Germany: BaFin guidance on Public Offer under the Prospectus Regulation

1. Introduction

On 11 September 2025, the Federal Financial Supervisory Authority (BaFin) published a new guidance note on the concept of a public offer of securities under the Prospectus Regulation (Regulation (EU) 2017/1129). In this guidance, BaFin addresses the interpretation of the term “offer of securities to the public” as defined in Article 2 (d) of the Prospectus Regulation and explicitly incorporates decisions of the European Court of Justice (ECJ) into its administrative practice.

2. BaFin’s Guidance Note

Regarding the form, manner, minimum required content, and responsibility for a public offer of securities, BaFin confirms its previous practice. The guidance provides further clarification on the conditions under which an offer qualifies as public and the concept of private placement.

2.1 Offer made to the public

In its guidance note, BaFin explains what is decisive in determining if an offer is considered public. According to BaFin, the English language version of the Prospectus Regulation provides important interpretative guidance. It defines a public offer as a communication to persons, without specifying whether the group is determined or undetermined. In contrast, the German version does not explicitly refer to “persons.” Therefore, BaFin concludes that an offer is considered public as soon as it is directed at at least two persons. It is irrelevant whether the offer is accessible to an indeterminate group of people. In BaFin’s administrative practice, the public offer is considered the default case.

2.2 Private Placement

BaFin further confirms that the designation of an offer as a “private placement” has no bearing on whether the offer is considered public. The term “private placement” has no legal basis in the Prospectus Regulation and therefore cannot influence the classification of an offer. Moreover, the fact that the issuer and investor are already acquainted (privately or otherwise) does not justify deviating from the assumption of a public offer. The information needs of the investor are also irrelevant in determining whether an offer is public or not.

With this, BaFin bases its administrative practice on the interpretation of the term “public offering of securities” as defined by the European Court of Justice, specifically in the cases Schaerbeek, Linkebeek v. Holding Communal S.A. (C-627/23) and Almer Beheer BV, Daedalus Holding BV v. Van den Dungen Vastgoed BV, Oosterhout II BVBA (C-441/12), as well as the EFTA Court (the court of the European Free Trade Association member states), particularly the decision ADCADA Immobilien AG PCC in bankruptcy v. Financial Market Authority Liechtenstein (E-10/20).

3. Conclusion

With this guidance note, BaFin provides an overview of the requirements for a public offer of securities. By clarifying the term, BaFin aligns German administrative practice with European case law, ensuring a uniform definition of public offer. The note underscores that the threshold for a public offer is very low, making it all the more important for issuers of securities to familiarize themselves with prospectus exemptions and publication obligations.

With the kind support of Florian Liedtke – Research Assistant.