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Approval procedures

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Registration as Submitter of Prospectuses

The FMA is competent under the Capital Market Act 2019 (KMG 2019; Kapitalmarktgesetz 2019) for the checking and approval of single-part and multiple-part securities prospectuses (see “Prospectus Approval”), registration forms and supplements. Every Securities prospectus or part thereof that is filed with the FMA, leads to the initiation of an official procedure. Documents must be submitted electronically via the FMA’s electronic prospectus approval portal – the Secure Electronic Prospectus Portal (SEPP).

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

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

Please use the following access for the submission of supplements to prospectuses that were approved before 21 July 2019: https://webhost.fma.gv.at/epass/

For all other applications for approval (e.g. prospectuses, registration forms, supplements) or for filing purposes, please use the following access: https://webhost.fma.gv.at/epass2/

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

The submitter of prospectuses can only see those documents 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.

Should a notification pursuant to Article 25 or 26 of Regulation (EU) 2017/1129 be intended, then those countries must be selected in which the registration document, the universal registration document, the prospectus or the supplement should be notified.

The documents submitted for filing or approved, the documents that are referred to (incorporated documents) must also be uploaded via the electronic prospectus approval portal when submitting the prospectus.

Improvement orders and resubmissions

Following receipt of the application by the FMA, the period specified in Article 20 of Regulation (EU) 2017/1129 begins, at the end of which either an improvement order (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. It is not necessary for the final version to be signed by the issuer.

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

With effect from 21.07.2019 publication was transferred to the Oesterreichische Kontrollbank AG in its function as the notification office in the form of a transfer agreement pursuant to Article 13 para. 3 KMG 2019. Further information can be found here. In the case of supplements to prospectuses approved after 21.07.2019, unlike the case that existed under the previous legal situation, the same publication and filing regulations must be observed as for prospectuses. As is the case for prospectuses, supplements are also only allowed to be published and filed once approval has been granted.

In the case of supplements to prospectuses approved prior to 21.07.2019, 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 it being identical 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 or the approval of a registration document 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.12 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 a prospectus as a standalone document the fee is EUR 7,000 and for the approval of a registration document or a securities description EUR 3,500. The fee for a supplement is EUR 750.00.  The approval of the omission of certain information in the prospectus pursuant to Article 18 (1) of Regulation (EU) 2017/1129 is EUR 150 per omission.

The detailed list of all charges can be found in the FMA-GebV.

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

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 pursuant to Article 1 of Regulation (EU) 2017/1129 or Article 3 KMG 2019 that might justify an exemption from the obligation to produce a prospectus (see “OeKB’s New Issue Calendar”).

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 during the 4th quarter of 2020. During the transitional period between the 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 the 4th Quarter of 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 in 4th Quarter 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 “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.

The planned go live of the ESMA IT-System is expected to be postponed until the 4th Quarter of 2020.

NEW!! Important advance announcement dated 19.10.2020!! Regarding the obligation to file the final terms of base prospectuses under the Prospectus Regulation and reporting of issuance-related classification date in accordance with Delegated Regulation (EU) 2019/979

The ESMA notification portal that has been announced will go live on 01 December 2020. Consequently the compulsory uploading via the Internet of final terms to the FMA in relation to base prospectuses approved by the FMA will end.

From 01 December 2020 issuers making an offering in Austria only have to notify the final terms of securities prospectuses approved by the FMA in accordance with the Prospectus Regulation – Regulation (EU) 2017/1129 to the OeKB’s Notification Office’s New Issue Calendar under the Capital Markets Act 2019 (KMG 2019) as online notification office.

The online notification office’s notification templates were extended to cover the accompanying data that is relevant for the classification of the prospectuses under the Delegated Regulation (EU) 2019/979. 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.

The compulsory notification to the New-Issue Calendar is based, with regard to offerings in Austria, on Article 24 para. 1 KMG.

Where securities are only going to be offered abroad within the EEA using a securities prospectus approved by the FMA under the Prospectus Regulation, the final terms and the accompanying data that is relevant for the issuance under Delegated Regulation (EU) 2019/979 are to be submitted to the FMA through the online notification office. The receipt of such filings via the online notification office occurs based on a delegation of tasks in accordance with Article 13 para. 3 KMG 2019.

Issuers are reminded about the obligation defined in Article 24 KMG 2019 to notify the final issue price and/or the final issue size under Article 17 of the Prospectus Regulation to the New-Issue Calendar.

Note to applicants

The securities prospectus or the individual parts of a multi-part prospectus should by and large already be complete when being submitted for the first time. 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