On 5 April 2001, PubliGroupe SA, Lausanne, announced its results for the 2000 financial year. Its financial report revealed a higher-than-expected profit of CHF 140 million and the company's outlook for 2001 was presented as being excellent.
At approximately 7:30 am on 4 September 2001, PubliGroupe SA announced its half-year financial figures for 2001. As 30 June 2001, its net earnings amounted to CHF 8 million, roughly 80% below the comparable prior-year results. Had extraordinary gains from real-estate sales in the first half of the previous year included in those figures, the company's profit per 30 June 2001 would in fact have been 93% lower than the results achieved in the first semester of 2000. The company explained this massive drop as being attributable to the difficult situation in the American market and, above all, a collapse in the area of online advertising.
A first draft of the company's half-year figures for 2001, together with revised earnings forecasts, were discussed at a meeting held on 15 August 2001. Present at that meeting were the company's chairman of the board and two vice-chairmen. On 27 and 28 August 2001, the numbers were examined and discussed by the full board of directors.
Pursuant to Art. 72 para. 1 of the Listing Rules of the SWX Swiss Exchange (LR), the issuer must inform the market of price-sensitive facts that have arisen in the company's sphere of activity and are not of public knowledge. Price sensitive facts are deemed to be new facts that, due to their considerable effect on the issuer's assets and liabilities or financial position or on the general course of its business, are likely to result in substantial movements in the price of its securities. Publication of financial figures is fundamentally associated with the disclosure of price-sensitive facts. Aside from profit warnings, events such as a surprising loss of significant magnitude or an unexpected collapse in earnings come under that definition, as was the case in this situation.
Pursuant to Art. 72 para. 2 LR, the issuer must provide information without delay as soon as it has knowledge of the main points of the price-sensitive facts in question. The question of whether the knowledge of the preliminary figures and revised earning forecasts by the top management of PubliGroupe SA by 15 August 2001 corresponds to the concretisation criteria of a fact in the sense of Art. 72 para. 2 LR could be left open, as the company should not have waited after 28 August 2001 until the predetermined date for the release of its half-year results. Adhering to a previously announced publication date does not represent legal grounds for postponing the disclosure of price-sensitive facts. As per Art. 72 para. 2 LR, the disclosure of such information may only be postponed if the new facts are based on a plan or decision of the issuer, which is not the case in a matter of a collapse in earnings.
The Committee of the Admission Board has ruled that a breach of Art. 72 para. 2 LR has been committed if an issuer fails to disclose to the public preliminary figures that point to a significant drop in earnings and therefore constitute a fact in the sense of Art. 72 LR. Art. 72 para. 2 LR is also deemed to have been breached if officers of the company in question have learned of the definitive figures but, without justification, nonetheless postpone for several days the publication of such facts until the previously announced publication date.
