Overview
The preparation and approval of a prospectus is a key legal step in the context of public offerings of securities or their admission to trading. Regulation (EU) 2017/1129 (the Prospectus Regulation) establishes a harmonised framework across the Member States of the European Union (“EU”) for companies seeking to raise capital on the European capital markets.
When does a prospectus requirement arise in the EU / Liechtenstein?
In both the EU and Liechtenstein, the obligation to publish a prospectus is governed by Regulation (EU) 2017/1129. In principle, a prospectus must be published where securities are (i) offered to the public in the EEA / EU or (ii) admitted to trading on a regulated market.
The term “public offer” is interpreted broadly. Even marketing activities or invitations to subscribe may constitute a public offer. A public offer exists where securities are made available to an undefined number of persons.
The Prospectus Regulation provides for a number of exemptions from the prospectus requirement, applicable both in the EU and in Liechtenstein, including where the offer is made (i) exclusively to qualified investors, (ii) to fewer than 150 persons per Member State, or (iii) where the minimum investment amount per investor is at least EUR 100,000.
In Liechtenstein, the EU Prospectus Regulation is supplemented by the EEA Securities Prospectus Implementation Act (EWR-Wertpapierprospekt-Durchführungsgesetz – WPPDG). In addition to the exemptions provided by EU law, this act introduces a further national exemption: if the issuer does not intend to make a cross-border public offer and the total consideration of the offer within the EEA does not exceed EUR 8,000,000 (or the CHF equivalent) over a period of twelve months, a prospectus is not required. This provision grants issuers in Liechtenstein additional regulatory flexibility.
Approval of a Prospectus in Liechtenstein and Passporting
For a prospectus to be valid in Liechtenstein, it must be approved by the Liechtenstein Financial Market Authority (Finanzmarktaufsicht Liechtenstein – FMA) and duly published in a legally effective manner.
A prospectus approved by the FMA qualifies as an EU-passportable prospectus. Thanks to EU/EEA-wide harmonisation, this prospectus can be used in other EU and EEA countries. This only requires a notification procedure, which enables securities to be offered across multiple EU and EEA jurisdictions without having to undergo a separate prospectus approval process in each Member State. The Liechtenstein prospectus is then considered equivalent in the notified countries.
Prospectus requirements for the issuance of Security Tokens
Even with the introduction of the Regulation on Markets in Crypto-Assets (EU) 2023/1114 (“MiCAR”), the regulatory classification of a crypto-asset will continue to depend on its specific design and function. MiCAR provides increased legal certainty by clearly defining which crypto-assets fall outside its scope, thereby creating a clearer distinction from financial instruments.
In addition, since March 2025, the ESMA has issued guidelines (ESMA 75453128700-1323) further specifying the criteria for classifying crypto-assets as transferable securities. In this guideline, the ESMA states that a crypto asset is considered a transferable security if (i) it is not a payment instrument, (ii) the token is assigned to a class of securities, and (iii) it can be traded on the capital market. An example of such a token would be a token that grants its holders dividend rights and is therefore assigned to a specific class of securities.Security tokens that correspond to the characteristics of a security in their design do not fall within the scope of MiCAR, but remain subject to existing capital market law. In Liechtenstein, this means that such tokens are subject to the Prospectus Regulation in conjunction with the EWR-WPPDG where they are offered to the public.
Changes introduced by the EU Listing Act
With Regulation (EU) 2024/2809, commonly referred to as the EU Listing Act, the EU aims to enhance the attractiveness of public capital markets, particularly for small and medium-sized enterprises (“SMEs”). The EU Listing Act introduced the following main changes to the Prospectus Regulation:
- Extended exemptions and simplifications for existing issuers: The EU Listing Act introduces a significant change for secondary market issues by companies already listed on the stock exchange. Here, a distinction can be made between volume-dependent and volume-independent prospectus exemptions. A volume-based prospectus exemption may be claimed for a public offering of securities that are to be admitted to trading on a regulated market or SME growth market and are fungible with securities already traded there, provided that the securities represent less than 30 % of the number of securities already admitted to the same market within a period of 12 months. A prospectus exemption not based on volume applies to public offers of securities that are fungible with those that have been admitted to trading on a regulated market/SME growth market for the entire 18 months prior to the offer.
- Further standardised presentation of the prospectus: Prospectuses will in future have to follow a strictly standardised format. The aim is to improve readability and reduce preparation costs for issuers. The detailed format shall be specified in a delegated act to be determined by 5 June 2026.
- Amendments relating to supplements to approved prospectuses: If new circumstances arise between the approval of the prospectus and the expiry of the offer period, the information in the prospectus must be updated by means of a supplement (as before). What is new is that the right of withdrawal for investors triggered by the supplement is extended from two to three working days.
- Removal of the minimum threshold for public securities offerings of EUR 1,000,000,000: This amendment means that the Prospectus Regulation will also apply below the specified threshold in future.
- Increase of the maximum amount for prospectus-exempt public offers: The exemption from the prospectus requirement for public offers without notification has been increased from the current limit of EUR 1,000,000–8,000,000 to EUR 12,000,000 – calculated over a period of 12 months. However, Member States have been given leeway to lower this threshold to EUR 5,000,000, which means that national fragmentation will continue.
- Introduction of a follow-up prospectus for secondary market issues instead of the simplified prospectus currently provided for: The EU follow-up prospectus introduces a new, more efficient and easier-to-understand prospectus. Here, too, the aim is to reduce the costs of preparation for issuers. The EU follow-up prospectus can be used for public offers without volume limits, provided that the issuer’s securities have been admitted to trading on a regulated market or an SME growth market without interruption for the last 18 months.
- Acceleration of the prospectus review process by the competent authorities: The Listing Act aims to harmonise review criteria and set a maximum time limit for prospectus review procedures. However, the specific details have yet to be finalised and will be determined by means of a delegated act.
In addition to the adaptation of the EU Prospectus Regulation, the EU Listing Act also adapts the Market Abuse Regulation (MAR) and the MiFID II Directive; the changes will largely take effect from mid-2026.
Summary
Under the harmonised EU/EEA framework, issuers whose prospectus has been approved by the Liechtenstein Financial Market Authority (FMA) can raise capital throughout the EU and EEA. All it requires is the notification of the approved prospectus to the home authority. This opens up efficient and cost-effective access to the entire EU and EEA capital market from Liechtenstein.
Whether a token is subject to a prospectus requirement does not depend on its designation or underlying technology. Rather, the decisive factor is its concrete economic and legal structure. Where a token is functionally equivalent to a traditional financial instrument, it is subject to the corresponding capital markets regime – irrespective of its form, name or technological design. The guiding principle remains: substance over form.
With the EU Listing Act, the EU clearly seeks to make its heavily regulated capital market – particularly for SMEs – more attractive and accessible. Simplifications in prospectus law, such as standardised formats and shorter review processes, provide initial incentives for greater practical usability. However, it remains to be seen whether these changes will actually have a noticeable impact on the heavily regulated market.