Prospectus liability

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Prospectus liability means that the issuer of a security , an investment within the meaning of the Asset Management Act or an issue that is subject to a prospectus according to the Capital Investment Code and, if applicable, the consortium are liable for any damage incurred if the issue prospectus of a security or a closed fund provides false or misleading information to the detriment of buyers of the Contains new issue . In Germany, this was regulated in the Stock Exchange Act and in the sales prospectus. In the meantime, the special statutory prospectus liability, which is to be distinguished from general civil-law prospectus liability, is anchored in the Asset Investment Act and in the Securities Prospectus Act. While the preparation of prospectuses and the approval of prospectuses by the supervisory authorities are fully harmonized under Union law, the liability regime under civil law is still largely regulated by national law. The following statements primarily take into account the German legal situation.

Liability for prospectuses under German law

The purpose of the prospectus is to provide investors in the capital market with all the information about the issuer of securities that they need to make an accurate judgment about the issuer and the securities. To ensure this, the legislature created, in addition to regulations on fines, the prospectus liability, by virtue of which those who publish a prospectus or are otherwise responsible are liable for incomplete or incorrect information. This prospectus liability extends over several laws. The scope of the prospectus liability has been designed very broad: Founders, initiators, backers, the other guarantors of the prospectus, possibly also trustees, but not the advisory board members.

Securities Prospectus Act

The Securities Prospectus Act contains prospectus liability. Its scope of application is opened in accordance with Section 1 (1) WpPG for prospectuses that serve the public offer of securities or their admission to an organized market . For the latter prospectuses, Section 9 WpPG contains a claim for damages. This assumes that the sales prospectus does not meet the requirements of § 5 , § 7 WpPG in that it is incorrect or incomplete. The subject of these errors can be assertions of fact as well as value judgments and prognoses. A prospectus is incorrect, for example, if it describes a circumstance incorrectly or if it gives an incorrect impression through ambiguous and euphemistic statements. It is incomplete if it does not provide information about a circumstance that is important for the investor's decision-making. The prospectus may also be incomplete after the prospectus has been published if an important circumstance subsequently changes or occurs. In order to avoid this, § 16 WpPG obliges to mention such circumstances in the form of prospectus supplements. The standard for assessing the defectiveness is the expectation horizon of the general prospectus reader. The case law regards an average investor as such, who can read a balance sheet but has no further specialist knowledge. However, if the prospectus is expressly aimed at inexperienced investors, those responsible for the prospectus cannot expect them to have knowledge of the capital market.

According to Section 21 Paragraph 1 Clause 1 WpPG, liability relates to those who created the prospectus and to those who are otherwise responsible for it. This applies, for example, to the issuer, participating banks or parent companies. Anyone who purchases a security within six months of the publication of the prospectus is entitled to compensation. According to Section 21 (3) WpPG, this liability is limited to securities that are acquired in Germany or as part of a domestic securities service. Liability also requires that the defectiveness of the prospectus is the cause of the purchase of the security. According to Section 23 (2) No. 1 WpPG, this causality is presumed in favor of the investor, as the legislature feared that the investor would usually not be able to prove the causality. On the basis of the presumption, the claimant must prove that the investor did not acquire the securities on the basis of the prospectus. Finally, the claim presupposes that the claimant is to blame for the defectiveness of the prospectus. According to Section 23 (1) WpPG, this is the case if he has acted willfully or with gross negligence . The requirements that are placed on those responsible for the prospectus depend on how close they were to the company that publishes the data on which the prospectus is based. In order to avoid the accusation of gross negligence, the banks accompanying the issuing process in particular often carry out a due diligence check on the issuer.

If the prerequisites of § 21 WpPG are met, the person claimed is obliged to repurchase the securities from the investor against reimbursement of the purchase price, provided this does not exceed the first issue price of the securities. Furthermore, the claimant can demand reimbursement of the usual costs associated with the acquisition. If the acquirer is no longer the owner of the securities, he can demand payment of the difference between the acquisition price, provided that this does not exceed the first issue price, and the sale price of the securities in accordance with Section 21 (2) WpPG.

