5.6.2 Persons initiating the issue

Persons initiating the issue of the prospectus (Prospekt-Veranlasser) are liable on the basis of section 44(1)(2) of the Stock Exchange Act Unlike liability on the basis of section 44(1)(1) of the Stock Exchange Act, the person who initiates (Veranlasser) the issue of the prospectus is liable even though there is no externally observable involvement in the composition of the prospectus. Therefore, persons who did not sign the prospectus can nonetheless be held liable for the publication and distribution of the prospectus if they qualify as the prospectus' factual originator (tatseichliche Urheber).

Besides influence on the prospectus contents, the factual originator needs to have a personal economic interest (eigenes geschaftliches Interesse) in the issue of the securities.1 This economic interest has to encompass more than the sole interest of getting paid for services provided in the preparation process of the prospectus. Persons qualify as initiator if they, by their professional knowledge and experience, guarantee the correctness of the information in the prospectus and by their involvement in the preparation, present themselves to outsiders as persons responsible for the prospectus.2 These persons need to be intentionally involved in the preparation of the misleading prospectus in order to qualify as initiator.3 Examples of a factual originator are the parent company instructing its financing subsidiary to issue its securities or a shareholder who sells his interest in the company at the issue.4 In principle, professional experts like accountants, lawyers or tax consultants do not qualify as factual originator, despite their involvement in preparation of the prospectus, if their contribution is only partial.5' 6 Furthermore, these professional experts do not have any other economie interest in the preparation except for their fee for services provided to the issuer and/or the lead manager. However, note that if, for example, an accountant performs an audit on the entire prospectus, i.e. his audit is not limited to the past annual accounts included in the prospectus, and thereby accepting responsibility for the entire prospectus, he also qualifies as initiator of the prospectus and can be held liable by investors for the auditing.7 In principle, these persons' liability is restricted to the information provided to the issuer and/or lead manager. As a consequence, it is only the issuer or sponsoring bank that may hold these experts liable for this information; the investors have, in most likely circumstances, no right of action against them. The final responsibility for the entire prospectus rests with the issuer and/or lead manager; they can be held liable by investors.