Legal 500 Country Comparative Guides 2023 – Hoffmann Liebs exklusiv für Capital Markets Germany

1. Please briefly describe the regulatory framework and landscape of both equity and debt capital market in your jurisdiction, including the major regimes, regulators and authorities.

The legal basis for the German capital market is shaped to a very large extent by EU regulations. In this respect, there are now only a few specific manifestations of German capital market law. Instead, the legal framework is to a large extent uniform throughout the EU, which is very welcome. Securities are traded on stock exchanges and in multilateral trading systems. There are two main segments: the Regulated Market and the Open Market. The trading of securities on the Regulated Market is very comprehensively regulated by law. There are fewer legal requirements for trading in the Open Market, although some important regulations must be observed here as well. By far the most dominant stock exchange in Germany is the Frankfurt Stock Exchange. In addition, there are a number of regional exchanges, but at most they still have some importance in special segments.

As a rule, the publication of a securities prospectus is required for the public offering of securities – both shares and bonds. The securities prospectus is a very extensive document with high content requirements. Therefore, the effort required to draft such a securities prospectus is also relatively high. However, there are differences in the detailed content requirements depending on which securities are offered.

If securities are to be traded on the Regulated Market, they must be admitted to trading there. This decision on admission is made by the stock exchange. A securities prospectus is also required for admission. In addition, for admission to the Regulated Market, at least one bank must assume responsibility for the securities prospectus in addition to the issuer. This means that in these cases the cost of preparing the prospectus tends to be even higher. In Germany, shares are predominantly traded on the Regulated Market. This is less often the case for debt securities.

Within the Regulated Market, a distinction is made between the Regulated Market and the Prime Standard. In the Prime Standard, additional obligations apply to the issuer. However, these obligations do not exist by law, but on the basis of corresponding agreements between the issuer and the stock exchange. One major obligation for issuers in the Prime Standard is that they must also publish all their capital market communications in English. In general, however, the post-admission obligations in the Regulated Market are significantly more extensive than in the Open Market. However, one very important post-admission obligation that applies in all cases is the obligation to provide ad hoc publicity in accordance with MAR (for more details, see 3. below).

The most important authority for the German capital market is BaFin (Federal Financial Supervisory Authority). In particular, it is also responsible for the review and approval of securities prospectuses. BaFin must also review takeover bids and permit their publication.

In addition, the stock exchanges, and in this case the Frankfurt Stock Exchange, are of particular importance, for example in deciding on the admission of securities to trading on the Regulated Market.

2. Please briefly describe the common exemptions for securities offering without prospectus and/or regulatory registration in your market.

The possible exemptions from the prospectus requirement are also regulated in detail in the EU Prospectus Regulation and thus apply uniformly throughout the EU. The most significant exemptions are as follows:

• The public offer of securities is directed exclusively at institutional investors (i.e., so- called qualified investors),
• the public offering is directed to less than 150 non-qualified investors (i.e. it is a rather small and in any case limited issue),
• the securities offered have a minimum denomination of EUR 100,000.00 or each investor addressed must invest at least EUR 100,000.00,
• the securities are offered to the public for exchange in connection with a takeover.

In addition, there is also an exemption from the prospectus requirement for public offerings if the total volume of securities offered to the public does not exceed EUR 8 million. In such a case, however, a so- called securities information sheet must generally be published. The requirements for the content of the securities information sheet are significantly lower than those for a prospectus.

Exemptions from the prospectus requirement apply not only to a public offering of securities, but also to their admission to the Regulated Market. The most important exemptions in this respect are:

• less than 20% of the number of securities already admitted to the Regulated Market are admitted (this exception is particularly important for capital increases excluding subscription rights),
• the securities are to be newly admitted on the occasion of a takeover by way of an exchange offer and the public has already been provided with a document containing information on this exchange offer.

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