According to the general statute of limitations § 195 and § 199 BGB, the claim expires within three years.

Section 22 WpPG extends prospectus liability under certain circumstances to prospectuses that do not serve for listing on the stock exchange. According to Section 24 WpPG, there is also a claim in the absence of the prospectus.

Asset Investment Act

Another prospectus liability has been included in the Asset Investment Act (VermAnlG) since June 1, 2012. This law replaced the Sales Prospectus Act that came into force on July 1, 2005 . The scope of application of the Asset Investments Act is opened according to Section 1 (2) VermAnlG if the prospectus relates to assets that are not securitized in securities. Liability is regulated in Section 20 and Section 21 of the VermAnlG and, in principle, designed in parallel to liability under the WpPG. Eligibility is anyone who acquires an investment within two years after it was first offered to the public in Germany.

German Capital Investment Code

Another fact of prospectus liability is contained in Section 306 of the Capital Investment Code (KAGB). This standard covers prospectuses that are created for fund products. Liability assumes that a sales prospectus is incorrect or incomplete with regard to essential information. In contrast to liability under the WpPG and the VermAnlG, the investor must prove that he has invested in the investment due to the inaccuracy of the prospectus. The claim is directed against the asset management company, commercial sellers of the product and commercial sales intermediaries.

Civil Code

When there was no prospectus liability in the gray capital market , the jurisprudence recognized a loophole in this regulation, which it filled by means of further legal training through general prospectus liability in accordance with the rules of the German Civil Code . Since the legislature created new laws in these areas, which stipulate almost comprehensive prospectus liability, the importance of liability under the BGB has decreased. It is currently used in matters that are either not covered by the new regulations or that are to be assessed according to a legal status prior to the special statutory prospectus liability.

A distinction is made between two forms of civil law prospectus liability, one in the broader sense and one in the narrower sense. Both forms are based on the culpa in contrahendo regulated in § 311 BGB . Prospectus liability in the narrower sense allows claims against those responsible for the prospectus if the investor suffers damage as a result of the prospectus being incorrect. This inaccuracy leads to liability in accordance with Section 311 (2) of the German Civil Code (BGB), since the investor typically relies on the proper preparation of the prospectus as the central source of information. This form of prospectus liability is superseded by the statutory prospectus liability. On the other hand, prospectus liability is not suppressed in the broader sense. This is a liability for the use of special trust in the context of contract negotiations.

The Investor Protection Improvement Act (AnSVG) has largely removed the basis of the previous area of ​​application of general civil law rules . With the AnSVG, the regulations of the Sales Prospectus Act were expanded to include the gray capital market.

Brochure error

The prospectus must give an accurate picture of the investment offered. According to the case law of the Federal Court of Justice, this includes that all circumstances that may be of importance for the participation decision are presented correctly and completely. A prospectus is not only objectionable if it provides incorrect or incomplete information. It is also incorrect if it contains misleading representations. Even evaluative statements must have a comprehensible background in order not to be vulnerable. In addition to these criteria, the overall impression of the prospectus plays a role; Overall, it must not give the investor an incorrect overall impression of the opportunities and risks of the investment.

Liability for prospectuses in franchise agreements

In addition to the prospectus liability as investor protection, if certain principles exist, the prospectus liability can also apply to franchise contracts (also in negotiations prior to the conclusion of the contract in accordance with the obligation under Section 241 (2) BGB). It protects the franchisee from incorrect information provided by the franchisor, especially in his location analysis and profitability plan of the franchise system. In this case, the principles for prospectus liability of the capital market are applied analogously.

