Case C‑359/12

Michael Timmel

v

Aviso Zeta AG

(Request for a preliminary ruling from the Handelsgericht Wien)

‛Reference for a preliminary ruling — Consumer protection — Directive 2003/71/EC — Article 14(2)(b) — Regulation (EC) No 809/2004 — Articles 22(2) and 29(1) — Base prospectus — Supplements to the prospectus — Final terms — Time and method of publication of required information — Conditions for publication in electronic form’

Summary — Judgment of the Court (Second Chamber), 15 May 2014

Freedom of movement for persons — Freedom of establishment — Companies — Directive 2003/71 and Regulation No 809/2004 — Prospectus to be published when securities are offered to the public or admitted to trading — Publication in electronic form — Obligations to make the prospectus easily accessible and to make it available to the public — Scope

Freedom of movement for persons — Freedom of establishment — Companies — Directive 2003/71 and Regulation No 809/2004 — Prospectus to be published when securities are offered to the public or admitted to trading — Information to be stated in the base prospectus — Scope — Information having to be set out in the final terms of the offer — Included

Freedom of movement for persons — Freedom of establishment — Companies — Directive 2003/71 and Regulation No 809/2004 — Prospectus to be published when securities are offered to the public or admitted to trading — Information to be stated in the base prospectus — Information known only at the time of publication of a supplement to the base prospectus — Obligation to include it in the supplement — Conditions

Article 22(2) of Regulation No 809/2004 implementing Directive 2003/71 as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements is to be interpreted as meaning that information required under Article 22(1) which, although not known at the time of publication of the base prospectus, nevertheless was known at the time of publication of a supplement to that prospectus must be published in that supplement if the information involves a significant new factor, material mistake or inaccuracy capable of affecting the assessment of the securities, within the meaning of Article 16(1) of Directive 2003/71 on the prospectus to be published when securities are offered to the public or admitted to trading, a matter which is for the referring court to determine. (see para. 40, operative part 1)

The requirements of Article 22 of Regulation No 809/2004 implementing Directive 2003/71 as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements are not satisfied by the publication of a base prospectus not including the information required under Article 22(1), in particular the information referred to in Annex V to the regulation, if that publication is not supplemented by publication of the final terms. In order that the information which must be contained in the base prospectus in accordance with Article 22(1) of Regulation No 809/2004 may be inserted in the final terms, it is necessary for the base prospectus to indicate the information that will be included in those final terms and for that information to comply with the conditions laid down in Article 22(4) of the regulation. (see para. 49, operative part 2)