An issuer which publicly offers securities or intends to apply for admission to a regulated market of the Vienna Stock Exchange must prepare a comprehensive securities prospectus containing key information on the issuer and the securities to be issued. In line with the legal provisions contained in the Austrian Capital Market Act (KMG; Kapitalmarktgesetz), the Financial Market Authority checks these securities prospectuses for completeness, coherence and comprehensibility.
Approval by the FMA
In order to be valid, a securities prospectus must be approved by the FMA and published in a legally valid form. Similarly, supplements to previously approved securities prospectuses also require approval by the FMA. Such supplements must be prepared by the issuer when important new facts occur or original inaccuracies are discovered between the approval of the prospectus and the final closure of the public offering or, if it occurs later, the opening of trading on a regulated market.
The FMA is responsible for scrutinising and approving prospectuses and supplements of any public offering of securities or their admission to trading on a regulated market of Wiener Börse AG. If the offer of securities does not exceed a total value of EUR 5 million within twelve months, a simplified prospectus in accordance with Schedule F of the KMG may be drawn up.
The FMA’s statutory scrutiny benchmark does not include checking the correctness of the information contained in the securities prospectus. It is the issuer who is liable for the correctness of the information provided in the prospectus.
The FMA advises about Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC, which was published on 30 June 2017 in the Official Journal of the European Union. The Prospectus Regulation enters into force on the twentieth day following its publication in the Official Journal of the European Union, in this case on 20 July 2017, and shall by and large be applicable by 21 July 2019. The provisions of points (a), (b) and (c) of subparagraph 1 of Article 1 (5) as well as subparagraph 2 of Article 1 (5) in relation to the exemption from the obligation to publish a prospectus for the admission to trading on a regulated market of specific types of securities shall however already apply from 20 July 2017. The provisions of Article 1 (3) and Article 3 (2) (threshold values for the obligation to publish a prospectus) shall apply from 21 July 2018. Further information can be found here.
On 1 August 2016, the ESMA’s IT-based system for the distribution of Final Terms went live.
The system is intended to support national supervisory authorities to comply with the obligation that has existed since the start of 2016, namely to distribute the Final Terms to the competent authorities in host Member States (countries where the prospectus has been notified). Consequently, the FMA is also placed in a position to fulfil its obligation pursuant to Article 7 para. 4 KMG.
Issuers of base prospectuses are requested, with immediate effect, in the event that they have not already been doing so, to upload the individual Final Terms including the summary and the respective translation into the national language of the host Member State, in a single document, either
- as a PDF (Final Terms, summary and all translations), or
- as a ZIP archive (containing several PDF files for the Final Terms including the summary and the respective translation)
via the FMA’s web upload option.
Provided that this is done, the FMA will then distribute the Finals Terms to the competent authorities in the host Member States using the ESMA system, thereby taking over a responsibility that was hitherto placed upon the issuers.
Also of relevance is Commission Delegated Regulation (EU) 2016/301 of 30 November 2015 supplementing Directive 2003/71/EC of the European Parliament and of the Council with regard to regulatory technical standards for approval and publication of the prospectus and dissemination of advertisements and amending Commission Regulation (EC) No 809/2004, which can be downloaded at: http://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=CELEX:32016R0301. This RTS (Regulation (EU) 2016/301) entered into force on 24 March 2016.
Financial Market Authority (FMA)
Division III/4 – Prudential Supervision Asset Management and Capital Market Prospectus