Prospectus regulation and “public offer” - new BaFin Guidance

1. Introduction

On 11 September 2025, the German Federal Financial Supervisory Authority (“BaFin”) published new guidance clarifying its administrative practice on the interpretation of the term “public offer” under the Prospectus Regulation (Regulation (EU) 2017/1129, “ProspR”).

The guidance reflects recent developments in European and EFTA case law, in particular the judgment of the European Court of Justice (ECJ) of 9 January 2025 – Case C-627/23 (Schaerbeek, Linkebeek v. Holding Communal SA).

BaFin places strong emphasis on a broad interpretation of the concept of a “public offer,” thereby moving away from the previously discussed notion of a “limited or sector-specific public.”

The key points of the guidance are summarised below.

2. Definition of a Public Offer

According to Article 2(d) ProspR, a public offer means “a communication to the public in any form and by any means” that “contains sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe for those securities.”

This definition also applies to placements carried out by financial intermediaries.

3. Form and Medium of Communication (“How?”)

BaFin clarifies that the medium used for communication is irrelevant. All forms of marketing and communication are covered, including “personal meetings, telephone calls (cold callings), events, postal mailings, online communications, newspapers, television, radio or streaming services.”

Importantly, BaFin confirms that no binding offer within the meaning of Section 145 of the German Civil Code (BGB) is required. An invitation to make an offer (invitatio ad offerendum) is sufficient. The decisive factor is the investor’s ability to make an informed decision, not the civil-law binding nature of the communication.

4. Information Content (“What?”)

A public offer requires a minimum level of information, such as details on the subscription procedure, investment amount, maturity and interest range.

Following the EFTA Court’s decision in ADCADA v. FMA (Liechtenstein) (Case E-10/20, paras. 35, 39), it is sufficient if an investor is able to make an investment decision on that basis – full contractual documentation is not required.
BaFin further clarifies that no concrete acquisition possibility is necessary for an offer to be considered “public.” It is enough that an investor can form an adequately complete picture of the offer.

As a result, pre-marketing communications may already qualify as public offers if the investor reasonably assumes that acquisition is possible. This represents a clear shift from earlier, more restrictive interpretations found in the literature, which required a concrete possibility of acquisition.

5. Responsibility (“By Whom?”)

BaFin highlights that the offeror and the actual seller need not be identical. Multiple parties may jointly qualify as offerors if, taken together, they contribute to a public offer.

Accordingly, coordinated or structured, division-of-labour arrangements (“collusive cooperation”) may result in joint regulatory responsibility of all involved parties.

Both offerors and financial intermediaries must therefore assess their respective roles in relation to a public offer and the supervisory implications arising from their cooperation.

6. Target Audience (“To Whom?”)

BaFin also draws attention to an inaccurate translation of the definition of “communication to the public” in the German version of the Prospectus Regulation. Based on the English text, the decisive element is “communication to persons in any form and by any means.”

The guidance explicitly states that a personal relationship between offeror and investor does not exclude publicity. Similarly, the concept of a “private placement” cannot serve as a valid delineation criterion, as it is not defined in the Prospectus Regulation.

BaFin thereby confirms that the 1999 notice by the former Federal Supervisory Office for Securities Trading (BAWe), according to which a “limited circle of persons” did not constitute a public offer, is no longer applicable.

A public offer already exists if the communication is directed at two or more persons. Consequently, the default assumption is that an offer is public. Section 1(4) ProspR merely lists scenarios in which, despite the existence of a public offer, there is no obligation to publish a prospectus. In this regard, it should also be noted that, despite the exemption from the prospectus requirement, other provisions of the Prospectus Regulation, such as the rules on advertising under Article 22 of the Prospectus Regulation, continue to apply.

7. Temporal Aspect (“When?”)

The offer begins once the minimum information about the securities is available to potential investors and ends when the securities can no longer be acquired. The same principles apply to secondary market offers.

This, too, broadens prior practice: it is sufficient that the constituent elements of the offer, viewed in their entirety, form a single coherent process.

8. Conclusion

BaFin’s new guidance represents a clear Europeanisation and expansion of the concept of a public offer.

Where previous German administrative practice relied on formal and will-based criteria, the new approach focuses on the functional objectives of the Prospectus Regulation – namely investor protection, market efficiency and transparency.

Key takeaways include:

• Broad interpretation of “communication in any form,” irrespective of the communication channel;
• Elimination of the requirement for a concrete acquisition possibility;
• Collective attribution of the offeror role in cases of joint or coordinated activity;
• Clarification of the concept of a public offer as the general rule and the exceptions to the prospectus requirement.