# C_2021417EN.01002301.xml

| 14.10.2021 | EN | Official Journal of the European Union | C 417/23 |
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14.10.2021

EN

Official Journal of the European Union

C 417/23

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JUDGMENT OF THE COURT

of 18 June 2021

in Case E-10/20

ADCADA Immobilien AG PCC in Konkurs v the Financial Market Authority (Finanzmarktaufsicht)

(Regulation (EU) 2017/1129 – Investor protection – Notion of an ‘offer of securities to the public’ – Disclosure of information – Obligation to publish a prospectus – Exemptions)

(2021/C 417/04)

In Case E-10/20, ADCADA Immobilien AG PCC in Konkurs v the Financial Market Authority (Finanzmarktaufsicht) – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Board of Appeal of the Financial Market Authority (Beschwerdekommission der Finanzmarktaufsicht) concerning the interpretation of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC, in particular point (b) of Article 1(4) and point (d) of Article 2 thereof, the Court, composed of Páll Hreinsson, President (Judge-Rapporteur), Per Christiansen and Bernd Hammermann, Judges, gave judgment on 18 June 2021, the operative part of which is as follows:

| 1. | Whether sufficient information is presented on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase and subscribe for those securities in accordance with point (d) of Article 2 of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, must be assessed on a case-by-case basis.
  In circumstances such as those in the main proceedings, subject to verification by the referring body, there is an ‘offer of securities to the public’ within the meaning of point (d) of Article 2 of Regulation (EU) 2017/1129. |
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1.

Whether sufficient information is presented on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase and subscribe for those securities in accordance with point (d) of Article 2 of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, must be assessed on a case-by-case basis.

In circumstances such as those in the main proceedings, subject to verification by the referring body, there is an ‘offer of securities to the public’ within the meaning of point (d) of Article 2 of Regulation (EU) 2017/1129.

| 2. | It may be relevant to an assessment of whether there is an ‘offer of securities to the public’ within the meaning of point (d) of Article 2 of Regulation (EU) 2017/1129 that a communication includes certain clearly visible indications stating that further information may be obtained elsewhere, and the full bond terms are not accessible online or otherwise generally available. However, if a communication already presents sufficient information for the purposes of point (d) of Article 2, the inclusion of such statements or the fact that the full bond terms are not accessible online or otherwise generally available will not be capable of altering its qualification as an ‘offer of securities to the public’. |
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2.

It may be relevant to an assessment of whether there is an ‘offer of securities to the public’ within the meaning of point (d) of Article 2 of Regulation (EU) 2017/1129 that a communication includes certain clearly visible indications stating that further information may be obtained elsewhere, and the full bond terms are not accessible online or otherwise generally available. However, if a communication already presents sufficient information for the purposes of point (d) of Article 2, the inclusion of such statements or the fact that the full bond terms are not accessible online or otherwise generally available will not be capable of altering its qualification as an ‘offer of securities to the public’.

| 3. | It is, in principle, significant for the purposes of point (b) of Article 1(4) of Regulation (EU) 2017/1129 that an offer of securities is communicated to prospective buyers only upon request, whilst at the same time it is ensured that the communication is made only to a maximum of 149 natural or legal persons per EEA State, which are not qualified investors. However, in order to rely on the exemption in point (b) of Article 1(4), the offer of securities must actually be addressed to fewer than 150 natural or legal persons per EEA State, other than qualified investors. The limit set out in that provision cannot be circumvented by disseminating the offer in an EEA State through various media. |
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3.

It is, in principle, significant for the purposes of point (b) of Article 1(4) of Regulation (EU) 2017/1129 that an offer of securities is communicated to prospective buyers only upon request, whilst at the same time it is ensured that the communication is made only to a maximum of 149 natural or legal persons per EEA State, which are not qualified investors. However, in order to rely on the exemption in point (b) of Article 1(4), the offer of securities must actually be addressed to fewer than 150 natural or legal persons per EEA State, other than qualified investors. The limit set out in that provision cannot be circumvented by disseminating the offer in an EEA State through various media.

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