[Last updated: 1 January 2024, unless otherwise noted]

Listing on a regulated market

The listing requirements are primarily set forth in the Austrian Stock Exchange Act (Börsegesetz - BörseG). Further, in case of a public offering of securities in Austria and an admission of shares (as well as other securities) to the regulated market of the VSE, the EU Prospectus Regulation applies. The VSE provides for additional rules, including the "prime market Rules" (Regelwerk prime market), the "Rules for the Operation of the Vienna MTF" and the "direct market plus Rules" for companies having their shares listed on these market segments.

Both domestic and foreign issuers may list their shares on the VSE. The issuer must have been validly incorporated in accordance with the laws of its statutory seat, and its constitutive documents must comply with the laws of this jurisdiction. In principle, there are no jurisdictions of incorporation or industries that would not be acceptable for a listed company.

Neither Austrian law nor the rules of the VSE provide for particular financial requirements in terms of profits, revenues or cash flows to be met in order to obtain a listing. However, the admission to listing on the Official Market is decided on the basis of the documents presented and the existing volume of tradable shares. The VSE decides on the admission to the Official Market by issuing an official notice on application. The admission application must be submitted in writing by the issuer, must be co-signed by an exchange member of the VSE and must be accompanied, among other things, by a current excerpt from the Companies Register, the current articles of association or company by-laws, the company's compliance guidelines and an approved prospectus, drawn up in accordance with the EU Prospectus Regulation.

Admission requirements for the prime market segment and standard market segment (both Official Market) pursuant to the Austrian Stock Exchange Act include the following:

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In the case of a listing in the prime market segment of the VSE, the following additional criteria must also be met:

• The issuer has to maintain an inclusion in the VSE's continuous trading system for the entire duration of the listing. Auction trading of prime market shares is not possible.
• At least 25% of the common shares of the issuer listed on the VSE must be held by the free float and the capitalization of the free float has to amount to at least €20 million (approximately US$22.10 million). If the free float falls below 25% of the common shares, the free float requirement will be deemed to be fulfilled if the capitalization of the free float amounts to at least €40 million (approximately US$44.20 million). These thresholds are continuously adjusted corresponding to the development of the segment index (ATX Prime) but shall in any case not exceed €20 million (approximately US$22.10 million) and €40 million (approximately US$44.20 million).
• Other than the prospectus, disclosures must generally be made available in German and in English.

The admission criteria are the same for foreign companies. The main issues for foreign companies result from the practical application of the normal criteria for Austrian issuers. A key issue is typically the way the shares are kept into central custody for clearing and settlement. An alternative would be to use Austrian depositary certificates (ADCs) representing shares. The simplest way to list foreign issuers would be the creation of an Austrian listing vehicle and depositing the shares with Clearstream. An Austrian listing vehicle also allows foreign companies to have a corporate governance framework that is familiar to Austrian investors. Of course, tax issues and additional compliance costs should be taken into account.

There are no ownership requirements specifically applicable to a listing of a foreign company's shares in terms of nationality or size of individual shareholdings. However, the Investment Control Act (Investitionskontrollgesetz) provides for certain approval requirements for foreign non-EU/EEA investors (companies as well as natural persons) when acquiring significant shareholdings in certain Austrian listed and non-listed companies.

A foreign investment approval requirement applies if the Austrian target company is active in one of the "critical" sectors, as defined in the annex to the Investment Control Act, such as the energy, information technology, transport, health, finance, food or telecommunication sector. The list is not exhaustive, meaning that other sectors which are not mentioned in the annex may also fall within the definition of "critical sector". It should also be noted that the authorities generally define these sectors very broadly. The authorities' approval is required in the following cases:

• Acquisition of the Austrian target company as a whole;
• Acquisition of a specific share of voting rights (10% - if the Austrian target company is active in a particularly critical sector, in all critical sectors: 25% or 50%);
• Acquisition of a controlling interest ("decisive influence") in an Austrian target company; or
• Acquisition of material assets, whereby a determining influence on part of an undertaking is acquired.

The foreign investor requirement is met, if the (indirect or direct) acquirer, in the case of a legal entity, has its seat or headquarters outside the EU, the EEA or Switzerland or, in the case of a natural person, has no citizenship in the EU, the EEA or Switzerland. In addition, the Investment Control Act provides for an exemption for micro-enterprises, specifically, if the Austrian target has/had less than 10 employees and revenues or annual balance sheet totals of less than €2 million (approximately US$2.21 million) in the two previous financial years.

There are no ongoing financial requirements that must be met to maintain listing on the Official Market.

