Official Journal of the European Union

C 212/5

(Case C-359/12)(1)

((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))

2014/C 212/05

Language of the case: German

Referring court

Parties to the main proceedings

Applicant: Michael Timmel

Defendant: Aviso Zeta AG

Intervener: Lore Tinhofer

Re:

Request for a preliminary ruling — Handelsgericht Wien — Interpretation of 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 (OJ 2003 L 345, p. 64) — Interpretation of Article 22(2) and Article 29(1)(1) of Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements (OJ 2004 L 149, p. 1) — Publication of information not known at the time of approval of the base prospectus — Scope of the obligation make the prospectus available to the public in a printed form — Conditions for publication of the prospectus in an electronic form — Public limited company having included in a prospectus entitled ‘final terms’ information which was not known at the time of approval of the base prospectus — Lack of lawful publication — Access to that prospectus subject to a registration procedure and costs

Operative part of the judgment

1.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 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/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, a matter which is for the referring court to determine.

2.The requirements of Article 22 of Regulation No 809/2004 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.

3.Article 29(1)(1) of Regulation No 809/2004 is to be interpreted as meaning that the requirement that a prospectus must be easily accessible on the website on which it is made available to the public is not fulfilled where there is an obligation to register on that website, entailing acceptance of a disclaimer and the obligation to provide an email address, where a charge is made for that electronic access or where consultation of parts of the prospectus free of charge is restricted to two documents per month.

4.Article 14(2)(b) of Directive 2003/71 is to be interpreted as requiring the base prospectus to be made available to the public both at the registered office of the issuer and at the offices of the financial intermediaries.

(1) OJ C 366, 24.11.2012.