- Directive 2003/71/EC [2003] OJ L345/64, 31 December 2003.
- Directive 2010/73/EU [2010] OJ L327/1, 11 December 2010.
- Commission Regulation (EC) No 809/2004 of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements, [2004] OJ L149/1, 30 April 2004.
- Commission Delegated Regulation (EU) No 486/2012 [2012] OJ L150/1, 9 June 2012.
- Draft Commission Delegated Regulation (EU), COM(2012) 3505 final, 4 June 2012. This delegated Regulation is subject to the right of the European Parliament and of the Council to express objections, in accordance with Art 290(2) of the Treaty on the Functioning of the European Union and Art 24c of the amended Prospectus Directive.
- SI 2012 No 1538 which amends the Financial Services and Markets Act 2000.
- The latest is the 15th updated version, 2 July 2012, ESMA/2012/417.
- D Fischer-Appelt, “Prospectus Directive Amendments – Discussion of Key Changes” (2010) 4(5) Law and Financial Markets Review 490.
- Art 3(2)(a).
- [2004] OJ L145/1, 30 April 2004.
- At 12 July 2012, not all of the EEA Member States had implemented the changes.
- See new Art 2(s) Prospectus Directive.
- See Recital (15) of the Amending Directive.
- Art 5(2) Prospectus Directive.
- Recital 15 of the Amending Directive.
- See Recital 27 of the Amending Directive.
- See ESMA Questions and Answers (Q&A), Prospectuses, 15th updated version, 2 July 2012, ESMA/2012/417, no 80 (Format of the summary (Annex XXII)). ESMA notes this is initial guidance before the publication of the forthcoming Implementing Technical Standards concerning a uniform template.
- Ibid, Q&A, no 80. The wording “not applicable” (rather than N/A) is also used in Guide 4 to Annex XXII to the revised Prospectus Regulation. The required warnings are included in Annex XXII, section A – Introduction and warnings.
- ESMA Final report, ESMA/2011/323, para 176.
- See Art 24(1), para 3.
- See the reference in Guide 7 to Annex XXII.
- Communication from the Commission to the European Parliament and the Council, Packaged Retail Structured Securities, and Investment Products, COM(2009) 204 final, 30 April 2009.
- See Recital 27 of the Amending Directive.
- See ESMA's technical advice on possible delegated acts concerning the Prospectus Directive as amended by the Directive 2010/73/EU, Final Report, 4 October 2011, ESMA/2011/323, paras 206–10. ESMA noted that it undertook the work on prospectus summaries on a standalone basis. Whilst the work on Undertakings for Collective Investment in Transferable Securities (UCITS) KIDs was similar to that on PRIPS, ESMA stated it was necessary to wait for the work on PRIPs to see how to align the structures. Given the timing, ESMA noted that it was for the Commission to consider how best to align prospectus summaries and PRIP KIDs.
- COM(2012) 352 final, 3 July 2012. Under the proposed regulation, KIDs will need to be produced for all key “packaged” investment products including structured products, insurance-based investments and all kinds of funds, in addition to private pension products. UCITS are exempt from the new requirements for a transitional period of five years, to allow the recently introduced key investor information document for UCITS to apply.
- Ibid, Explanatory Memorandum, point 3.4.8, 11.
- The legislative proposal will now pass to the European Parliament and the Council of the EU for their consideration. The Commission suggests that the PRIPs provisions could apply by the end of 2014.
- Q&A no 78 (Issue specific details in case of Category B items), ESMA/2012/417.
- Recital 26 clarifies that a base prospectus should make it easy to identify what kind of information will have to be included as final terms, and that this requirement can be satisfied in a number of different ways, such as leaving blanks for information to be inserted, or providing a list of the missing information in the base prospectus. This Recital already applied before the changes to the Prospectus regime.
- New para 4 of Art 22 Prospectus Regulation.
- During the consultation, respondents noted the additional cost of translating issue specific summaries, but ESMA's advice responded that the summary of the individual issue, as the finalised version of the base prospectus summary, was not a significant burden on flexibility and costs as it only completed missing key information not known at the time of the approval of a base prospectus (ESMA Final report, ESMA/2011/323, paras 64–69).
- Art 22(4)(b) Prospectus Regulation.
- See Art 2a(2) of the First Amending Regulation, which refers back to Art 16(1) Prospectus Directive.
- Art 2a(2), para 2, First Amending Regulation.
- ESMA Final report, October 2011, ESMA/2011/323, para 52.
- See new Art 7(2)(g) Prospectus Directive.
- Reference is made to Art 29(3) of Directive 1977/91/EEC (Second Companies Directive)([1977] OJ L26/1, 31 January 1977): “The right of pre-emption must be exercised within a period which shall not be less than 14 days from the date of publication of the offer or from the date of dispatch of the letters to the shareholders.”
- Directive 2003/6/EC.
- New Art 26a(3) Prospectus Regulation.
- [2012] HR 3606–1–22.
- The US changes apply to emerging growth company IPOs, not rights issues, but if taken up might also impact on Rule 144A practice more generally.
- See para 2 of new Art 26b.
- That provision applies to non-equity securities issued in a continuous or repeated manner by credit institution where the total consideration for the offer in the EU is less than €75 m calculated over a 12-month period (excluding subordinated, convertible or exchangeable securities, equity-linked and other similar instruments).
- New Art 34, para 2, Prospectus Regulation.
- This has procedural reasons – the proposal was transmitted to the European Parliament too late for it formally to adopt a waiver of its three-month objection period.
- Retail cascade legends are being developed by the International Capital Markets Association (ICMA) and it is expected that an industry standard form of consent will be available shortly.
- See J Machin, “EC's Changes to the Prospectus Directive Regulation: Likely Impact on MTN Programmes” (2012) 27(6) Butterworths Journal of International Banking and Financial Law 378.
- SI 2012 No 1538.
- FSA 2012/29, Prospectus Directive Amending Directive Instrument 2012. The UK Listing Authority (UKLA) now grants prospectus approvals based on the UKLA checklists updated for the Amending Directive. See www.fsa.gov.uk/pages/doing/ukla/forms/checklists.
- Consultation Paper: ESMA's technical advice on possible delegated acts concerning the Prospectus Directive as amended by Directive 2010/73/EU, 20 June 2012, ESMA/2012/380.
- For a more detailed discussion see Fischer-Appelt, supra n 9, 492–93.
Law and Financial Markets Review
Volume 6, 2012 - Issue 4