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ALJ 2019 Hartlieb 132
the previous legal framework, the scope of application covers not only issuers of shares but also
issuers of debt instruments which are not linked to shares. The issuer may therefore be a German
or Austrian limited liability company that issues bonds. At least pursuant to the German-language
version of Art 3(1)(21) MAR, which refers to "juristische Personen", partnerships with legal capacity
would not be covered.53 However, it can be assumed that the provision has been translated
inaccurately, as the English and French versions use the broader terms „legal entity“ and „entité
juridique“. A systematic look at the English and French versions of Art 3(1)(13) MAR also suggests
such an understanding.54 Here a "person" or "personne" is defined as a „legal person“ and
„personne morale“ and thus applies a narrower term than in fig 21. This is also supported by the
fact that, from a teleological point of view, it would not be comprehensible to exclude partnerships
from the obligation regime of Art 19 MAR: for investors there is the same need for market
transparency as there is with corporations. This indicates that partnerships with legal capacity may
also be issuers.55 Accordingly, the Factsheet of the Vienna Stock Exchange on the Third Market
does not contain any provisions regarding the legal form of the issuer and also permits
partnerships, foundations and natural persons as issuers.56
Art 3(1)(25) MAR determines who is an executive. In accordance with the previous legal regime
under Art 6(4) MAD, this provision contains two groups: On the one hand, the reporting obligation
applies to members of the administrative, management or supervisory body (lit a). On the other
hand, it covers persons who, as senior executives, do not belong to any of the above-mentioned
bodies but regularly have access to inside information relating directly or indirectly to the entity
and who have power to take managerial decisions affecting the future developments and business
prospects of that entity (lit b). Art 3(1)(25) MAR thus contains a formal and a material definition of
executives: when examining who falls within the scope of lit a, the formal membership of the
bodies mentioned therein must be considered. In contrast, the material legal position of a person
is decisive for the scope of application of lit b.
Art 3(1)(26) MAR includes persons closely associated with members of governing bodies and senior
executives in the scope of the reporting obligation. These persons are subject to their own
reporting obligation.57 The provision distinguishes between family and economic relationships: the
family circle includes spouses, or a partner considered to be equivalent to a spouse, in accordance
with national law (lit a), dependent children (lit b) and other relatives who have shared the same
household for at least one year upon the date of the legal transaction (lit c). In addition, legal
persons, trusts and partnerships whose management duties are performed by a person
discharging managerial responsibilities, or by a person named in lit a, b or c who is directly or
indirectly controlled by such a person, which was set up for the benefit of such a person or whose
persons discharging managerial responsibilities within any auction platform, auctioneer and auction monitor
involved in the auctions held under Regulation (EU) 1031/2010. These will not be discussed in more detail.
53 According to the prevailing view in Austria and Germany, the partnerships in question (OG/OHG and KG) have
comprehensive legal capacity, but are not legal entities. Cf. Ulrich Torggler, § 105, in Kommentar zum
Unternehmensgesetzbuch, 14 (Manfred Straube/Thomas Ratka/Roman Rauter eds, 2012); Karsten Schmidt, § 105,
in Münchener Kommentar zum Handelsgesetzbuch, 7 (Karsten Schmidt ed, 4th ed. 2016).
54 German version: „‘Person‘ bezeichnet eine natürliche oder juristische Person“.
55 For the same conclusion, see Sethe & Hellgardt, supra note 1, at 19.
56 See Wiener Börse, Fact Sheet „Dritter Markt – MTF der Wiener Börse AG“ – Listung von Anleihen (valid as of
2.1.2018), 3.
57 See Kalss & Zollner, supra note 35, at 112; Thomas Lechner & Christian Temmel, § 48d, in Praxiskommentar
Börsegesetz, 169 (Christian Temmel ed, 2011) in each case with reference to the previous legal framework.
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Buch Austrian Law Journal, Band 2/2019"
Austrian Law Journal
Band 2/2019
- Titel
- Austrian Law Journal
- Band
- 2/2019
- Autor
- Karl-Franzens-Universität Graz
- Herausgeber
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Ort
- Graz
- Datum
- 2019
- Sprache
- englisch
- Lizenz
- CC BY 4.0
- Abmessungen
- 19.1 x 27.5 cm
- Seiten
- 17
- Schlagwörter
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Kategorien
- Zeitschriften Austrian Law Journal