Research report 2004 - Max Planck Institute for Comparative and International Private Law
Prospectus and information liability in the EC, Switzerland and the United States
Hopt, Klaus J.; Voigt, Hans-Christoph
Privat-, Handels- und Wirtschaftsrecht
MPI für ausländ. und internat. Privatrecht, Hamburg
SummaryOn 31 December 2003 the new Directive on the prospectus to be published when securities are offered to the public or admitted to trading entered into force. The Directive regroups the provisions that stem from Directive 80/390/EEC coordinating the requirements for the drawing up, scrutiny and distribution of the listing particulars to be published for the admission of securities to official stock exchange listing and 89/298/EEC coordinating the requirements for the drawing up, scrutiny and distribution of the prospectus to be published when transferable securities are offered to the public. One of its objectives is to protect investors by providing full information concerning securities and issuers of those securities, enabling them to make an informed assessment of the involved risks. But the Directive does not constitute "de minimis" rules on civil liability in case such relevant information is incorrect or missing. Therefore, it is up to the Member States to ensure that their laws, regulation and administrative provisions on civil liability apply to those persons responsible for the information given in a prospectus. This leads to a great variety of different liability regimes restricting the issuers/offerors access to investment capital on a Community-wide basis. The comparative study mandated by the German Federal Ministry of Finance analyzes the provisions regarding civil liability in the different legal systems, trying to show common principles for future harmonisation.