The obligation to transmit an advance notification under section 26 (1) of the WpHG is addressed to issuers, in the same way as the obligation to transmit inside information immediately after its public disclosure to the Company Register for storage (section 8b of the Commercial Code (Handelsgesetzbuch – HGB)). This obligation does not apply to emission allowance market participants.

Until further notice, advance notifications must be faxed to BaFin at the following number:

+ 49 (0)228/4108-200

in line with section 9 of the WpAV.

Required information

An advance notification must be transmitted 30 minutes before the ad hoc disclosure to BaFin and the management of the German stock exchanges to which financial instruments issued by the company have been admitted to trading or included. It does not matter whether the issuer has approved or authorised trading in its financial instruments.

The issuer must therefore itself identify the trading venues to or at which its financial instruments have been admitted or included.

The period before the disclosure is essential so that the managements of the stock exchanges can decide on whether to suspend price quotation and ensure the necessary coordination between the stock exchanges involved. The period may be only reduced with the consent of the management of the relevant stock exchange. It should be noted in this context that consent can only be given during the usual office hours (60 minutes before the start of exchange trading and during the trading hours of the relevant stock exchange). Reducing the period between the advance notification and making public the ad hoc disclosure must be restricted to exceptional cases. The relevant stock exchange will give its consent only in justified cases. In cases where that period has been reduced without the consent of the home stock exchange, there is a risk of quotation being suspended without a detailed examination because of the reduced period.

Under section 8 (1) of the WpAV, the advance notification must contain the following information:

• the wording of the intended disclosure,
• the intended date and time of disclosure, and
• a contact person at the issuer, together with a telephone number.

To ensure that any questions can be clarified without undue delay, it is essential for the contact person named in the advance notification to be reachable at the telephone number given, including after the advance notification has been transmitted.

Supplementary information in context of the advance notification

In the case of ad hoc corrections (section 8 (2) of the WpAV), in the case of the unintentional or unauthorised disclosure of information (section 8 (3) of the WpAV), and in the case of disclosure following a delay (see section I.3.3.1), supplementary information must be disclosed and transmitted to BaFin only.

BaFin’s understanding is that various ad hoc disclosure service providers have the capability to transmit such supplementary information in context of the advance notification to BaFin.

Ad hoc correction

Under section 8 (2) of the WpAV, in the case of a correction disclosure, the reasons for disclosure of the false information must be explained. The reasons given should be sufficiently informative to enable BaFin to assess the matter. They can be transmitted together with the advance notification. To ensure that the disclosure is made public without undue delay, section 8 (4) in conjunction with section 8 (2) of the WpAV gives the issuer the option to transmit the details at a later date within 14 days of the correction being made public. The reasons should be transmitted to BaFin by fax or post and should contain a reference to the ad hoc disclosure concerned.

If the person required to notify the reasons would expose him- or herself or any of his or her relatives as defined in section 383 (1) nos. 1 to 3 of the Code of Civil Procedure (Zivilprozessordnung – ZPO) to the risk of criminal prosecution or proceedings under the Act on Breaches of Administrative Regulations (Gesetz über Ordnungswidrigkeiten – OWiG) because of these reasons, he or she can refuse to disclose the reasons for the disclosure of the false information required by section 8 (3) of the WpAV.

Disclosure of information to a third party

Under Article 17(8) of the MAR, inside information that is disclosed¹ to any third party – who does not owe a duty of confidentiality – in the normal course of the exercise of an employment, profession or duties, or that was not disclosed intentionally to any third party, must be made public simultaneously with the disclosure or, in the case of unintentional disclosure, promptly.

In these cases, section 8 (3) of the WpAV requires the following additional information to be disclosed in the advance notification:

• the first name and surname of the person to whom the inside information was disclosed; if several persons are affected, the names of all persons should be disclosed,
• the business address of that person or, if there is no such address, his/her private address,
• the date when the information was disclosed and
• in the case of unintentional disclosure, the circumstances of the unintentional disclosure.

In this case, too, the circumstances should be described in a way that enables the facts to be assessed. If the person required to make the disclosure would expose him- or herself or any of his or her relatives as defined in section 383 (1) nos. 1 to 3 of the ZPO to the risk of criminal prosecution or proceedings under the OWiG because of the disclosure, he or she can refuse to disclose the information required by section 8 (3) of the WpAV. To ensure that the disclosure is made public without undue delay, issuers have the option of submitting the information referred to above at a later date within 14 days.

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