Page - 136 - in Austrian Law Journal, Volume 2/2019

ALJ 2019 Hartlieb 136 with the notarial deed obligation (section 1(1d) NotAktG) or notarial certification (section 518 BGB). If the parties do not comply with the notarial deed obligation or the notarial certification, the transaction is deemed to be a non-formal obligation.75 As such, it does not entail any legal obligations and therefore does not have to be reported. In this respect, the regulation is the same as in the case of transactions subject to a preceding condition.76 In Germany, the time of acceptance of an inheritance (section 1943 BGB) is decisive for the acquisition of financial instruments by way of inheritance. If the inheritance is subsequently disputed, this can also trigger the obligation to notify.77 In Austria, it is not necessary to report the submission of the declaration of inheritance because it is not certain at this point that the manager will receive the financial instruments available in the estate. Rather, the decisive point in time is the allocation of the financial instruments by a legally binding order of inheritance. If the manager receives financial instruments subject to the reporting obligation as a legacy, the acquisition under property law must be considered for factual reasons.78 D. De Minimis Threshold Transactions on the managers’ account whose total volume does not exceed the threshold of € 5,000 per calendar year need not be reported, pursuant to Art 19(1)(ii) in conjunction with (8) MAR. This threshold previously took into account the fact that low-volume transactions have little or no signal effect on the investor public.79 Now it serves above all to protect the investor public from an information overload caused by (too) many reports and the responsible authorities from work overload.80 The threshold value of € 5,000 is calculated by adding all transactions without netting. The effects of opposing transactions, such as the purchase and sale of financial instruments, must therefore not be netted, but added together.81 According to Art 19(8) MAR, the obligation to report shall apply "to any subsequent transaction once a total amount of EUR 5,000 has been reached". According to para 1 subpara 2 leg cit, the report shall be made “once the total amount of transactions has reached the threshold set out in paragraph 8 (...) within a calendar year”. Contrary to the ambiguous wording, already the transaction with which the threshold is exceeded must be reported.82 Otherwise, an individual 75 See Heribert Löcker, § 943, in Online-Kommentar zum ABGB, 8 (Andreas Kletečka/Martin Schauer eds, 2016); regarding the notarial deed form, see Marie-Therese Fritzer, Form der Schenkung 5 et seq, 265 et seq (2018). 76 The parallel to transactions subject to a preceding condition can also be seen in § 1 (1) d NotAktG: „Die Giltigkeit der nachbezeichneten Verträge und Rechtshandlungen ist durch die Aufnahme eines Notariatsactes über dieselben bedingt“; see also Fritzer, supra note 75, at 42, 88 et seq. 77 BaFin, supra note 68, Frage IV.7. 78 In the event of the testator’s death, the legatee receives a claim under the law of obligations against the estate (section 684 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch; ABGB)). However, the manager will often only become aware of this at a later point in time - namely in the course of the probate proceedings. If the focus were on the time the manager receives the claim, he or she would often not be able to fulfil his or her duty to report within the prescribed period. 79 See Hartlieb & Simonishvili, supra note 14, at 63. 80 Recital 58 MAR; Kumpan, supra note 13, at 454. 81 Kumpan, supra note 13, at 454. 82 Stephan Semrau, Art 19, in Kommentar zur Marktmissbrauchsverordnung, 54 (Lars Klöhn ed, 2018); BaFin, supra note 68, Frage III.2.