In principle, a public offering of transferable securities may only be made on the basis of a securities prospectus approved by the local regulator.
However, since Liechtenstein has only about 38,000 inhabitants, Liechtenstein is often not the only target market for many issues.
For this reason, we provide below a brief overview of the possibilities of a public offering outside Liechtenstein with a securities prospectus approved by the Financial Market Authority Liechtenstein (FMA).
- Passporting within the EU/EEA
Due to the harmonised prospectus law in the EU/EEA, it is possible to use a securities prospectus (approved by the FMA) also in other EU/EEA states for a public offer or the admission of securities to trading on a regulated market.
For this purpose, the prospectus approval authority (in Liechtenstein the FMA) certifies the approval to other European supervisory authorities (for example the BaFin for Germany).
For this purpose, the FMA transmits the required documents to the competent authorities of the host member states and to the European Securities and Markets Authority (ESMA) within one working day of receipt of the application or approval.
Due to such a so-called "notification procedure", it is possible to offer securities to the public and/or admit them to trading on a regulated market in several EU/EEA states without having to go through an additional prospectus approval procedure in each case.
- Passporting to a third country
Since the above described regulations of the EU Prospectus Regulation only apply within the EU/EEA, they are not available for third countries.
A possible passporting / recognition procedure of the prospectus is therefore governed by the national law of the state in which the public offer is to be made.
- Passporting to the United Kingdom
As the UK has decided to withdraw from both the EU and the EEA, it has become a third country.
Therefore, the notification procedure under the EU Prospectus Regulation is no longer available for a public offer in the UK. Instead, this is now governed by the purely national law of the United Kingdom.
- Passporting to Switzerland
Switzerland is also a third country and, therefore, cannot make use of the notification procedure under the EU Prospectus Regulation.
However, Swiss prospectus law was fundamentally renewed at the beginning of 2020 with the introduction of the Financial Services Act (FIDLEG) and strongly aligned with international standards, in particular EU/EEA prospectus law.
As a result of these amendments, securities for which an approved prospectus from a recognized jurisdiction is available may benefit from simplified prospectus approval in Switzerland. We would be happy to clarify with our Swiss colleagues whether your prospectus approved by the FMA meets these requirements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
