Seite - 135 - in Austrian Law Journal, Band 2/2019

ALJ 2019 Managers’ Transactions 135 However, this rule does not apply without exception. According to Art 10(2)(i) of the Delegated Regulation (EU) 2016/522, "conditional transactions” are to be reported “upon the occurrence of the conditions and actual execution of the transactions". It follows from the wording, in particular from the link between the occurrence of the condition and the actual execution of the transactions,69 that the provision only covers the execution (“modus”), subject to a predetermined condition.70 If an unconditionally effective obligation (“titulus”) is concluded, the execution, however, is subject to a precedent condition. It must, therefore, only be reported if the transaction is executed after the occurrence of the condition.71 The preceding conclusion of the contract is not to be reported as this would be misleading for the investor public, for example, in cases where the condition does not occur and, therefore, the transfer of the financial instruments does not take place.72 The dispute as to whether the reporting obligation in a transaction which creates the obligation (“titulus”) subject to a preceding condition arises when the transaction is concluded, or only when the condition is fulfilled has not been settled.73 Here, too, the occurrence of the condition and not the preceding transaction is decisive. There is no reason to make a distinction in this respect between a conditional transaction which creates the obligation (“titulus”) and a conditional transaction in property law (“modus”). In both cases the assessment of Art 10(2)(i) of the Delegated Regulation (EU) 2016/522 applies, according to which a reporting obligation (only) arises when the transaction can be legally enforced from the point of view of the contracting parties. This is also supported by the fact that prior notification could be misleading for the market, especially if the condition precedent does not apply. Due to the realignment of the objectives pursued by the reporting obligation, it is clear that acquisitions by gift or inheritance must also be reported. With regard to the relevant point in time to report, attention must be paid to special features: a binding donation of financial instruments in Austria, for example, requires either an actual transfer of the financial instrument or the incorporation of a notarial deed (section 1(1d) of the Notary Law (Notariatsaktsgesetz; NotAktG)). In Germany, they can either be given immediately as a donation or in the future if the promise to donate is notarised (section 518 of the German Civil Code (Bürgerliches Gesetzbuch; BGB)). In the case where a manager actually transfers or donates shares, the time of the entry of the shares in the recipient's securities account will often be decisive for the notification.74 If the instruments are not to be transferred until a later date, the obligation to register arises on the day of compliance (2014); Stegmaier, supra note 19, at 65; equally BaFin, FAQ zu Eigengeschäften von Führungskräften, Frage IV.1 (10. Version, 23.11.2018); for a different opinion, see Roman Stenzel, Managementbeteiligungen und Marktmissbrauchsverordnung, DStR 2017, 883 (887). 69 This link is also expressed in ESMA, Final Report of 2.3.2015 (ESMA/2015/224), marginal note 109: „In relation to conditional trades the requirement to report arises only with the occurrence of the condition, thus when the trade takes place.” 70 BaFin, supra note 68, Frage IV.2. 71 BaFin, supra note 68, Frage IV.2; Stegmaier, supra note 19, at 79. 72 ESMA, Final Report of 2.3.2015 (ESMA/2015/224), mn 109. 73 For the former e.g. Kalss & Oppitz & Zollner, supra note 13, at 19/23; for the latter opinion e.g. Marc Engelhart, Meldepflichtige und meldefreie Geschäftsarten bei Directors‘ Dealings (§ 15a WpHG), AG 856, 858 et seq (2008); Uwe H. Schneider, Der pflichtenauslösende Sachverhalt bei „Director´s Dealings“ – Der sachliche Anwendungsbereich des § 15a WpHG, BB 1817, 1819 (2002). 74 BaFin, supra note 68, Frage IV.10.