Page - 132 - in Austrian Law Journal, Volume 2/2019

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.