Disclosure Requirements - Austria
Disclosure Category 2
Background and legal basis
The obligation to report, which falls on the shareholder, derives from Article 130 of the Austrian Stock Exchange Act dated 4 January 2018. The custodian incurs no disclosure obligation. The Transparency Directive stipulates, within Article 9, Paragraph 4 as implemented in Austrian law in April 2007, that disclosure obligations do not apply to custodians holding shares on behalf of clients.
Nonetheless, disclosure of a beneficial owner may be asked by the Sub-custodian or the CSD (prior to or throughout the business relationship), if required by the applicable AML rules (Finanzmarkt-Geldwäschegesetz). Apart from that, the Shareholders rights directive (EU) 2017/828 of 17 May 2017 amending Directive 2007/36/ES as regards the encouragement of long-term shareholder engagement (the second shareholder’s rights directive “SRD II”) has been transposed into Austrian Stock Exchange Act and the Austrian Stock Corporation Act in 23 July 2019 (SDR II Law).
Customers are hereby deemed to consent to disclosure and to the appointment of the requestor (for example, but not limited to the issuer or its agent) as their attorney-in-fact, under power of attorney, to collect from Clearstream Banking such information as is required to be disclosed. Customers not willing to give this consent cannot hold such securities and/or financial instruments in their account with Clearstream Banking.
Obligation to report threshold crossings
Any acquisition that causes the holding to reach, exceed or fall below 4%, 10%, 15% 20%, 25%, 30%, 35%, 40%, 45%, 50%, 75% or 90% must be reported within seven days to the Stock Exchange Council, to the FMA and to the issuing company.
The FMA provides a standard form for disclosure of beneficial owner voting rights (see http://www.fma.gv.at/).
Note: Specific rules are to be applied for shareholders of an Austrian Stock Exchange.
Any person who does not fulfil their disclosure obligations will be sanctioned by the FMA by a fine ofup to EUR 2 million or up to twice the amount of the benefit gained from the violation commited – the gigher amount being applicable – and provided such benefit can be expressed in figures by the FMA.
Pursuant to Article 130 et seq. of the Stock Exchange Act 2018 (BörseG 2018; Börsegesetz 2018) persons who purchase shares, financial instruments or other comparable instruments related to Issuers and in doing so cross relevant percentage thresholds, are required to make a major holding notification. This obligation applies pursuant to Article 131 paragraph 1 (BörseG 2018) only in relation to an issuer whose shares are admitted to trading on a regulated market and whose home member state is Austria.
The reporting obligation arises as soon as during purchase/disposal/other procedures the holding reaches, exceeds or falls below a threshold of 4%, 5%, 10%, 15%, 20%, 25%, 30%, 35%, 40%, 45%, 50%, 75% or 90%. This shall also apply to the thresholds stated by such an issuer in its Articles of Association pursuant to Article 27 paragraph 1 no. 1 of the Takeover Act (ÜbG; Übernahmegesetz). In accordance with Article 130 paragraph 1 (BörseG 2018), the issuer may also stipulate a 3% holding threshold as a relevant threshold in its Articles of Association. A special condition for this provision in the Articles of Association being effective is that it must be published on the issuer’s website and notified to the FMA.
A reporting obligation also arises pursuant to Article 130 paragraph 1a (BörseG 2018) if the proportion of voting rights changes with the shareholder’s active intervention, for instance, as a result of events that change the proportion of voting rights (for example, dilution).
Article 133 (BörseG 2018) broadens the reporting obligations to include certain circumstances under which persons are entitled, legally or actually, to exercise voting rights in one or several of the instances listed in Article 133 (BörseG 2018). The voting rights held by other persons are “attributed” to the person subject to notification.
- Subsidiaries: Attribution of voting rights held by a/an (in-/directly) controlled entity.
- Syndicate agreements (acting in concert): Attribution of voting rights listed in agreements with third parties with regard to the exercising of voting rights.
Financial and other similar instruments
In accordance with Article 131 (BörseG 2018), the notification obligation also applies for persons that (in)directly hold financial instruments or other similar instruments related to the issuer pursuant to Article 1 no. 7 of the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018).
- Contracts for Difference.
In accordance with Article 132 (BörseG 2018), the reporting obligation shall also apply when shares (Article 130 and 133 BörseG 2018) and financial and other similar instruments (Article 131 BörseG 2018) cross a threshold when aggregated.
1. Investor Notification – Web Standard Form
The person subject to the notification obligation shall submit the major holding report to the FMA, the issuer and (if the securities are listed on a regulated market of an exchange operating company) the exchange operating company without delay following the threshold being crossed, but not later than two trading days (Article 130 et seq. BörseG 2018).
Please use the FMA Web Standard Form and pay attention to the instructions as well as the footnotes in the Web Standard Form. After online submission of the Web Standard Form to the FMA you will receive the notification via email (a separate download of the notification is also possible after submission). This notification must subsequently be submitted to the issuer and where applicable to the exchange operating company.
2. Issuer Disclosure
Once the issuer receives the notification pursuant to Article 134 paragraph 1 (BörseG 2018), at the latest however within two trading days. the issuer shall publish all the information contained therein (Article 135 paragraph 2, BörseG 2018).
Shareholder identification as set out in the SRD II Law
The SRD II Law provides for the right for issuers to identify their shareholders.
Issuers can request intermediaries at each level of a custody chain to promptly provide relevant information to facilitate such identification.
Local law introduces a threshold of 0.5% for the Shareholder Identification.
In accordance with SDR II Law as amended, an intermediary (in this case, Clearstream Banking) shall, upon receipt of the shareholder identification disclosure request, transmit similar request to the next intermediaries in the custody chain (that is, Clearstream Banking customers with holdings in the requested securities). A response to the shareholder identification disclosure request shall be sent by every intermediary in the custody chain directly to the recipient's address defined in the request and without delay. Clearstream Banking will generate the response as required, with information regarding shareholder's identity, limited to Clearstream Banking books only.
Customers are hereby informed and acknowledge that, according to Chapter 1a, Article 3a(6) of the SRD II Law, the intermediary that discloses information concerning the identity of shareholders for the purposes of the SRD II rules (including Clearstream Banking), shall not be considered to be in breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision.