COMMISSION DELEGATED REGULATION (EU) No 486/2012
of 30 March 2012
amending Regulation (EC) No 809/2004 as regards the format and the content of the prospectus, the base prospectus, the summary and the final terms and as regards the disclosure requirements
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (1), and in particular Articles 5(5) and 7(1) thereof,
Whereas:
(1)
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 (2) sets out in detail information which must be included in a prospectus for different kinds of securities in order to comply with Article 5(1) of Directive 2003/71/EC.
(2)
As a consequence of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (3), the requirement for the issuer to provide annually a document containing or referring to all information published in the 12 months preceding the issuance of the prospectus as laid down in Article 10 of Directive 2003/71/EC was deleted by Directive 2010/73/EU of the European Parliament and of the Council of 24 November 2010 amending Directives 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading and 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market (4). This amendment should be reflected in Regulation (EC) No 809/2004.
(3)
The threshold relating to the obligation to publish a prospectus established by Article 3 of Directive 2003/71/EC was increased from EUR 50 000 to EUR 100 000 by Directive 2010/73/EU. This change should also be introduced in Regulation (EC) No 809/2004.
(4)
Directive 2010/73/EU introduced new provisions in order to enhance investor protection, reduce administrative burdens for companies when raising capital in the securities markets in the Union, and increase efficiency in the prospectus regime, which makes it necessary to adopt amendments to Regulation (EC) No 809/2004 in relation to the format of the final terms of a base prospectus, the format of the summary of the prospectus, and the detailed content and specific form of the key information to be included in the summary.
(5)
In order to avoid that the final terms of a base prospectus contain information that needs to be approved by the competent authorities, the base prospectus should contain all information which the issuer knew at the time of drawing up the prospectus.
(6)
It should be provided that the base prospectus may contain options in relation to all information required for the relevant securities note schedules and building blocks. Final terms should then state which of those options are applicable to the individual issue by referring to the relevant sections of the base prospectus or by reproducing such information. It should be allowed to include certain additional information which does not relate to the securities note in the final terms, if it is considered useful for the investors. That additional information should be specified in this Regulation.
(7)
The final terms should not amend or replace any information contained in the base prospectus as any new information which may affect the investor’s assessment of the issuer and of the securities is to be included in a supplement or a new base prospectus, which is subject to prior approval by the competent authority. Accordingly, the final terms should not include any new description of any new payment conditions which was not included in the base prospectus.
(8)
The summary should provide the investors with key information as required by Article 5(2) of Directive 2003/71/EC. For that purpose, the summary specific to the individual issue should combine that information in the summary of the base prospectus which is only relevant to the individual issue with the relevant parts of the final terms. The summary of the individual issue should be annexed to the final terms.
(9)
For securities linked to or backed by an underlying asset, the base prospectus should disclose all information about the type of underlying asset already known at the date of its approval. Therefore, only issue specific details in relation to this underlying asset should be included in the final terms as the choice of the relevant underlying asset may be influenced by market conditions.
(10)
Provisions on the format and the content of the summary of the prospectus should be laid down so that equivalent information appears in the same position in the summaries and that similar products can be easily compared. Accordingly, where an element is not applicable to a prospectus, that element should appear in the summary with the mention ‘not applicable’.
(11)
A summary should be a self-contained part of the prospectus. Where an issuer, an offeror or a person asking for admission to trading on a regulated market is not under an obligation to include a summary in a prospectus but wishes to produce an overview section in the prospectus, this section should not be entitled ‘Summary’ unless the overview section complies with all the disclosure requirements for summaries. Summaries should be drafted in plain language, presenting the information in an easily accessible way.
(12)
In order to improve the efficiency of the Union’s securities markets and reduce the administrative costs for issuers when raising capital, a proportionate disclosure regime, as required by Article 7(2)(g) of Directive 2003/71/EC, should be introduced for offers of shares to existing shareholders who can either subscribe the shares or sell the right to subscribe the shares.
(13)
As required by Article 7(2)(e) of Directive 2003/71/EC, a proportionate disclosure regime should adequately take into account the size of issuers, in particular credit institutions issuing non-equity securities referred to in Article 1(2)(j) of Directive 2003/71/EC, which chose to opt into the regime of Directive 2003/71/EC, small and medium-sized enterprises and companies with reduced market capitalisation. However, such issuers should be allowed to choose between schedules with proportionate requirements and the full disclosure regime.
(14)
The proportionate disclosure regimes should take into account the need to improve investor protection and the amount of information already disclosed to the markets.
(15)
Advertisements should inform investors when no prospectus is required in accordance with Directive 2003/71/EC unless the issuer, the offeror or the person asking for admission to trading on a regulated market chooses to publish a prospectus that complies with the requirements of Directive 2003/71/EC and this Regulation.
(16)
In consideration of the need to provide issuers with a transitional period to adapt to the new requirements introduced by this Regulation, this Regulation should only apply to prospectuses and base prospectuses which have been approved by a competent authority on the date of or after its entry into force.
(17)
Regulation (EC) No 809/2004 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Amendments to Regulation (EC) No 809/2004
Regulation (EC) No 809/2004 is amended as follows:
(1)
in Article 1, point 3 is deleted;
(2)
in Article 2, the following point 13 is added:
‘13.
“Rights issue”, means any issue of statutory pre-emption rights which allow for the subscription of new shares and is addressed only to existing shareholders. Rights issue also includes an issue where such statutory pre-emption rights are disabled and replaced by an instrument or a provision conferring near identical rights to existing shareholders when those rights meet the following conditions:
(a)
shareholders are offered the rights free of charge;
(b)
shareholders are entitled to take up new shares in proportion to their existing holdings, or, in the case of other securities giving a right to participate in the share issue, in proportion to their entitlements to the underlying shares;
(c)
the rights to subscribe are negotiable and transferable or, if not, the shares arising from the rights are sold at the end of the offer period for the benefit of those shareholders who did not take up those entitlements;
(d)
the issuer is able, as regards the entitlements referred to in point (b), to impose limits or restrictions or exclusions and make arrangements it considers appropriate to deal with treasury shares, fractional entitlements and requirements laid down by law or by a regulatory authority in any country or territory;
(e)
the minimum period during which shares may be taken up is the same as the period for the exercise of statutory pre-emption rights laid down in Article 29(3) of Council Directive 77/91/EEC (5);
(f)
the rights lapse at the expiration of the exercise period.
(3)
in Chapter I, the following Article 2a is added:
‘Article 2a
Categories of information in the base prospectus and the final terms
1. The categories set out in Annex XX shall determine the degree of flexibility by which the information can be given in the base prospectus or the final terms. The categories shall be defined as follows:
(a)
“Category A” means the relevant information which shall be included in the base prospectus. This information cannot be left in blank for later insertion in the final terms;
(b)
“Category B” means that the base prospectus shall include all the general principles related to the information required, and only the details which are unknown at the time of the approval of the base prospectus can be left in blank for later insertion in the final terms;
(c)
“Category C” means that the base prospectus may contain a reserved space for later insertion for the information which was not known at the time of the approval of the base prospectus. Such information shall be inserted in the final terms.
2. Where the conditions of Article 16(1) of Directive 2003/71/EC apply, a supplement shall be required.
Where those conditions do not apply, the issuer, the offeror or the person asking for admission to trading on a regulated market shall publish a notice of the change.’;
(4)
Article 3 is replaced by the following:
‘Article 3
Minimum information to be included in a prospectus
A prospectus shall be drawn up by using one or a combination of the schedules and building blocks set out in this Regulation.
A prospectus shall contain the information items required in Annexes I to XVII and Annexes XX to XXIX depending on the type of issuer or issues and securities involved. Subject to Article 4a(1), a competent authority shall not request that a prospectus contains information items which are not included in Annexes I to XVII or Annexes XX to XXIX.
In order to ensure conformity with the obligation referred to in Article 5(1) of Directive 2003/71/EC, the competent authority of the home Member State, when approving a prospectus in accordance with Article 13 of that Directive, may, on a case-by-case basis, require the information provided by the issuer, the offeror or the person asking for admission to trading on a regulated market to be completed, for each of the information items.
