# C_2012366EN.01002202.xml

| 24.11.2012 | EN | Official Journal of the European Union | C 366/22 |
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24.11.2012

EN

Official Journal of the European Union

C 366/22

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Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 30 July 2012 — Dr. Michael Timmel v Aviso Zeta AG

(Case C-359/12)

2012/C 366/39

Language of the case: German

Referring court

Referring court

Handelsgericht Wien

Parties to the main proceedings

Parties to the main proceedings

Applicant: Dr. Michael Timmel

Applicant:

Intervener in support of the applicant: Lore Tinhofer

Intervener in support of the applicant:

Defendant: Aviso Zeta AG

Defendant:

Questions referred

Questions referred

| 1. | Is Article 22(2) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) (1) to be interpreted as meaning that information that is in principle mandatory which was not yet known at the time of approval of the base prospectus but was already known at the time of publication of a supplement to the prospectus is to be included in the supplement to the prospectus? |
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1.

Is Article 22(2) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) (1) to be interpreted as meaning that information that is in principle mandatory which was not yet known at the time of approval of the base prospectus but was already known at the time of publication of a supplement to the prospectus is to be included in the supplement to the prospectus?

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| 2. | Is the derogation in Article 22(2) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’), according to which the inclusion of the information items within the meaning of the third sentence of Article 22(1) may be omitted, applicable even if that (mandatory) information was known before the issue date but after publication of the base prospectus in which that information was not included? |
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2.

Is the derogation in Article 22(2) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’), according to which the inclusion of the information items within the meaning of the third sentence of Article 22(1) may be omitted, applicable even if that (mandatory) information was known before the issue date but after publication of the base prospectus in which that information was not included?

| 3. | Is it possible to speak of lawful publication if only a base prospectus without the mandatory information under the third sentence of Article 22(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) and in particular under Annex 5 (as regards securities with denomination per unit of less than EUR 50 000) was published and if the final terms were not subsequently published? |
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3.

Is it possible to speak of lawful publication if only a base prospectus without the mandatory information under the third sentence of Article 22(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) and in particular under Annex 5 (as regards securities with denomination per unit of less than EUR 50 000) was published and if the final terms were not subsequently published?

| 4. | Is the requirement laid down in Article 29(1)(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) that the prospectus or the base prospectus must be easily accessible on the web-site, where these are made available, fulfilled:






  (a) | if accessing, downloading as well as printing, require registration on the website on which access may subsequently take place, whereby registration requires acceptance of a disclaimer and communication of an e-mail address, or |
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4.

Is the requirement laid down in Article 29(1)(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation (EC) No 809/2004’) that the prospectus or the base prospectus must be easily accessible on the web-site, where these are made available, fulfilled:

(a)

if accessing, downloading as well as printing, require registration on the website on which access may subsequently take place, whereby registration requires acceptance of a disclaimer and communication of an e-mail address, or

| (b) | if it is necessary to make a payment for that, or |
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(b)

if it is necessary to make a payment for that, or

| (c) | if free of charge access to parts of a prospectus is restricted to two documents per month, but it is necessary to download at least three documents in order to obtain all the required information within the meaning of the third paragraph of Article 22(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation No 809/2004’)? |
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(c)

if free of charge access to parts of a prospectus is restricted to two documents per month, but it is necessary to download at least three documents in order to obtain all the required information within the meaning of the third paragraph of Article 22(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (‘Regulation No 809/2004’)?

| 5. | Is Article 14(2)(b) of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (‘Directive 2003/71/EC’) (2) to be interpreted as meaning that the base prospectus must be made available at the registered office of the issuer and at the offices of the financial intermediaries? |
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5.

Is Article 14(2)(b) of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (‘Directive 2003/71/EC’) (2) to be interpreted as meaning that the base prospectus must be made available at the registered office of the issuer and at the offices of the financial intermediaries?

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(1)  OJ 2004 L 149, p. 1.

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(2)  OJ 2003 L 345, p. 64.

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