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Shareholding disclosure

Implementing the EU Transparency Directive, the Austrian parliament has recently amended certain provisions of the Austrian Stock Exchange Act (Börsegesetz; BörseG).

Essential modifications to the former regime have been made on notification requirements when acquiring or disposing of certain major shareholdings.

Any Austrian or foreign natural or legal person who directly or indirectly acquires or disposes of voting shares, which are admitted to trading on a regulated market, is obliged to notify the issuer, the Austrian Financial Markets Authority (Finanzmarktaufsichtsbehörde; the FMA) and the Vienna Stock Exchange (Wiener Börse) of the proportion of voting rights held by that person as a result of the acquisition or disposal, where that proportion reaches, exceeds or falls below the thresholds of 5%, 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 75% and 90%.

The disclosure requirements set forth in part 91 BörseG are only applicable if the issuer's home member state is Austria and if the shares are listed on a regulated market in Austria.

Under the previous regime, the change in major shareholdings had to be disclosed within seven calendar days. This period was only deemed to start after the date on which the possibility of exercising voting rights took effect. This was in principle the case when ownership in the shares had been transferred in rem.

In contrast, the new regime requires the notification to the issuer to be immediate - at the latest within two trading days. The period starts from the day on which (a) the person has or (having regard to the circumstances) should have learned of the acquisition or disposal or of the possibility of exercising voting rights, irrespective of the date on which the acquisition, disposal or possibility of exercising voting rights takes effect; or (b) the person is informed of an event changing the allocation of voting rights (part 91 (1a) of BörseG).

The applicable FMA Transparency Regulation (Transparenz-Verordnung) assumes in part six that a person has knowledge of the acquisition or disposal or the date on which voting rights can effectively be exercised, no later than two trading days after the transaction has been executed.

Accordingly, following implementation of the Transparency Directive, reporting periods for changes in major shareholdings have been shortened from seven calendar days to two trading days. This is also stricter than the Transparency Directive, which would allow a maximum reporting period of four trading days.

Further, reporting of changes in major shareholdings kicks in earlier as the notification period starts running from the day following the contractual obligation to acquire or dispose of major shareholdings (Verpflichtungsgeschäft) rather than from the day of the in rem transfer of ownership (Verfügungsgeschäft) in the shares.

Clemens Lanschützer

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