Where the issuer, the offeror or the person asking for the admission to trading on a regulated market is required to include a summary in a prospectus, in accordance with Article 5(2) of Directive 2003/71/EC, the competent authority of the home Member State, when approving the prospectus in accordance with Article 13 of that Directive, may, on a case-by-case basis, require certain information provided in the prospectus, to be included in the summary.’;
(5)
Article 4a is amended as follows:
(a)
in paragraph 2, the introductory phrase of the first subparagraph is replaced by the following:
‘The competent authority shall base any request pursuant to the first subparagraph of paragraph 1 on the requirements set out in item 20.1 of Annex I, item 15.1 of Annex XXIII, item 20.1 of Annex XXV, item 11.1 of Annex XXVII and item 20.1 of Annex XXVIII as regards the content of financial information and the applicable accounting and auditing principles, subject to any modification which is appropriate in view of any of the following factors:’;
(b)
in paragraph 4, point (a) is replaced by the following:
‘(a)
its entire business undertaking at the time that the prospectus is drawn up is not accurately represented in the historical financial information which it is required to provide under item 20.1 of Annex I, item 15.1 of Annex XXIII, item 20.1 of Annex XXV, item 11.1 of Annex XXVII and item 20.1 of Annex XXVIII;’;
(c)
paragraph 6 is replaced by the following:
‘6. For the purposes of paragraph 5 of this Article, and of item 20.2 of Annex I, item 15.2 of Annex XXIII and item 20.2 of Annex XXV, a significant gross change means a variation of more than 25 %, relative to one or more indicators of the size of the issuer’s business, in the situation of an issuer.’;
(6)
in Articles 7, 8, 12, 16 and 21, and in Annexes IV, V, VII to X, XII, XIII, XV and XVIII, the figure ‘50 000’ is replaced by ‘100 000’;
(7)
in Article 9, the following second paragraph is added:
‘Item 3 of Annex VI shall not apply where a Member State acts as guarantor.’;
(8)
in Article 21, the following paragraph 3 is added:
‘3. The issuer, the offeror and the person asking for admission to trading on a regulated market may choose to draw up a prospectus in accordance with the proportionate schedules set out in Annexes XXIII to XXIX instead of the schedules set out in Annexes I, III, IV, IX, X and XI as described in the second subparagraph provided that the respective conditions laid down in Articles 26a, 26b and 26c are fulfilled.
Where the issuer, the offeror and the person asking for admission to trading on a regulated market makes that choice:
(a)
the reference to Annex I in Annex XVIII shall be read as a reference to Annex XXIII or XXV;
(b)
the reference to Annex III in Annex XVIII shall be read as a reference to Annex XXIV;
(c)
the reference to Annex IV in Annex XVIII shall be read as a reference to Annex XXVI;
(d)
the reference to Annex IX in Annex XVIII shall be read as a reference to Annex XXVII;
(e)
the reference to Annex X in Annex XVIII shall be read as a reference to Annex XXVIII;
(f)
the reference to Annex XI in Annex XVIII shall be read as a reference to Annex XXIX.’;
(9)
Article 22 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. A base prospectus shall be drawn up using one or a combination of schedules and building blocks provided for in this Regulation according to the combinations for various types of securities set out in Annex XVIII.
A base prospectus shall contain the information items required in Annexes I to XVII, Annex XX and Annexes XXIII to XXIX depending on the type of issuer and securities involved, provided for in the schedules and building blocks set out in this Regulation. A competent authority shall not request that a base prospectus contains information items which are not included in Annexes I to XVII, Annex XX or Annexes XXIII to XXIX.
In order to ensure conformity with the obligation referred to in Article 5(1) of Directive 2003/71/EC, the competent authority of the home Member State, when approving a base prospectus in accordance with Article 13 of that Directive, may, on a case-by-case basis, require the information provided by the issuer, the offeror or the person asking for admission to trading on a regulated market to be completed for each of the information items.
