Page - 139 - in Austrian Law Journal, Volume 2/2019

ALJ 2019 Managers’ Transactions 139 collective interests, but also had individual investors’ interests in mind and thus had an investor- protecting character. On the other hand, the prevailing opinion on section 15a WpHG99 rejected the protective character because the primary objective of the reporting obligation is to promote market transparency and market integrity whereas individual interests are only protected as a side effect. The protective character of Art 19(1) MAR also depends, to a large extent, on the question of whether this provision is intended to, and can, protect individual interests. In this context, the development of the managers' transaction rules is revealing: As shown,100 the MAR attaches much greater importance to supra-individual objectives – in particular to the market transparency as a pre-requisite for the confidence of market participants in the capital market 101 – than the predecessor provisions of the MAD. Accordingly, pursuant to Art 19 MAR, information must also be disclosed which cannot have any signal effect because the exploitation of information advantages is not possible. To allow investors to participate in the (presumed) advantage of information of executives is not an independent objective of Art 19 MAR but merely a (possible) side effect of the collective interests primarily pursued by the provision. 102 The reporting obligation is not aimed at individual protection, to the effect that investors must receive information with a signal effect through the reports. It is, therefore, not to be qualified as protective of individual investors.103 It follows from this that persons obliged to report can only be liable to individual investors on the basis of general principles of tort. In addition, if the pre-requisites of section 1295(2) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch; ABGB) or section 826 BGB are met, an obligation to pay compensation due to intentional immoral damage is possible.104 V. Concluding Remarks This article has shown that the disclosure of managers' transactions is aimed at maximizing market transparency and thus contributing to the integrity of the capital market. The reporting obligation under Art 19 MAR is therefore not limited to cases in which the person discharging managerial responsibilities, or a person closely associated with them, is hypothetically able to exploit an advantage of information in a particular transaction. Providing investors with reports that have a signal effect, which was previously the focus of attention, is now only a (possible) side effect of the collective interests pursued as a primary objective. The new regulatory approach expands the number of notifiable facts considerably. From the point of view of the persons subject to the reporting obligation, it should be noted that almost every 99 Pfüller, supra note 16, at 200, 201; Sethe, supra note 28, at 140; Schuster, supra note 13, at 215; Zimmer & Osterloh, supra note 38, at 110; for a sceptical assessment, see Fleischer, supra note 10, at 1229. 100 See chapter II.C. 101 Recital 58 MAR: „Additionally, full and proper market transparency is a prerequisite for the confidence of market actors and, in particular, the confidence of a company’s shareholders“. 102 See recital 58 MAR: „The publication of those transactions (…) can also be a highly valuable source of information to investors.“ (Emphasis by the author). 103 For the same conclusion, see Kumpan, supra note 13, at 458; Semrau, supra note 82, at 106; see, however, Maume & Kellner, supra note 28, at 292 f. 104 Marcus Commandeur, Handelsverbot für Führungskräfte nach Art. 19 Abs. 11 MMVO, ZBB 114, 123 (2018); Schuster, supra note 13, at 215; Zimmer & Osterloh, supra note 38, at 110.