Disclosure Requirements – Austria
Disclosure Category: 2
Disclosure of a beneficial owner may be asked by the subcustodian or the CSD if required by the applicable anti-money laundering (AML) rules.
Investors that hold securities in the Austrian market are required to report if they exceed the set thresholds.
Consent
Clients 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. Clients not willing to give this consent cannot hold such securities and/or financial instruments in their account with Clearstream Banking.
Disclosure requirements
Disclosure of a beneficial owner may be asked by the subcustodian or the CSD (prior to or throughout the business relationship), if required by the applicable AML rules (Finanzmarkt-Geldwäschegesetz). There are no other disclosure obligations for custodians holding shares on behalf of their clients.
Background and legal basis
The obligation to report, which falls on the shareholder, derives from Article 130 of the Börsegesetz 20218 (BörseG 2018, 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.
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.
In accordance with Article 132 BörseG 2018, the reporting obligation shall also apply when shares (Articles 130 and 133 BörseG 2018) and financial and other similar instruments (Article 131 BörseG 2018) cross a threshold when aggregated.
The Finanzmarkt-Geldwäschegesetz stipulates that disclosure of a beneficial owner may be asked by the subcustodian or the CSD (prior to or throughout the business relationship), if required by the applicable AML rules.
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 on 23 July 2019 (SDR II Law).
Sanctions
Any person who does not fulfil their disclosure obligations will be sanctioned by the Finanzmarktaufsichtsbehörde (FMA, Austrian Financial Market Authority) by a fine of up to EUR 2 million or up to twice the amount of the benefit gained from the violation commited – the higher amount being applicable – and provided such benefit can be expressed in figures by the FMA.
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 clients 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.
Clients 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.
Obligation to report threshold crossings
Major holdings – FMA
The obligation to report, which falls on the shareholder, derives from Article 130 of the BörseG 2018. The Transparency Directive stipulates, in Article 9, Paragraph 4, as implemented in Austrian law in April 2007 that 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 only in relation to an issuer whose shares are admitted to trading on a regulated market and whose home member state is Austria.
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.
Thresholds
The reporting obligation arises as soon as during purchase/disposal/other procedures the holding reaches, exceeds or falls below a threshold of 4%, 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. 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).
Attribution
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.
Examples:
- 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.
Aggregation
The reporting obligation shall also apply when shares, financial and other similar instruments cross a threshold when aggregated.
Specifics for Austria
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).