Period for public disclosure

Under the first subparagraph of Article 19(3) of the MAR, the issuer or emission allowance market participant must make the notification public promptly and no later than three business days after the transaction¹ in a manner that enables fast access to this information on a non-discriminatory basis in accordance with the standards referred to in point (a) of Article 17(10) of the MAR (see Article 2(1) of Commission Implementing Regulation (EU) 2016/1055). Including in cases where a temporary or final insolvency administrator has been appointed, the issuer (represented by its management board) remains subject to the notification obligation. However, the insolvency administrator is required under section 24 of the WpHG to make available the financial resources required to meet the notification obligation.

Media

Under Article 2(1) of Commission Implementing Regulation (EU) 2016/1055, the notification to be made public must be communicated to the media that can be reasonably relied upon to ensure that the information will be effectively disseminated throughout the European Union. Electronic means must be used for transmission that ensure that the completeness, integrity and confidentiality of the information is maintained during the transmission. The issuer is responsible for completeness, integrity and confidentiality by ensuring that any failure or disruption in the transmission is remedied without undue delay, although the issuer is not responsible for ensuring that the media actually publish the information provided to them.

As a general rule, it is not sufficient for the information to be forwarded only to one medium; rather the information must be provided to a pool of different media. The guidance in section I.3.10.2 relating to the obligations for publication apply, with the necessary modifications.

Security standards and documentation obligations

Under Article 2(1) of Commission Implementing Regulation (EU) 2016/1055 and additionally under section 26 (4) of the WpHG in conjunction with section 3a of the WpAV, it must be ensured when making the information public that

• the information is communicated to the media that are reasonably relied upon by the public to ensure its effective dissemination,
• the information is disseminated throughout the EU on a non-discriminatory basis, free of charge and simultaneously,

• the text of the information is sent to the media in such a way that

  • the sender of the information and the issuer can be clearly identified,

  • the data is adequately protected against unauthorised access or modification, and the confidentiality and security of the transmission are also ensured by the nature of the means of transmission used or by state-of-the-art encryption of the data.

    Transmission by fax satisfies the security requirements under Article 2(1) of Commission Implementing Regulation (EU) 2016/1055.

    The use of regular email or transmission as a PDF is not sufficient. This would require additional suitable measures to clearly identify the sender and for a secure connection or transmission.

  • transmission errors or interruptions can be remedied without undue delay, and

• for transmission of the information to the media,

  • the name of the person subject to the disclosure obligation,
  • the day and time of transmission to the media, and
  • the aim of disseminating the information as prescribed information throughout Europe

are identifiable.

Under section 3a (2) sentence 2 of the WpAV, which applies in addition to Commission Implementing Regulation (EU) 2016/1055 in this respect, the entity subject to the disclosure obligation is not responsible for system faults for which the media to which the information was transmitted are responsible.

Under section 3a (3) of the WpAV, which applies in addition to Commission Implementing Regulation (EU) 2016/1055 in this respect, the entity subject to the publication obligation must be able, for a period of six years, to notify BaFin of

• the person who transmitted the information to the media,
• the security measures used for transmission to the media,
• the date and time of transmission to the media,
• the medium used for transmission to the media and
• where applicable, all data relating to any delay in publication.

If the person subject to the disclosure obligation engages a third party to implement disclosure, that person remains responsible for fulfilling the disclosure obligation. The above obligations must then be fulfilled by the third party. It should be noted that the retention obligation also continues to apply if the engaged third party is no longer involved (e.g. because of insolvency or closure) or changes. If that third party no longer exists, responsibility reverts to the issuer.

Incomplete notifications must also be published, provided that no information prescribed as mandatory for the publication are missing. Publication of the transaction on the issuer’s website is not required.

It is sufficient to transmit the notification by fax alone. Provided that there are no justified doubts about the authenticity of a notification, notifications received by fax must be published without undue delay.

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