The Austrian legislator has recently presented a proposal for the
amendment of the Austrian Stock Exchange Act, in particular in order to
reflect the changes required due to the implementation of Directive
2010/73/EU. However, some changes of the proposed changes are driven
exclusively by national requirements and intentions.
The maximum fines for certain administrative offences are increased:
while the fines now range from €30,000 ($39,000) up to €50,000, it is
intended to increase this range substantially to €100,000 to €150,000.
According to the draft amendment act, it is also proposed to abolish
the so-called annual document, the document by which issuers are
required (according to Article 10 of the Prospectus Directive, Directive
2003/71/EC, as amended) to provide, at least annually, a document that
contains or refers to all information that they have published or made
available to the public over the preceding 12 months in one or more
Member States and in third countries in compliance with their
obligations under Community and national laws and rules dealing with the
regulation of securities, issuers of securities and securities markets.
The current prospectus threshold of €50,000 for security issues will
be raised to €100,000, so that only issues with a denomination of
€100,000 or above will be excluded from the prospectus requirement.
There will also be a change to the requirement to disclose
shareholdings. The current regime requires shareholders, in addition to
direct or indirect shareholdings, to announce the holding of only
certain derivative financial instruments (but not all) which grant the
right to acquire shares in a listed company.
It is therefore now proposed to include both the changes in
shareholdings of syndicated groups of shareholders as well as financial
instruments which allow the acquisition of shares in a way other than
straight call options: at present, only such options are covered (and
need to be disclosed) which grant the right to acquire shares. In order
to cover also other instruments (or instruments which are simply
structured in a certain way) which allow the silent sneaking-up to a
certain position, however, it is proposed to fill this gap and to cover
all such instruments. Convertible bonds which were not included will be
included in the future.
Another important change will be the sanction for not disclosing (or
not correctly disclosing) shareholdings and rights on shareholdings:
while the incorrect disclosure constitutes currently an administrative
offence, it is proposed that any incorrect disclosure will have the
effect that no voting rights are granted for those shareholdings which
have not been correctly disclosed. The draft amendment to this provision
contains certain reliefs for shareholdings below 15%, however.
The amendment to the Austrian Stock Exchange Act should enter into force on July 1 2012.
Dr Christian Temmel