BaFin prohibits further issuance without the necessary prospectus – for cash.

BaFin issued the ban on reasonable suspicion that Performance to Go PLC is publicly offering described securities without the required prospectus. The Authority reports that there are no clear exceptions to the prospectus requirements. The action BaFin has taken is not yet final. But it can be implemented immediately.

On March 29, 2023, BaFin indeed announced that there is reasonable suspicion that the relevant securities are offered publicly in Germany without the required prospectus.

According to its website, Performance to Go PLC is based in the UK (PO Box Suite 6 Cumberland Road Cliftonville CT9 2 JZ Cliftonville), but also has a German representative office (GT3 Centre, Auf der Reihe 2, 45884 Gelsenkirchen), according to BaFin.

A fine of up to five million euros

Background: In Germany, securities may not be offered to the public without publishing a prospectus that has been previously approved by BaFin. A public offering of securities without an approved prospectus constitutes a breach of the prospectus requirements under Article 3(1) of the EU Prospectus Regulation, unless an exception applies.

BaFin states that breach of the prospectus obligation can be punished with a fine of up to five million euros or three percent of the total trading volume for the past financial year. Fines of up to twice the economic benefit resulting from the violation may also be imposed.

Whether a BaFin-approved prospectus has been submitted for a public offering of securities can be checked free of charge on the Authority’s website in the “Prospectus Deposit” database.