EU Prospectus Regulation – BaFin clarifies the term "offer of securities to the public"

On September 11, 2025, BaFin published a guidance note on the term “offer of securities to the public” under the EU Prospectus Regulation. At first glance, this may seem surprising. After all, the definition of an offer of securities to the public has not changed since the Prospectus Directive of 2003, nor has it been amended by the Listing Act of 2024. However, European courts have delivered several rulings on the interpretation of the term "offer of securities to the public" to which BaFin expressly refers. BaFin thus clarifies that the previous understanding of the term in German practice can no longer be upheld in all respects. The new information sheet therefore deserves special attention.

In particular

Concept and meaning of an offer of securities to the public

The German language version of the EU Prospectus Regulation defines an "offer of securities to the public" as a communication to the public in any form and by any means that contains sufficient information about 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 the placement of securities by financial intermediaries. It is a starting point for obligations under the EU Prospectus Regulation. This is because securities may only be offered to the public in the EU after prior publication of a prospectus in accordance with the requirements of the EU Prospectus Regulation, unless one of the exemptions regulated in the EU Prospectus Regulation applies.

BaFin Guidance Note

In its guidance note, BaFin explains its interpretation of various key terms in the statutory definition of an offer of securities to the public. In doing so, it assumes a broad understanding of these terms.

Communication in any form and by any means

An offer of securities to the public within the meaning of European prospectus law is not an offer in the meaning of German civil law. Accordingly, it does not constitute a binding declaration of intent within the meaning of the German Civil Code (BGB). Rather, an invitation of an investor to submit a declaration of purchase (invitatio ad offerendum) is sufficient. The form and type of communication and the communication media used are irrelevant. This is, however, not new for the German practice.

Information about the terms of the offer and the securities to be offered

In terms of content, the communication must contain a minimum of information on the basis of which investors can take an investment decision. The BaFin cites examples such as information on the application and subscription procedure, the investment amount, the term, and the possible interest rate range. What is necessary to take an investment decision depends on the individual case. It is not required that all documents needed for the conclusion of a contract or the necessary information which is material to an investor for making an informed assessment of the economic situation of the issuer, the rights attaching to the securities; and the reasons for the issuance and its impact on the issuer. This information must rather be included in a prospectus (as set out in the EFTA Court's judgement referred to by BaFin, see appendix). Furthermore, the existence of an offer of securities to the public does not require a concrete opportunity to purchase.

Even information made available in several stages may, taken together, constitute an offer of securities to the public. Also, a collective decision as the sum of many individual decisions could constitute an investment decision in this context. Therefore, for example, a resolution by a company's shareholders on a merger or spin-off could be captured.

Communication to the public

BaFin already considers as communication to the public if the relevant communication is addressed to at least two persons. In this regard, it refers to the wording of many language versions of the EU Prospectus Regulation, in particular the English version, which considers a “communication to persons” to be sufficient. A communication to an indefinite group of persons is not required. Therefore, even addressing several persons individually may constitute a public offer; the designation as a private placement is irrelevant in this context.

Correction through exemption

BaFin counters the potential criticism that the broad interpretation of the term "offer of securities to the public" leads to unfair results by making reference to the various exemptions from the prospectus requirement provided in the EU Prospectus Regulation. Of particular relevance are the exemptions for offers that

• are addressed solely to qualified investors,
• are addressed to fewer than 150 non-qualified investors per Member State,
• provide for a minimum denomination of the securities offered of EUR 100,000, or
• are addressed to investors who acquire securities or a total consideration of at least EUR 100 000 per investor.

Conclusion

The BaFin guidance note provides greater clarity on the interpretation of the term "offer of securities to the public." The fact that this neither requires an “offer” in a civil law sense nor to be public in order to trigger a prospectus requirement may bother linguistic purists. However, BaFin is consistently implementing an interpretation that has been developed in European case law and is contributing to a coherent interpretation of Union law across Europe. The guidance note deserves special attention in communications prior to securities placements.

Click here for the BaFin information sheet.

Court decisions by the ECJ and the EFTA Court:

• ECJ: judgment of January 9, 2025 in case C-627/23 re. Schaerbeek, Linkebeek v. Holding Communal SA,
• ECJ: judgment September 17, 2012 in case C-441/12 re. Almer Beheer, Daedalus v. Vastgoed, Osterhout,
• EFTA Court: judgement of June 18, 2021 in case E-10/20 re. ADCADA v. FMA (Liechtenstein).