Responsabilities deriving from the Informative Document (ID) and the Safeguard of Investors. Differences between the Italian and German System

The author analizes that in Germany, the first country in Europe to regulated the Prospekthaftung in 1896 by issuing the BoersenGesetz, a set of regulations mirrors the attention given to investors who are damaged by untrue or incomplete information issued in a ID (Informative Document). Besides, Germany regulated the civil responsibility deriving from an ID in special acts regarding some special forms of investment, and at the same time some rulings were issued in the German Stock Exchange, grauer Kapitalmarkt, which concern alternative forms of investment, to which some principles of general civil law were applied, chiefly the institution of culpa in contrahendo. In this case we talk of Zweispurigkeit, or ‘bipolarity’ of Prospekthaftung i.e. (i) responsibility regulated by special civil law, and (ii) responsibility regulated by general civil law. The author underlines that, while in Germany an analytic legislation regarding the liability for an inaccurate prospectus has been developing sin the end of the 1800s and the jurisprudential trend has been stabilized in the realm of grauer Kapitalmarkt, in Italy such liability has not been expressly regulated, and it was not until 1980 that the doctrine Portale brought the problem to the attention of the legal community, following the new legislation about the Stock Exchange. The legal community anticipated the jurisprudence. Also, despite the fact that the German legislation and jurisprudence are more developed in respects to the Italian system regarding the Prospekthaftung, in Italy there has been great improvement in the issue of the liability of the supervising institution of the StockExchange in comparason to the German system, where there are no sentences pertaining to the liability of such an institution. The merit of the Italian legal community must be noted for its stimulation of the jurisprudence and the legislature in recognizing the responsibility of the public administration and the compensation of “unfair damages”.