BaFin, the German federal financial supervisory authority, now allows firms that issue prospecti to use English during the approval process, to the extent that the law permits.

All issuers who submit their securities prospecti to BaFin in English while indicating their intention to conduct the process bilingually can benefit from the new rule. They should notify BaFin of their intention as early as possible during the process, preferably before they apply.

Applications and notifications to BaFin

German is the official language. Because of this, all applications and notifications associated with the approval process for securities prospectuses must continue to be submitted to BaFin in German. To streamline the process, however, BaFin now provides bilingual forms on its website for the approval and notification application, the submission of the final offer price and/or offer volume, and the notification of publication. The forms contain all the information necessary for the approval process.

By law, BaFin cannot provide bilingual forms for any other types of application, e.g. for applications on non-inclusion of information in accordance with s8(2) Securities Prospectus Act (Wertpapierprospektgesetz or WpPG - only available in German) and on permission for English as the language of the prospectus in accordance with s19(1) sentence 2. As a result, these applications must continue to be submitted in German.

Communication and documents

English can be used as the exclusive language for all oral and written communication prior to the approval process. This applies, for instance, to the co-ordination of timing and to questions about pro forma and historical financial information.

All documents associated with the process can also be submitted to BaFin in English. These include powers of attorney, the appointment of an authorised agent in accordance with s34 WpPG, cross-reference lists and implementation lists. English can also be used to communicate with the competent BaFin employees during the process, for instance if there is uncertainty about individual points in the consultation.

Letters from BaFin to issuers

To reduce the translation effort for issuers, from now on BaFin is including English translations with its standard letters. These are not, however, legally binding.

Legal deadlines for review prevent BaFin from providing a translation of the notice of hearing (Anhörungsschreiben), which is the core component of the approval process. This will continue to be sent to issuers or their legal representatives in German only.

Right to ask for a translation

BaFin reserves the right to request German translations of all or selected English documents, and/or to ask the firm in question to use German for everything. This does not affect the application for access to BaFin's reporting and publishing platform, the MVP Portal. Issuers must provide the requisite supporting documents to submit securities prospecti to BaFin electronically.

The supporting documents must be submitted in English or with a German translation. If a power of attorney to apply for MVP access is also intended to cover the approval process, it must be worded to the effect that the filing party is authorised both to submit documents electronically and to represent the principal in contact with BaFin during the approval process.

Authorised agents

Every issuer with a registered office abroad is obliged to appoint an authorised agent in Germany, in accordance with ss2 and 34 WpPG.