The Austrian Financial Market Authority (FMA) had published an “investor warning” at the expense of a company and claimed that this had violated certain reporting obligations.
The company concerned was able to get the FMA out of court to delete the report.
“Dunning” and “Warning” as a business model
We know from our legal advisory practice that innovative and new business models are often wrongly targeted by more or less serious journalists or other “warning people” with their own dubious interests.
Sometimes these dubious actors even manage to feed the responsible supervisory authorities, such as the Federal Financial Supervisory Authority (BaFin) or – as here – the Austrian Financial Market Authority (FMA) with inaccurate information and thus induce them to take illegal measures or reports.
We reported here about the successful judicial claim against BaFin because of the illegal report that was subsequently published:
FMA Austria published warning
In addition to BaFin, the FMA Austria also publicly stated on its website that the company in question had not complied with the reporting requirement for the issuing calendar in accordance with Section 24 KMG 2019 in connection with the “coin bonds” offered in Austria. However, the FMA had no legal basis for this. Nor had she previously been a member of the company, as she was obliged to do.
The report, inconspicuous at first glance, was grist to the mill of the above-mentioned “critics”, whose perfidious plan thus worked. They could use the report as a hook for further high-click “reporting”: they had always been warned about this. So now the FMA too!
FMA deletes notification of LHR intervention
However, the company concerned was able to convince the FMA, without involving (Austrian) courts, that the submissions were unfounded. The authority then deleted the message.
In addition to the injunctive relief claims, there are claims for damages, the amount of which the company cannot yet determine exactly, but which will be substantial due to the seriousness of the allegations. The “specialist journalist” responsible for the false report will have to face the consequences.
Lawyer Arno Lampmann from LHR:
As an authority, the FMA Austria is also bound by law. She may only do what she is explicitly allowed to do by law. It is gratifying that the FMA in Austria immediately removed the report and did not allow for a legal dispute after it could be shown that the submissions were unfounded. That should actually be a matter of course in a constitutional state. It is worth mentioning, however, since the BaFin, for example, must regularly be forced to delete it by a court.
(Disclosure: LHR represented the applicant)
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