The issue of financial products is regularly accompanied by the obligation of the issuer or provider to fulfill corresponding documentation and prospectus obligations. This is certainly the case if the financial product is to be offered to the public. As a rule, a sales prospectus and/or an investment information sheet (“VIB”) must be prepared for investments in accordance with the German Investment Act. The same applies to certain forms of investment assets under the German Capital Investment Code. The MiCAR Regulation will determine what type of crypto asset whitepaper must be prepared for the various types of crypto assets in the future. In the case of securities, which include many tokenized products as sui generis securities, the interaction of the European Prospectus Regulation (EU) 2017/1129 (“Prospectus Regulation”) and the German Securities Prospectus Act (“WpPG”) regulates the prospectus and documentation obligations of providers and issuers. In this respect, the German legislator has made use of an option in the Prospectus Regulation and stipulated that no securities prospectuses need to be published in Germany for public offers of securities with a total consideration of no more than EUR 8 million in the European Economic Area, calculated over a period of twelve months. Instead, a securities information sheet (“WIB”) can be prepared, filed with BaFin and published. But when is this also not the case and what obligations do issuers and providers have instead and can this even have advantages?

When Must a BIB Be Published Instead of a WIB?

However, there is no obligation to publish a WIB if a key information document (“KID”) already has to be published for the security in question in accordance with Regulation (EU) No. 1286/2014 (Packaged Retail and Insurance-based Investment Products (PRIIPs): “PRIIPs Regulation”). For its part, the PRIIPs Regulation stipulates that a key information document must be prepared and published by manufacturers of packaged retail investment products. The issuer or provider must therefore at least also address retail investors with the product in question. Furthermore, the security must be a packaged product within the meaning of the PRIIPs Regulation. It can be difficult to determine when this is the case in individual cases. In principle, however, the PRIIPs Regulation stipulates that packaged investment products are considered to be packaged if the amount to be repaid is subject to fluctuations due to the dependence on reference values or the performance of one or more assets that are not acquired directly by investors. BaFin specifies here that the amount to be repaid must be understood to include both the interest and the repayment of the product. In accordance with the European Securities and Markets Authority (“ESMA”), BaFin also states that the type of reference value is also important. For example, the dependence of the amount to be repaid on internal benchmarks or interest rate indices such as Euribor does not lead to the existence of a packaged product in the sense required here, but the dependence on external benchmarks does.

What are the Differences Between the Different Information Sheets?

In principle, a WIB can therefore be prepared, filed with BaFin and published in Germany for public offers of securities of up to EUR 8 million. The WIB has a maximum length of 3 A4 pages and 4 A4 pages for digital and non-securitized securities. Publication must be approved by BaFin, whereby BaFin only checks the completeness of all information, notes and attachments, but not their accuracy. In comparison, the BIB, which comprises a maximum of 3 A4 pages, does not require any filing or approval by BaFin. It only needs to be prepared and published on the website of the PRIIP manufacturer, usually the issuer. In this respect, the time-consuming and costly approval and filing process with BaFin can be avoided if the terms and conditions of the securities are carefully drafted by an experienced lawyer in securities prospectus law, provided that the design of a PRIIP for which a BIB would have to be prepared is desired.

Attorney Dr. Konrad Uhink



The lawyer responsible for the creation of WIBs and BIBs as well as for the documentation of capital markets issuances in our law firm is attorney Dr. Konrad Uhink.