Page - 137 - in Austrian Law Journal, Volume 2/2019

ALJ 2019 Managers’ Transactions 137 high-volume transaction would not have to be reported, although its disclosure is important for market transparency.83 It is not clear from Art 19(8) MAR whether, in calculating the threshold, the manager's own affairs and those of persons closely associated with him or her must be added together or whether the threshold must be calculated individually for each person covered by the personal scope of the provision. The European Securities and Markets Authority (ESMA)84 and the Federal Financial Supervisory Authority of Germany (BaFin)85 take the latter view.86 This is convincing in light of the MAR concept, according to which transactions of closely related persons are not to be reported by the respective manager, but are subject to a reporting obligation of their own. It would be systematically incomprehensible to deviate from this approach when calculating the threshold value and to add the transactions of a manager as well as transactions of persons closely related with him or her.87 The fact that Art 19 MAR does not impose an obligation on closely related persons to inform the manager of their business also speaks in favour of an individual consideration; the manager would, therefore, often not even be able to determine whether a reporting obligation already exists or not.88 Therefore, if a member of the management board purchases shares of the issuer for € 4,000 and his or her dependent child purchases shares of the issuer for € 2,000, the reporting obligation of Art 19 MAR does not apply to either of them. E. Reporting Procedure The reporting obligation under Art 19(1) and (2) MAR applies to managers and natural persons, legal persons, partnerships and trusts closely associated with them ad personam in each case.89 The addressee of the notification is, on the one hand, the issuer. The person responsible for this (e.g. the compliance officer) is generally easy for managers to identify. Closely related persons will often have to rely on the help of the executive or on contact information on the issuer's homepage. On the other hand, managers’ transactions are to be reported to the supervisory authority – the FMA in Austria and the BaFin in Germany. Due to the domicile principle of the MAR, the national supervisory authority (e.g. the FMA) is also responsible if shares of a stock corporation domiciled in Austria (e.g. in Vienna) are listed exclusively or additionally abroad. The report must be submitted using the template contained in the Annex to the Implementing Directive (EU) 2016/523; in Austria, this must be sent by e-mail to marktaufsicht@fma.gv.at, in Germany, the report form must be sent by fax to BaFin.90 The BaFin's guidelines for Managers’ Transactions contain various examples of reports which can be used as a basis for persons obliged to report.91 83 Matthias Rathammer & Markus Sam, Ad-hoc- und Directors‘ Dealings-Verpflichtungen im MAR Regime, ÖBA 436, 438 (2016); Semrau, supra note 82, at 54. 84 ESMA Q&A (ESMA70-145-111) 7.3. 85 BaFin, supra note 68, Frage III.1. 86 Likewise Stegmaier, supra note 19, at 94; for a different opinion Kalss & Oppitz & Zollner, supra note 13, at 19/39; Maume & Kellner, supra note 28, at 289. 87 Likewise Kumpan, supra note 13, at 455. 88 Kumpan, supra note 13, at 455; Schäfer, supra note 24, at 16.16. 89 See Kalss & Zollner, supra note 35, at 112; Lechner & Temmel, supra note 57, at 169, in each case with regard to the previous legal regime. 90 The fax number can be found in the BaFin guidelines (footnote below). 91 See BaFin, supra note 68, at 20 – 31.