Where the issuer, the offeror or the person asking for the admission to trading on a regulated market is required to include a summary in a base prospectus, in accordance with Article 5(2) of Directive 2003/71/EC, the competent authority of the home Member State, when approving the base prospectus in accordance with Article 13 of that Directive, may, on a case-by-case basis, require certain information provided in the base prospectus to be included in the summary.’;
(b)
the following paragraph 1a is inserted:
‘1a. The base prospectus may contain options with regard to information categorised as Category A, Category B and Category C, required by the relevant securities note schedules and building blocks, and set out in Annex XX. The final terms shall determine which of these options is applicable to the individual issue, by referring to the relevant sections of the base prospectus or by replicating such information.’;
(c)
paragraph 4 is replaced by the following:
‘4. The final terms attached to a base prospectus shall only contain the following:
(a)
within the various securities notes schedules according to which the base prospectus is drawn up, the information items in Categories B and C listed in Annex XX. When an item is not applicable to a prospectus, the item shall appear in the final terms with the mention “not applicable”;
(b)
on a voluntary basis, any “additional information” set out in Annex XXI;
(c)
any replication of, or reference to, options already provided for in the base prospectus which are applicable to the individual issue.
The final terms shall not amend or replace any information in the base prospectus.’;
(d)
in paragraph 5, the following point 1a is inserted:
‘1a.
a section containing a template, the “form of the final terms”, which has to be filled out for each individual issue;’;
(e)
in paragraph 7, the following second subparagraph is added:
‘Where the issuer needs to prepare a supplement concerning information in the base prospectus that relates to only one or several specific issues, the right of investors to withdraw their acceptances pursuant to Article 16(2) of Directive 2003/71/EC shall only apply to the relevant issues and not to any other issues of securities under the base prospectus.’;
(10)
Article 24 is replaced by the following:
‘Article 24
Content of the summary of the prospectus, of the base prospectus and of the individual issue
1. The issuer, the offeror or the person asking for the admission to trading on a regulated market shall determine the detailed content of the summary referred to in Article 5(2) of Directive 2003/71/EC in accordance with this Article.
A summary shall contain the key information items set out in Annex XXII. Where an item is not applicable to a prospectus, such item shall appear in the summary with the mention “not applicable”. The length of the summary shall take into account the complexity of the issuer and of the securities offered, but shall not exceed 7 % of the length of a prospectus or 15 pages, whichever is the longer. It shall not contain cross-references to other parts of the prospectus.
The order of the sections and of the elements of Annex XXII shall be mandatory. The summary shall be drafted in clear language, presenting the key information in an easily accessible and understandable way. Where an issuer is not under an obligation to include a summary in a prospectus pursuant to Article 5(2) of Directive 2003/71/EC, but produces an overview section in the prospectus, this section shall not be entitled “Summary” unless the issuer complies with all disclosure requirements for summaries laid down in this Article and Annex XXII.
2. The summary of the base prospectus may contain the following information:
(a)
information included in the base prospectus;
(b)
options for information required by the securities note schedule and its building block(s);
(c)
information required by the securities note schedule and its building block(s) left in blank for later insertion in the final terms.
3. The summary of the individual issue shall provide the key information of the summary of the base prospectus combined with the relevant parts of the final terms. The summary of the individual issue shall contain the following:
(a)
the information of the summary of the base prospectus which is only relevant to the individual issue;
(b)
the options contained in the base prospectus which are only relevant to the individual issue as determined in the final terms;
(c)
the relevant information given in the final terms which has been previously left in blank in the base prospectus.
Where the final terms relate to several securities which differ only in some very limited details, such as the issue price or maturity date, one single summary of the individual issue may be attached for all those securities, provided the information referring to the different securities is clearly segregated.
The summary of the individual issue shall be subject to the same requirements as the final terms and shall be annexed to them.’;
(11)
in Article 25(5), the following third subparagraph is added:
‘In any case, a new filing of final terms and summary of the individual issue annexed thereto corresponding to offers made prior to the production of a new summary or a supplement to the summary shall not be required.’;
(12)
in Article 26, paragraph 5 is replaced by the following:
‘5. The final terms shall be presented in the form of a separate document or be included in the base prospectus. The final terms shall be prepared in an easily analysable and comprehensible form.
The items of the relevant securities note schedule and its building blocks, which are included in the base prospectus, shall not be reproduced in the final terms.
The issuer, the offeror or the person asking for admission to trading on a regulated market may include any of the additional information set out in Annex XXI in the final terms.
