Seite - 130 - in Austrian Law Journal, Band 2/2019

ALJ 2019 Hartlieb 130 transactions were to be reported in which managers could use an information advantage at least hypothetically. In contrast, the reporting obligation could only make a very limited contribution to other objectives, such as transparency of shareholdings in particular.39 Neither Austrian nor German law contained any accompanying provisions that enabled investors to trace the initial holdings of financial instruments to the respective manager.40 With the MAR, the European regulator has re-aligned the reporting obligation, both with regard to the objectives pursued, and with regard to the design of the regulation. It is true that the personal scope of application has not changed; certain managers and persons closely associated with them continue to be subject to the reporting obligation.41 However, both the financial instruments subject to reporting requirements42 and the transaction types to be reported have been significantly expanded: the European Commission has issued the Delegated Regulation (EU) 2016/522,43 Art 10 of which provides for a comprehensive catalogue of legal transactions to be notified.44 The reporting requirement now applies to any transaction for the account of a manager or closely related person, including transactions that do not reflect the manager's or closely related person's assessment of the issuer (e.g. the acquisition of financial instruments by inheritance, the automatic conversion of instruments already held, or transactions of an asset manager that the manager cannot influence). In addition, transactions with fixed-interest bonds must also be reported. When trading in such instruments, it is again not possible for a manager to benefit from an information advantage.45 This realignment is reflected in the considerations of the regulator; here, the objective of market transparency and its importance for market integrity is emphasized more strongly than in the past.46 Against this background, it is important to note a substantial difference between the current legal situation and the previous law:47 The reporting obligation no longer serves primarily to provide the investor public with information with a signal effect. Due to the significant expansion of reportable transactions, which now include transactions without any potential signal effect, the interpretation of reports has become more difficult for investors under the current legal regime. Accordingly, the a different opinion, see for instance Rolf Sethe, § 15a WpHG, in Wertpapierhandelsrecht Kommentar, 79 (Heinz- Dieter Assmann/Uwe H. Schneider eds, 6th ed. 2012); Daniel Zimmer & Falk Osterloh, § 15a WpHG, in Kapitalmarktrechtskommentar, 47 (Eberhard Schwark/Daniel Zimmer eds, 4th ed. 2019). The main reason given for the contrary view is the risk of circumventing the publicity provisions. 39 See also Schuster, supra note 13, at 206. 40 For a critical account, see Kumpan, supra note 13, at 452; for the introduction of a corresponding obligation already under the previous legal framework, see Fleischer, supra note 10, at 1226; Schuster, supra note 13, at 206. 41 See chapter III.A. 42 See chapter III.B.3. 43 Commission Delegated Regulation (EU) 2016/522 of 17 December 2015 supplementing Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards an exemption for certain third countries public bodies and central banks, the indicators of market manipulation, the disclosure thresholds, the competent authority for notifications of delays, the permission for trading during closed periods and types of notifiable managers' transactions, OJ 5.4.2016 L88/1. This delegated regulation was adopted on the basis of the authorisation in Art 19 para 14 MAR. 44 See chapter III.B. 45 See chapter III.B.3. 46 Both recital 26 MAD and recital 58 MAR stress the importance of greater transparency for the prevention of market abuse. Recital 58 MAR also emphasises that full and proper market transparency is a prerequisite for the confidence of market participants and in particular the shareholders of a company. 47 See Diekgräf, supra note 20, at 128, 138; Martin Hitzer & Dirk Wasmann, Von § 15a WpHG zu Art. 19 MMVO: Aus Directors‘ Dealings werden Managers’ Transactions, DB 1483, 1484 (2016).