Kevin SchmidtAd-hoc-Publizität und Wissenszurechnung

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The Volkswagen emissions affair raised the question of the point in time at which an issuer of financial instruments is obligated to disclose insider information that directly concerns it, in terms of the obligation of ad hoc disclosure under Section 15 of the German Securities Trading Act (WpHG), old version, and Article 17 of Market Abuse Regulation (MAR), which is governed by European law. This is a legitimate question, as management and supervisory bodies generally like to plead ignorance of the existence of insider information. Following on from this, it was necessary to clarify whether the obligation to provide ad hoc disclosure only applies once the issuer is aware of the information and, if so, how the knowledge of certain persons within the issuer's own company and within the group is to be attributed to the issuer with regard to Art. 17 (1) MAR. In this respect, there is a tension between fully harmonizing EU law and well-known principles of knowledge attribution in German law.

This dissertation first examines the question of whether § 15 WpHG (old version) or Art. 17 (1) MAR contain a subjective element and comes to the conclusion that such an element can be derived autonomously from the attribute of "Possibility" of the disclosure obligation under Art. 17 (1) MAR. Based on this, the applicability of the German principles of attribution of knowledge in the context of Art. 17 (1) MAR was examined. A systematic examination of the individual attribution constellations within a company is carried out, in which, in principle, the attribution of knowledge of management and supervisory bodies or of employees is possible. Furthermore, the question of knowledge attribution under capital market law also arises in complex group situations, which also has to be considered. The study also takes into account the possible limits of knowledge attribution arising from national law and places them in a contextual relationship to European market abuse law.

Ihr Werk im Verlag Dr. Kovač

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