Page - 133 - in Austrian Law Journal, Volume 2/2019

ALJ 2019 Managers’ Transactions 133 economic interests are substantially equivalent to those of such a person (lit d), are subject to the reporting obligation. B. Material Scope of Application 1. Transactions Conducted on One’s Own Account According to Art 19(1) MAR, every transaction conducted on the account of a manager or a person closely associated with him or her, is to be reported. The English language version of MAR is more precise than the German version, according to which any „Eigengeschäft“ must be disclosed.58 It is irrelevant whether the manager acts in his or her own name or not. Transactions of the manager for the account of third parties are not transactions on his or her own account and are therefore not to be reported. This is confirmed by a systematic look at Art 19(11) MAR, which explicitly refers to "transactions on its own account or for the account of a third party" for the trading prohibition laid down therein and thus to a wider scope of application than the reporting obligation of (1) leg cit. Third-party transactions on the account of the manager are not subject to the own-account concept of Art 19(1) MAR but must be reported under the conditions of Art 7(b) leg cit and Art 10(2)(o) of the Delegated Regulation (EU) 2016/522.59 This means that the transactions of an asset manager which are concluded on the account of the manager must also be disclosed. Despite criticism expressed in the legislative process,60 this also applies if the manager or the person closely associated with him or her cannot influence the asset manager's decision making in connection with his investments. 2. Notifiable Transactions It is not conclusively regulated which transactions are to be reported. In any case, the purchase and sale of financial instruments are covered (Art 19(6)(e) MAR). Moreover, according to the demonstrative (“also”) enumeration of para 7, pledging and lending are subject to reporting (lit a). Finally, an extensive, non-exhaustive list of transactions can be found in Art 10(2) of the Delegated Regulation (EU) 2016/522, which covers, for example, donations made or received, inheritances, lending transactions, the acceptance or exercise of stock options, the subscription to a capital increase or debt instrument issuance or the automatic conversion of financial instruments. This broad catalogue underscores the change in objective, compared to the previous regulation: the 58 Stegmaier, supra note 19, at 1, therefore understands "transaction conducted on one’s own account" as all transactions in which the manager is active. 59 See also chapter III.B.2. 60 See European Securities and Markets Authority (ESMA), Consultation Paper – ESMA’s draft technical advice on possible delegated acts concerning the Market Abuse Regulation of 11.4.2014 (ESMA/2013/808) marginal note 90: “contrary to many respondents’ comments that were asking for the notification requirement not to apply to transactions executed by a third party on behalf of a PDMR (…) where there is no discretion exercised by that PDMR (…), Article 19(7)(b), in conjunction with Recital 58 of MAR, clarifies that transactions executed by a third- party on behalf of the PDMR (…) include transactions executed for the account of the PDMR (…) exercising full discretion (meaning that there is no instruction whatsoever from the PDMR […]) as regards the investment strategy of the contract”.