There are no corporate governance requirements for a foreign company in order to qualify to list its securities on the VSE. However, if the foreign company is listed via a listing vehicle in the form of an Austrian AG or an Austrian domiciled European Company (Societas Europeae – SE), the Austrian Corporate Governance Code applies. Further, any listing of shares in the prime market segment requires a declaration of commitment to comply with the Austrian Corporate Governance Code. If an issuer is subject to the company law of another EU or EEA Member State, the prime market rules provide for an obligation to comply with the applicable rules of corporate governance recognized in the respective jurisdiction. Issuers subject to company laws of non-EU and Non-EEA Member states have to submit a declaration of commitment to comply with the Austrian Corporate Governance Code and disclose it on their websites, along with explanations of any deviations therefrom.

There is no automatic requirement to have a sponsor in order to obtain a listing. However, in terms of trading the VSE introduced a specialist system in 1999, which was designed in part as a supplement to the market maker system by introducing an additional broker function (specialist) with the aim of increasing liquidity in the market. The task of the specialists is to place firm, competitive buy and sell quotes into the system along with the market makers and, with the help of additional measures, to enhance market liquidity, thereby supporting the market making and marketing of securities and products. Specialists and market makers are under the obligation to place binding buy and sell quotes during a certain period in continuous trading, which must comply with market makers' minimum size and maximum spread. In the prime market segment, at least one specialist is required and additional market makers are desirable. For continuous trading in the standard market segment at least one market maker has to be appointed, whereas for mid-market auction trading liquidity providers are desirable.

There is no requirement for any shares to be placed into escrow (or otherwise be restrained from trading, such as through "lock-in" or "lock-up" arrangements) in connection with a listing on the VSE. However, in order to avoid strong market reactions after public offerings the underwriters may ask for undertakings from existing shareholders not to sell their shares for a certain period of time and may also ask the issuer to agree not to issue further shares for a certain period of time.

There are no restrictions on the currency denomination of securities. However, share prices can only be quoted in Euro.

The securities to be listed or traded must be freely transferable. OeKB CSD GmbH acts as the Central Securities Depository (CSD) in Austria acts as depository for the securities of Austrian issuers on the VSE. In order to be able to deliver global certificates or physical securities for safekeeping in the CSD safe, a paying agent has to be appointed that also maintains a securities account with CSD. Ideally, the investment bank that accompanies the listing or the public offering also assumes the function of the paying agent.

An assignment of an ISIN (International Securities Identification Number) is required for the admission to listing on the VSE. The ISINs are assigned by Oesterreichische Kontrollbank AG - OeKB in its function as central ISIN body in Austria.

An issuer listed on the Official Market does not need any compliance adviser, whereas for the listing on the direct market plus segment, the issuer must appoint a Capital Market Coach (CMC). The CMC supports companies during the admission to listing or inclusion on the direct market plus in trading and is available for assistance afterwards as well. Investment and corporate finance service providers, accounting firms and attorneys-at-law may assume the function of a CMC. In the event certain tasks are delegated, the CMC is under the obligation to inform VSE to whom. After one year on the market, the support of the CMC is no longer mandatory. For issuers whose shares have already been listed on a regulated market for one year or are traded on another market with comparable quality standards such as the direct market plus segment, a CMC support is not required.

Secondary listings in principle follow the same rules as primary listings.

Inclusion in trading on the Vienna MTF

In addition to the possibility of admission to listing on the Official Market, shares may also be included in trading on the Vienna MTF. The inclusion of shares in trading on the Vienna MTF is governed by separate general terms of the VSE.

Trading in shares on the Vienna MTF does not require any formal admission procedures to exchange trading. The requirements of the Austrian Stock Exchange Act regarding financial instruments admitted to trading on a regulated market, in particular, the obligations imposed on issuers, do not apply to the financial instruments traded on the Vienna MTF.

For an inclusion in trading on the Vienna MTF, the legal status of the issuer and the issuance of the securities must comply with the laws of the country of the company's registered office or of whichever country the shares have been issued in.

The management board of the VSE decides on the inclusion in trading on the Vienna MTF. A written application of an exchange member, a credit institution, an investment firm, a law firm or of the issuer itself is a requirement. The application must be accompanied, among other things, by a current excerpt from the companies register or a certificate of incorporation (if any), the current articles of association, in the case of a public offering an approved prospectus pursuant to the EU Prospectus Regulation, the financial statements or an annual report.

Direct market plus segment

The direct market plus is a market segment of the VSE on which issuers that have signed agreements committing themselves to observe more stringent transparency, quality and disclosure obligations than those applicable under the "Rules for the Operation of the Vienna MTF" are traded. The direct market plus has been operated by Wiener Börse AG since 21 January 2019. The Rules for direct market plus apply in addition to the Stock Exchange Act and the "Rules for the Operation of the Vienna MTF". The statutory rules shall remain unaffected thereby.

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