Page - 134 - in Austrian Law Journal, Volume 2/2019

ALJ 2019 Hartlieb 134 focus is no longer on enabling investors to make an informed transaction decision by reporting transactions with a signal effect but on the objective of comprehensive market transparency.61 This must be taken into account in the case of transactions not mentioned, such as the acquisition of shares in the course of a merger: since it is not a question of the possible signal effect but of creating the highest possible market transparency, managers must also report such acquisitions.62 3. Financial Instruments Transactions relating to shares or debt instruments of the issuer, or to derivatives or other financial instruments linked thereto, are subject to the reporting obligation. Shares are corporate instruments; their owners are shareholders and not creditors of the issuer. All types of shares are covered which are provided for by the respective national law; it is irrelevant whether they have a certain structure or confer certain rights (e.g. voting rights).63 In Austria, for example, ordinary shares, non-voting preference shares, pursuant to section 12a of the Austrian Stock Corporation Act (Aktiengesetz; AktG), and non-voting shares, pursuant to section 26a of the Austrian Banking Act (Bankwesengesetz; BWG) (so-called "bank shares"), are included.64 Transactions with debt instruments or derivatives linked to shares or debt instruments must also be reported. Therefore, transactions with profit participation rights, but also with fixed-interest bonds, are included. It is the inclusion of the latter bonds that again illustrates the re-alignment of the reporting obligation; in the case of these instruments it is not possible for managers to exploit any information advantage.65 In addition, financial instruments associated with these instruments, such as convertible bonds or bonds with warrants on financial instruments of the issuer issued by third parties, are subject to the reporting obligation.66 Instruments that do not qualify as shares, debt instruments or derivatives may be subject to the reporting obligation as "financial instruments" in accordance with Art 3(1)(1) MAR in conjunction with Art 4(1)(15) of the Market in Financial Instruments Directive (MiFID II). C. Time of Notification Art 19 MAR does not explicitly stipulate whether the transaction which creates the obligation (the “titulus”) or the corresponding transaction in property law (the “modus”) triggers the reporting obligation. Since the investor public must be informed promptly in order to make the market as transparent as possible and to avoid the appearance of insider knowledge,67 the (earlier) obligation transaction is decisive.68 61 See recital 28 of the Delegated Regulation (EU) 2016/522. 62 For the same conclusion, see Stegmaier, supra note 19, at 66. 63 If the issuer is not a stock corporation, but e.g. a GmbH or a partnership, only debt instruments can be traded on the capital market, but not their shares. The transfer of these shares is not subject to the reporting requirement of Art 19(1) MAR. Cf Sethe & Hellgardt, supra note 1, at 61. 64 For the structure of such titles, see Franz Hartlieb, Der Schutz besonderer Gläubiger in der Umstrukturierung der AG 73 et seq (2017). 65 See also Hartlieb & Simonishvili, supra note 14, at 62. 66 Schäfer, supra note 24, at 16.5; see also Kumpan, supra note 13, at 451. 67 See BT-Drucks. 14/8017, 87. 68 Hartlieb & Simonishvili, supra note 14, at 63; Maume & Kellner, supra note 28, at 287; Dörte Poelzig, Die Neuregelung der Offenlegungsvorschriften durch die Marktmissbrauchsverordnung, NZG 761, 767 (2016); Christoph Seibt & Bernward Wollenschläger, Revision des Marktmissbrauchsrechts durch Marktmissbrauchsverordnung und Richtlinie über strafrechtliche Sanktionen für Marktmanipulation, AG 593, 601