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 Regulation (EU) 2017/1129 and the Austrian Capital Market Act 2019 (KMG 2019; Kapitalmarktgesetz 2019), the Financial Market Authority checks these securities prospectuses for completeness, coherence and comprehensibility.
Important information about checking of prospectuses can be found here.
Approval by the FMA
A securities prospectus must be approved by the FMA’s prospectus approval unit and must be published in a legally valid way. The securities prospectus may be designed as either single-part or multi-part. 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. In addition the FMA is also responsible for the approval of a universal registration document, which allows issuers making frequent use of the capital markets to obtain the status of frequent issuers thereby permitting the time frame for prospectus approval to be shortened from ten banking days to five. Provided that the offering of securities does not exceed a total value of EUR 5 million within twelve months, a simplified prospectus may be drawn up pursuant to Annex D KMG 2019.
The correctness of the information in a securities prospectus is not the subject of the FMA’s legal checking. The respective issuer assumes liability for the correctness of the information listed in a securities prospectus.
On 14.09.2020 Delegated Regulation (EU) 2020/1272 amending and correcting Delegated Regulation (EU) 2019/979 as well as Delegated Regulation (EU) 2020/1273 amending and correcting Delegated Regulation (EU) 2019/980 were published in the Official Journal of the European Union.
On 15.07.2020 ESMA published the final report on the Guidelines on disclosure requirements under the Prospectus Regulation (ESMA-Guidelines on disclosure requirements under the Prospectus Regulation). The FMA hereby advises that parties preparing a prospectus should already use it as guidance prior to expiry of the two-month comply or explain period and it being translated.
The FMA refers to the published communication about the obligation to publish a supplement in relation to COVID-19.
The Delegated Regulation in accordance with Article 1 (7) of the Prospectus Regulation about a document that is to be drawn up to make use of the exemption from publishing a full prospectus pursuant to Article 1 (4) points f and g and Article 1 (5) points e and f (document to replace a prospectus) is expected to be published in the Official Journal during Q4 2020. Details about the consultation can be found here.
On 19.10.2020 the FMA published an important addendum relating to Article 24 para. 1 KMG 2019, which may consulted at IMPORTANT ANNOUNCEMENT REGARDING THE NOTIFICATION TO THE NEW-ISSUE CALENDAR UND THE FILING OF THE FINAL TERMS.
On 01.10.2019 ESMA published the Guidelines on Risk Factors under the Prospectus Regulation. The Guidelines have applied with effect from the entry into force of Regulation (EU) 2017/1129 on 21.07.2019.
On 09.11.2020 ESMA updated the Q&As on the Prospectus Regulation.
On 30.09.2020 ESMA published a Public Statement QA Update Prospectus. The statement informs about old Q&As that were still published under the Prospectus Directive and the applicability of the CESR Recommendations relating to “specialist issuers”.
Division III/4 – Prudential Supervision Asset Management, Prospectuses, and Consumer Information