Page - 138 - in Austrian Law Journal, Volume 2/2019

ALJ 2019 Hartlieb 138 Pursuant to Art 19(1)(i) MAR, the reporting period shall not exceed three "business days" from the date of the transaction. In para 2, the same time limit is set at three "working days". This linguistic difference also exists in the German version of the MAR. From the French language version (in each case "trois jours ouvrables") it follows, however, that the terms are not based on a different meaning. It remains unclear whether Saturdays count as business days or working days.92 Pursuant to Art 2 (2) Regulation (EEC, EURATOM) 1182/71,93 this is not the case.94 "Business days" or "working days" as defined in MAR are therefore all days other than Saturdays, Sundays and public holidays.95 The issuer is to ensure that the notified information is made public immediately and no later than three business days after the transaction. The issuer's disclosure obligation does not arise on receipt of the notification but on the day on which the reportable transaction is concluded. The reporting deadline of the manager or closely related person and the publication deadline of the issuer are thus identical. The issuer is therefore unable to comply with its obligation in due time if the person obliged to report submits the report at the last possible time. This regulatory technique is questionable from a legal policy point of view and is rightly criticised.96 The Austrian legislator has reacted to this problem in section 155(2) BörseG: If, first, the issuer proves that the person obliged to report submitted the report to it so late that timely publication was not possible, and if, second, the issuer publishes the report on the business day following receipt of the report, the FMA may refrain from punishing the issuer. In order to prevent the risk of sanctions, issuers may require their executives to report earlier (e.g. within two days) by including this duty into their employment contracts. This option does not apply to closely related persons of the manager who are not employed by the issuer. IV. Civil Law Consequences of Transgressions Like the MAD, the MAR does not lay down civil law sanctions for violations of the reporting obligation. However, the realignment of the objectives pursued by the reporting obligation also has an impact here: It has always been controversial whether a breach of the obligation to report gives rise to liability for damages. The predominant doctrine in Austria97 considered the provision on managers' transactions of the previous law as protective of investors.98 The purposes of the reporting obligation – improving market transparency and informing the investor public about transactions with a signal effect – justified the assumption that § 48d(4) BörseG did not only pursue 92 See Katharina Stüber, Directors’ Dealings nach der Marktmissbrauchsverordnung, DStR 1221, 1224 (2016). 93 Regulation (EEC, EURATOM) no 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits, OJ 8.6.1971 L124/1. 94 Sethe & Hellgardt, supra note 1, at 131. 95 Likewise BaFin, supra note 68, Frage IV.5; Schäfer, supra note 24, at 16.19; Semrau, supra note 82, at 61. 96 Hartlieb & Simonishvili, supra note 14, at 63; Poelzig, supra note 68, at 769; Semrau, supra note 82, at 64. 97 Kalss & Oppitz & Zollner, supra note 13, at 19/74; Lechner & Temmel, supra note 57, at 180; for a different opinion, see Christian Herbst & Florian Kusznier, Die Meldepflichten für Directors‘ Dealings, in Handbuch Kapitalmarktrecht: Informationsverhalten am Kapitalmarkt 61, 85 et seq (Ernst Brandl/Susanne Kalss/Otto Lucius/Martin Oppitz/Gerhard Saria eds, 2006). 98 In its decision of 15.3.2012, 6 Ob 28/12d (GesRZ 2012, 252 [Schuhmacher] = EvBl 2012, 763 [Csoklich]) the Austrian Supreme Court also spoke in favour of the protective character of § 48d BörseG. However, the decision did not concern the reporting obligation relating to directors' dealings, but the ad hoc publicity obligation, which was also previously regulated in this provision.