice of home Member State to the competent authorities and disclose this information pursuant to Article 82 para. 8 BörseG-NEW. This reporting requirement does not apply for issuers of shares that have their registered office in the EEA or for issuers of debt instruments with a denomination of less than EUR 1 000 that have their registered office in the EEA (Article 81a para. 1 no 7 point a sub point aa BörseG-NEW). All other issuers should observe the aforementioned provisions contained the Stock Exchange Act regarding the assessment of whether reporting requirements exist.
Those issuers that are subject to the requirement of disclosing their home Member State, must submit the report within three months of initial authorisation regarding the admission to trading on a regulated market. Issuers that already existed at the time these provisions entered into force, who are required to make such a report were therefore required to make the report pursuant to Article 96 para. 2 BörseG-NEW by 27 February 2016.
Issuers, who had already informed the competent authority of the home member state of their choice in this matter prior to 27 November 2015, where exempted from this requirement pursuant to Article 81a para. 1 no. 7 point d BörseG-NEW, unless the issuers in question decided to choose another home Member State after 27 November 2015 (Article 96 para. 2 BörseG-NEW).
The European Securities and Markets Authority (ESMA) published a form for submission of these notifications (see ESMA Notification Form). This form has been adapted to the Austrian legal situation and translated into German by the FMA. For the notification of the home Member State the FMA recommends to use this adapted form which can be downloaded below.
Notifications of home Member State may be submitted by e-mail to marktaufsicht(at)fma.gv.at. In this instance it is not necessary to make an additional submission by post or fax.