Seite - 129 - in Austrian Law Journal, Band 2/2019

ALJ 2019 Managers’ Transactions 129 manager has an information advantage over the investor public.30 Also in this regard the obligation to report does not promote the prevention of insider dealing. However, the obligation to disclose managers' transactions contributes to the integrity of the capital market insofar as managers could refrain from using information situated within the grey area of insider information, being unsure about the legality of the transaction and thus fearing a discovery of the possible insider dealing due to the reporting obligation.31 Moreover, from the point of view of the investing public, executive transactions often seem to be based on insider knowledge, especially when they become known sometime after the transaction has been concluded.32 Timely disclosure ensures transparency in this respect, as it avoids speculation about the legality of the transaction and thus strengthens investors' confidence in the capital market. C. Change of the Significance of the Objectives According to MAD and MAR For the first time, the European regulator provided for a reporting obligation for managers in the form of Art 6(4) of the now repealed Market Abuse Directive (MAD).33 Persons discharging managerial responsibilities and persons closely associated with them were required to inform the competent authority of all transactions conducted on their own account relating to shares of the issuer, or to derivatives or other financial instruments linked to them. The disclosure was to create greater transparency in order to prevent market abuse and to provide investors with valuable information.34 Accordingly, these objectives were also central to the implementation of the Directive's provisions in Austrian law (section 48d para 4 BörseG 1989) and German law (section 15a WpHG).35 The German legislator underlined particularly clearly that – due to the abstract information advantage of managers – the disclosure of those transactions, on the one hand, strengthens market integrity and, on the other hand, provides the investor audience with information with a signal effect.36 This also indirectly promoted equal treatment of investors.37 The regulations were interpreted in accordance with precisely these objectives: according to the prevailing view,38 only those legal 30 An exception can be found in the scope of application of Art 19 (11) MAR; in this case, the transactions of executives are prohibited, regardless of whether they are based on insider information or on a generally permitted information advantage. 31 See also Schuster, supra note 13, at 199. This is explicitly confirmed by the (German) government draft for the introduction of section 15a dWpHG, BT- Drucks. 14/8017, 87: “Der Anschein des Insiderwissens ist diesen Transaktionen also immanent“. 33 Directive 2003/6/EC of the European Parliament and the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), OJ 12.4.2003 L96/16. This Directive had repealed Council Directive of 13 November 1989 coordinating regulations on insider dealing (89/592/EEC), OJ 18.11.1989 L334/30, on insider trading and introduced a regulation for market manipulation. 34 Recital 26 MAD. 35 See Susanne Kalss & Johannes Zollner, Directors‘ Dealings – Der neue § 48d Abs 4 BörseG, GeS 106, 106 (2005). 36 BT-Drucks. 14/8017, 87 f. 37 For the connection between the signal effect and the equal treatment of investors, see chapter II.B.2. 38 See e.g., Michael Erkens, Directors‘ Dealings nach neuem WpHG, Der Konzern 29, 35 (2005); Kalss & Oppitz & Zollner, supra note 13, at 19/25; Pfüller, supra note 16, at 125 et seq; Sorika Pluskat, Die durch das Anlegerschutzverbesserungsgesetz geänderte Regelung der Directors‘ Dealings vor dem Hintergrund der Richtlinie zur Durchführung der Marktmissbrauchsrichtlinie, BKR 467, 471 (2004); id, Die Neuregelung der Directors‘ Dealings in der Fassung des Anlegerschutzverbesserungsgesetzes, DB 1097, 1099 et seq (2005); Julia von Buttlar, Directors‘ Dealings: Änderungsbedarf aufgrund der Marktmissbrauchsrichtlinie, BB 2133, 2137 (2003); for