Insider list
The Insider List (formerly insider list ) is the securities law one of issuers run list over people , as insiders are, because they have insider information could or will.
General
This list is intended to include all persons who could be considered as possible insiders. The prohibited insider trading is to be made more difficult by the fact that the listed companies (issuers) have to identify all persons who have or could have insider knowledge. This includes certain employees and also contractors of the company ( notaries , lawyers , tax consultants , management consultants or auditors ), but also credit institutions if they act for the issuer in the context of an IPO , a corporate action or a company acquisition .
History of origin
Since the Investor Protection Improvement Act (AnSVG) came into force in October 2004, the more than 1,000 German issuers of financial instruments and persons acting on their behalf or for their account (see Section 15b WpHG old version) have been obliged to keep a so-called insider directory . Furthermore, there was a special duty to inform those included in the register about the legal obligations arising from access to inside information and about the legal consequences of violations. The section on the insider list, which was newly included in the Securities Trading Act at the same time, obliged the issuers to maintain an insider list in accordance with Section 15b (1) sentence 1 WpHG old version in conjunction with Section 14 WpAIV
- the heading "Insider directory according to § 15b WpHG",
- the name of the person obliged to keep the register,
- the name of the person assigned to guide and
- the date the directory was created and updated
also had to contain the following information about the persons to be admitted:
- First and last name,
- Date of birth,
- Place of birth,
- Business address,
- Private address,
- Reason for inclusion in the insider directory and
- the date since (or no longer) the person has had access to inside information.
The data had to be continuously updated and made accessible on request.
Legal issues
The insider list has replaced the previous insider directory since July 2016. Its legal basis is Art. 18 Market Abuse Ordinance (MMVO) and the Implementing Ordinance 2016/347 of March 10, 2016. According to Art. 18 MMVO, the insider list must contain detailed information on all persons who have access to inside information, if these persons are based on it an employment contract or otherwise perform tasks through which they have access to inside information, such as consultants ( tax consultants , management consultants ), accountants or rating agencies (Art. 18 Para. 1 lit. a MMVO). Those persons who are not obliged to act in the interests of the issuer, such as suppliers or customers of the company, are not to be included. Securities that are traded over the counter are exempt from this obligation.
With express reference to the MMVO is according to § 119 para. 3 WpHG with imprisonment up to five years or with fine punished , who is a violation of article. 14 MMVO insider trading makes this advisable third parties or those inciting to or disclose inside information. Pursuant to section 120 (2) no. 3 WpHG, the dissemination of certain information, contrary to Art. 15 MMVO in conjunction with Art. 12 MMVO, is punishable as an administrative offense with a fine .
content
The insider list differs from the previous tables of contents in terms of both layout and scope. Persons with managerial tasks as well as legal and natural persons related to them must be reported . Related persons are spouses, registered civil partners, dependent children and other relatives of the reportable management persons who have lived in the same household with the obligated party for at least one year, as well as legal persons, companies and other communities in which the aforementioned persons perform management tasks that directly or indirectly controlled by those persons who were established for the benefit of such a person or whose economic interests largely correspond to those of such a person.
According to Art. 18 Para. 3 MMVO, the insider list includes at least the identity of all persons who have access to inside information , the reason for inclusion in the insider list, the date on which this person gained access to inside information and the corresponding time and date the creation of the insider list.
The issuers keep the insider register in different ways, but always in electronic form . Responsibility for keeping the directory up-to-date normally rests with the legal department and, in some cases, with the investor relations department (more for smaller companies). Companies with their own compliance department (e.g. banks, financial service providers, insurance companies) keep the insider directory there.
purpose
The purpose of the insider lists is to make it easier for the banking supervisory authority BaFin to monitor insider trading , but also to enable law enforcement authorities such as public prosecutors to identify suspects . The insider list may not be published and must be kept in such a way that it is only accessible to those responsible for maintaining the register ( Section 16 WpAIV).
International
The MMVO applies in all EU member states . For the Swiss Federal Supreme Court (SBG) the fact of the profit warning does not constitute an offense of insider offense within the meaning of Art. 161 no. 3 StGB, unless the profit slump is such that the company concerned becomes a restructuring case. It determined that in practice, only information related to “changes in the internal and external structure” of the company, such as company divisions or majority takeovers, would count as confidential facts in the sense of insider facts.
Web links
Individual evidence
- ↑ Petra Buck-Heeb, Capital Market Law , 2009, p. 192
- ↑ Petra Buck-Heeb, Capital Market Law , 2009, p. 193
- ↑ Stephan Däschler, EU Market Abuse Regulation: Pillory or Duty , in: Kreditwesen, 2016, p. 438 f.
- ↑ BT-Drs. 15/3174 of May 24, 2004, draft law to improve investor protection , p. 36
- ↑ BT-Drs. 15/3174 of May 24, 2004, draft law to improve investor protection , p. 41
- ↑ SBG, judgment of April 15, 2002, Az .: 2A.567 / 2001
