FMA publishes FAQs on the notification of major shareholdings in listed entities

29 August 2019 – need2know

The Austrian Financial Market Authority (FMA) today published FAQs regarding the notification of major shareholdings in listed entities providing important clarifications on the administrative practice and legal interpretation of the FMA.

The FAQs (as of August 2019) on the notification obligations pursuant to Articles 130 et seq. Stock Exchange Act 2018 published today by the FMA (as of August 2019) address , among others, the following questions:

Unitholders of Austrian investment funds are subject to the notification obligation as they are co‑owners of the shares in the fund (sec 130 Austrian Stock Exchange Act – BoerseG). The thresholds are to be calculated according to the proportion of the shares held in the fund attributable to a unitholder. This is particularly relevant for special funds (but also applies to mutual funds). The main clarification is that the obligation applies irrespective of whether the voting rights out of the shares can be influenced by the unit holder. Further, also the fund management company is obliged to notify, as the fund management company is entitled to exercise voting rights.

Convertible bonds on shares of an issuer are required to be notified as a financial instrument (sec 131 Austrian Stock Exchange Act – BoerseG), unless only new shares (from capital increase) may be delivered upon conversion. Therefore, convertible bonds carrying an option of the issuer to deliver existing (i.e. treasury shares) or new shares (e.g. from conditional capital) – such option is customary in the market – must be notified.

Acceptance declarations during a takeover offer have to be notified by the bidder as financial instrument (sec 131 Austrian Stock Exchange Act – BoerseG). This reporting obligation may have a similar effect to the “water level reports” under the German Securities Takeover Act.

Already the conclusion of a merger or spin-off agreement constitutes a financial instrument subject to notification requirements (sec 131 Austrian Stock Exchange Act – BoerseG).

There is no additional obligation to notify pre-emption rights between pool members as financial instruments, if the mutual attribution of the shares to the pool members has already been notified.

No additional obligation for underwriting banks in respect of shares subscribed for in the course of capital increase (Underwriting) (applicable exception for the purposes of settlement pursuant to sec 130 para 3 Austrian Stock Exchange Act – BoerseG).

The FAQs also explains questions on handling the FMA online notification form, including information on threshold crossed by subsidiaries, fund management companies and changes in a shareholder pool (exit of an entity from a pool acting in concert).

The FAQs (German)

Questions? Please contact:
Christoph Nauer
Elke Napokoj
Daniel Reiter
Roland Juill

Practice Groups:
Capital Markets
Banking & Finance

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