According to Article 8a of the Capital Market Act (KMG; Kapitalmarktgesetz), the FMA is responsible for scrutinising and approving securities prospectuses. Every securities prospectus that is filed with the FMA leads to the initiation of an official procedure.
Applications and deposit with the FMA
Prospectuses must always be submitted with an official application, and as bound documents. Consequently, even the attached copies of the prospectus have to bear the issuer’s original signatures (pursuant to Article 8 para. 1 KMG, with additional signatures required pursuant to Article 8 para. 2 and 2a in the event of a prospectus audit). In cases of notification in another EU Member State, an application for notification is required.
Of the attached copies of the prospectus, one hard copy must be reserved to remain with the FMA (as well as an additional copy for the Österreichische Kontrollbank.
All versions of the prospectus (including any cross reference lists, where applicable) as well as the application for approval are to be submitted to the FMA electronically.
The incorporated documents are required to be deposited with the FMA when any prospectus is filed.
To be filed with legal effect, any electronic, oral, phone or written communication (Article 13 para. 1 of the Code of Administrative Procedure – AVG; Allgemeines Verwaltungsverfahrensgesetz as amended) must take place during the FMA’s business hours .
The application for prospectus approval entails a fee requirement as specified in Part 1 Article 1 para 1 in conjunction with Part 2 TP III.H.2 and TP III.H.3 or H.4 (in the case of a base prospectus) of the FMA Fee Regulation (FMA-GebV; FMA-Gebührenverordnung), Federal Law Gazette II No. 230/2004 as amended, amounting to EUR 3 700 or EUR 4 200 (in the case of a base prospectus) (in addition to EUR 100 per exception).
The fee must be paid within 14 days of receiving the fee decision to the account held at Oesterreichische Nationalbank (IBAN AT550010000000115525, BIC NABAATWW) in the name of “Finanzmarktaufsichtsbehörde gemäß Finanzmarktaufsichtsgesetz, BGBl. I Nr. 97/2001 – Subkonto für Gebühreneinnahmen” (Financial Market Authority pursuant to the Financial Market Authority Act, Federal Law Gazette I No. 97/2001 – sub-account for fee collection).
Improvement orders and other submissions
From receipt of the application by the FMA, the period specified in Article 8a para. 3 and 4 KMG begins, at the end of which either an improvement order (in the form of comments provided to the applicant) or an administrative decision granting approval is issued.
Where an improvement order is issued, the period is interrupted and revised versions of the prospectus are subsequently submitted electronically (including a version indicating the changes).
Each version of the prospectus is to be accompanied by a declaration of identity laid out according to the boilerplates made available below for downloading.
As soon as a prospectus version is submitted that fully implements the changes requested in the improvement order, the final version of the prospectus can be filed.
The final version must be submitted as a bound document.
Parties intending to offer securities or investments for the first time must inform the reporting office at the earliest opportunity about the issuer, the planned date of issue, the total volume, the denomination, the term of the security and, in the case of public offers, any other conditions as well as, if applicable, any other circumstances that may permit an exemption from the obligation to publish a prospectus according to Article 3 KMG.
Note to applicants
The securities prospectus should be largely complete when making the first submission. Apart from a few details that become known only just prior to approval, all details concerning the offer procedures, the issuer and the securities should already be contained in the first submission, if the issuer has targeted a certain schedule and approval date. Exceptions to this are admissible only to the extent expressly agreed within the scope of a preliminary enquiry.
Experience has shown that scheduling is often tight, so that we recommend coordinating the schedules for prospectuses with the FMA’s prospectus team at an early stage, as several market participants have done in the past.
Below you will find helpful documents providing the information required during approval procedures.