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Approval procedures

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Registration as Submitter of Prospectuses

Pursuant to Article 8 para. 1 and Article 8a of the Capital Market Act (KMG; Kapitalmarktgesetz) the FMA is competent for the checking and approval of securities prospectuses (see “prospectus approvla“). Every securities prospectus, that is filed with the FMA, leads to the initiation of an official procedure. Prospectuses and supplements must be submitted electronically via the FMA’s electronic prospectus approval portal.

In order to be able to access the electronic prospectus approval portal, the submitter of the prospectus must first register.

Registration

Further information about registration can be found in the “documents” section at the end of this page.

Personal data and a copy of an official photo identification document (e.g. a passport, or a lawyer’s identity card etc.) must be uploaded to verify the identity of the submitter of prospectuses during the registration process. In addition, details are also required to be entered about the entity that the submitter of prospectuses is representing. Once all information has been submitted in full, the registration must be sent off by the person making the registration. The data is then checked by the FMA and then subsequently approved.

Electronic submission

Once registration as a submitter of prospectuses have been successfully conducted, it is possible to submit a prospectus or a supplement. It is not necessary to physically submit the prospectus.

The submitter of prospectuses can only see those prospectuses in the electronic prospectus approval portal which he/she either submitted or for which he/she was listed as the representative for the original prospectus submitter.

For every initial submission of a prospectus the prospectus submitter is required to state in which capacity he/she is submitting the prospectus. In the case of lawyers admitted to practise in Austria, it is generally sufficient to refer to having been granted power of attorney. If someone is acting as the submitter of the prospectus (e.g. employers of the issuer, advisers etc.) then a power of attorney must be submitted to the FMA. A sample power of attorney form (in German) can be found in the “Documents” section at the end of the page.

In the event that a notification pursuant to Article 8b KMG is intended, then it is necessary to select those Member States in which the prospectus or the supplement is intended to be notified.

The incorporated documents referred to in the prospectus or the supplement must also be uploaded via the electronic prospectus approval portal when submitting the prospectus.

For supplement to prospectuses that were approved in 2017, we would request that you contact the FMA’s Capital Market Prospectuses team in advance.

Improvement orders and resubmissions

Following receipt of the application by the FMA, the period specified in Article 8a paras. 3 and 4 KMG begins, at the end of which either an improvement orders (in the form of comments provided to the applicant) or an approval in the form of an administrative decision is issued.

In the event of an improvement order being issued (and the period interrupted) the subsequent submission of revised versions of the prospectus is done electronically using the electronic prospectus approval portal (including a version that indicates the changes made to the previous version).

Approval

As soon as the improvement order has been fully implemented in a submitted version of the prospectus, the file version of the prospectus may be filed.

The final version of the securities prospectus as well as the supplement to a securities prospectus then have the FMA’s signature applied.

Furthermore, the submission of the approved prospectuses or approved supplements to the Oesterreichische Kontrollbank Aktiengesellschaft (OeKB) as the notification office pursuant to the Capital Market Act is also done by the FMA. In the case of supplements, the unapproved published version of the supplement is required to be deposited at the notification office with the declaration that it matches the version that has been submitted to the FMA for approval. This declaration of compliance (in German) may be downloaded from the OeKB website.

Regarding the delivery of the administrative decision regarding the approval of a prospectus or supplement, the applicant may choose between physical collection from the FMA and it being sent by post. The administrative decision is in any case also sent electronically to the submitter of the prospectus upon approval.

Obligation to pay fees

An application for the approval of a prospectus or a supplement triggers the obligation to pay a fee pursuant to Part 1 Article 1 para.1 in conjunction with Part 1 Fee Items (TP) III.H.1 to H.4 on the FMA Regulation on Fees for Financial Market Supervision (FMA-GebV; Verordnung der Finanzmarktaufsichtsbehörde über die Gebühren der Finanzmarktaufsicht), published in Federal Law Gazette II no. 230/2004 as amended.

In the case of an individual prospectus the fee is EUR 3,700.00 or EUR 4,200.00 in the case of a base prospectus. The fee for a supplement is EUR 500.00. The fee for the approval of an exemption from including specific information in the prospectus pursuant to Article 7 para. 6 KMG is EUR 100.00 per exemption.

The fee must be paid within 14 days of delivery of the administrative containing the fee notice into the account held at the Oesterreichische Nationalbank (IBAN AT550010000000115525, BIC NABAATWW). payee “Finanzmarktaufsichtsbehörde gemäß Finanzmarktaufsichtsgesetz, BGBl. I Nr. 97/2001 Subkonto für Gebühreneinnahmen”.

Notification Office

IMPORTANT ANNOUNCEMENT REGARDING THE NOTIFICATION TO THE NEW-ISSUE CALENDAR UND THE FILING OF THE FINAL TERMS

In accordance with Article 24 para. 1 KMG 2019 (published in Federal Law Gazette I No. 62/2019) notifications to the New-Issue Calendar must also contain “the accompanying data that is relevant for the classification of the prospectuses” pursuant to Delegated Regulation (EU) 2019/979 in addition to the final terms. This data is used by the FMA pursuant to Article 21 (5) of the Prospectus Regulation for the purpose of transferring the information to ESMA. ESMA is currently implementing an IT system for this data transfer, which is planned to go live from June 2020. During the transitional period between the expected entry into force of the KMG 2019 and the ESMA IT system going live (i.e. between 21.07.2019 and the intended go live in July 2020) the notification obligation for accompanying data in relation to the issuance that is relevant for classification purposes shall be deemed to have been satisfied, where the notification to the New-Issue Calendar is continued to be made in the same way as prior to the entry into force of the KMG 2019. This will be appraised accordingly in the checking of the legality of the notification.

The final terms for prospectuses approved in accordance with the Prospectus Regulation are to also be continued to be submitted to the FMA by means of a web upload until the ESMA IT system is implemented (expected date of implementation: July 2020) in addition to the notification to the New-Issue Calendar (the FMA will not charge any filing fees), thereafter the overlap in submissions will no longer exist. The notification templates of the New-Issue Calendar are then being extended to include “the accompanying data that is relevant for the classification of the prospectuses” and the final terms are then to be filed exclusively with the New-Issue Calendar.

 

Parties intending to offer securities or investments for the first time, must inform the notification office at the earliest opportunity about the issuer, the planned data of the issue, the total volume, the denomination, the term, and in the case of public offerings, any other conditions, as well as where applicable any other circumstances, that might justify an exemption from the obligation to produce a prospectus (see “OeKB’s New Issue Calendar“).

Note to applicants

The securities prospectus should already be largely complete when making the initial submission. Apart from a few details that only become known just prior to approval, all details concerning the offer procedure, the issuer and the securities should already be contained in the initial submission, in the case that the issuer has targeted a certain schedule and approval date. Exceptions to this are admissible only to the extent explicitly agreed upon within the scope of a preliminary enquiry.

The FMA therefore requests that the schedules for prospectus approval are coordinated at an early stage with the FMA’s Capital Market Prospectuses team.

For the legally valid filing of electronic, spoken, telephonic and written submissions (Article 13 para. 1 AVG in its current version) to the FMA, the FMA’s business hours shall apply.

Documents