Legal situation in other states

Switzerland

Cf. Art. 156 of the Swiss PILA regarding claims from the public issue of equity securities and bonds: "Claims from the public issue of equity securities and bonds based on prospectuses, circulars and similar announcements can be asserted under the law applicable to the company or under the law of the state can be made in which the output occurred.

literature

  • Jochen Lüdicke, Jan-Holger Arndt: Closed funds. 4th edition, Beck, Munich 2007, Part V., ISBN 978-3-406-53795-0 .
  • Jan-Holger Arndt, Thorsten Voß: Sales Prospectus Act. Beck, Munich 2008, § 13 ff., ISBN 978-3-406-56566-3 .
  • Eckhard Flohr: Franchise Agreement. 3rd edition, Beck, Munich 2006, ISBN 3-406-54684-6 .
  • Jürgen Hilp: On liability when brokering closed funds - an analysis from an economic and legal perspective. Kassel, 2010, ISBN 978-3-00-031671-5 .

Individual evidence

  1. ^ Petra Buck-Heeb: Capital Market Law . 8th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4247-4 , Rn. 166.
  2. ^ Katja Langenbucher: Stock corporation and capital market law . 3. Edition. CH Beck, Munich 2015, ISBN 978-3-406-66738-1 , § 14, Rn. 1.
  3. ↑ Barbara Grunewald, Michael Schlitt: Introduction to Capital Market Law . 3. Edition. CH Beck, Munich 2013, ISBN 978-3-406-65413-8 , pp. 213 .
  4. ^ A b Barbara Grunewald, Michael Schlitt: Introduction to Capital Market Law . 3. Edition. CH Beck, Munich 2013, ISBN 978-3-406-65413-8 , pp. 237 .
  5. ^ BGH, judgment of July 12, 1982, II ZR 175/81 = Neue Juristische Wochenschrift 1982, p. 2823.
  6. ^ Katja Langenbucher: Stock corporation and capital market law . 3. Edition. CH Beck, Munich 2015, ISBN 978-3-406-66738-1 , § 14, Rn. 39.
  7. ^ BGH, judgment of July 12, 1982, II ZR 175/81 = Neue Juristische Wochenschrift 1982, p. 2823.
  8. ↑ BGH, September 18, 2012, XI ZR 344/11 = Neue Juristische Wochenschrift 2013, p. 539.
  9. ^ Katja Langenbucher: Stock corporation and capital market law . 3. Edition. CH Beck, Munich 2015, ISBN 978-3-406-66738-1 , § 14, Rn. 52-53.
  10. ^ Petra Buck-Heeb: Capital Market Law . 8th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4247-4 , Rn. 223.
  11. ↑ BT-Drs. 13/8933 , p. 76.
  12. ↑ Barbara Grunewald, Michael Schlitt: Introduction to Capital Market Law . 3. Edition. CH Beck, Munich 2013, ISBN 978-3-406-65413-8 , pp. 249-250 .
  13. ^ Petra Buck-Heeb: Capital Market Law . 8th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-4247-4 , Rn. 228
  14. ^ Katja Langenbucher: Stock corporation and capital market law . 3. Edition. CH Beck, Munich 2015, ISBN 978-3-406-66738-1 , § 14, Rn. 76.
  15. ↑ Maximilian Becker: § 311 , Rn. 200. In: Barbara Dauner-Lieb, Werner Langen, Gerhard Ring (ed.): Nomos Commentary BGB: Law of Obligations . 3. Edition. Nomos Verlag, Baden-Baden 2016, ISBN 978-3-8487-1102-4 .
  16. ↑ BGHZ 74, 103 .
  17. ↑ BGHZ 123, 106 .
  18. ^ Katja Langenbucher: Stock corporation and capital market law . 3. Edition. CH Beck, Munich 2015, ISBN 978-3-406-66738-1 , § 14, Rn. 82.
  19. ^ Katja Langenbucher: Stock corporation and capital market law . 3. Edition. CH Beck, Munich 2015, ISBN 978-3-406-66738-1 , § 14, Rn. 82.
  20. ^ Christian Grüneberg: § 311 , Rn. 68. In: Otto Palandt (Hrsg.): Bürgerliches Gesetzbuch . 74th edition. CH Beck, Munich 2015, ISBN 978-3-406-67000-8 .
  21. ↑ Federal Court of Justice of June 14, 2007, III ZR 300/05 .
  22. ↑ Federal Court of Justice of July 12, 1982, Az. II ZR 175/81.
  23. ↑ Switzerland