A clear and prominent statement shall be inserted in the final terms indicating:
(a)
that the final terms have been prepared for the purpose of Article 5(4) of Directive 2003/71/EC and must be read in conjunction with the base prospectus and its supplement(s);
(b)
where the base prospectus and its supplement(s) are published in accordance with Article 14 of Directive 2003/71/EC;
(c)
that in order to get the full information both the base prospectus and the final terms must be read in conjunction;
(d)
that a summary of the individual issue is annexed to the final terms.
The final terms may include the signature of the legal representative of the issuer or the person responsible for the prospectus according to the relevant national law or the signature of both.
5a. The final terms and the summary of the individual issue shall be drawn up in the same language respectively as the approved version of the form of the final terms of the base prospectus and as the summary of the base prospectus.
When the final terms are communicated to the competent authority of the host Member State or, if there is more than one host Member State, to the competent authorities of the host Member States, in accordance with Article 5(4) of Directive 2003/71/EC, the following language rules shall apply to the final terms and the annexed summary:
(a)
where the summary of the base prospectus is to be translated pursuant to Article 19 of Directive 2003/71/EC, the summary of the individual issue annexed to the final terms shall be subject to the same translation requirements as the summary of the base prospectus;
(b)
where the base prospectus is to be translated pursuant to Article 19 of Directive 2003/71/EC, the final terms and the summary of the individual issue annexed thereto, shall be subject to the same translation requirements as the base prospectus.
The issuer shall communicate those translations, together with the final terms, to the competent authority of the host Member State or, if there is more than one host Member State, to the competent authorities of the host Member States.’;
(13)
the following Chapter IIIa is inserted:
‘CHAPTER IIIa
PROPORTIONATE DISCLOSURE REGIME
Article 26a
Proportionate schedule for rights issues
1. The proportionate schedules set out in Annexes XXIII and XXIV shall apply to rights issues, provided that the issuer has shares of the same class already admitted to trading on a regulated market or a multilateral trading facility as defined in point 15 of Article 4(1) of Directive 2004/39/EC of the European Parliament and of the Council (6).
2. Issuers whose shares of the same class are already admitted to trading on a multilateral trading facility can only make use of the schedules set out in Annexes XXIII and XXIV when the rules of that multilateral trading facility contain the following:
(a)
provisions requiring issuers to publish annual financial statements and audit reports within 6 months after the end of each financial year, half yearly financial statements within 4 months after the end of the first 6 months of each financial year and make public inside information as defined in point 1 of the first paragraph of Article 1 of Directive 2003/6/EC pursuant to Article 6 of that Directive;
(b)
provisions requiring issuers to make the reports and information referred to in point (a) available to the public by publishing them on their websites;
(c)
provisions preventing insider dealing and market manipulation in accordance with Directive 2003/6/EC.
3. A statement at the beginning of the prospectus shall indicate clearly that the rights issue is addressed to shareholders of the issuer and that the level of disclosure of the prospectus is proportionate to that type of issue.
Article 26b
Proportionate schedules for small and medium-sized enterprises and companies with reduced market capitalisation
The proportionate schedules set out in Annexes XXV to XXVIII shall apply when securities issued by small and medium-sized enterprises and companies with reduced market capitalisation are offered to the public or admitted to trading on a regulated market situated or operating within a Member State.
However, small and medium-sized enterprises and companies with reduced market capitalisation may instead choose to draw up a prospectus in accordance with the schedules set out Annexes I to XVII and XX to XXIV.
Article 26c
Proportionate requirements for issues by credit institutions referred to in Article 1(2)(j) of Directive 2003/71/EC
Credit institutions issuing securities referred to in Article 1(2)(j) of Directive 2003/71/EC that draw up a prospectus in accordance with Article 1(3) of that Directive may choose to include in their prospectus historical financial information covering only the last financial year, or such shorter period that the issuer has been in operation, in accordance with Annex XXIX to this Regulation.
(14)
Article 27 is deleted;
(15)
in Article 34, the following second paragraph is added:
‘Where no prospectus is required in accordance with Directive 2003/71/EC, any advertisement shall include a warning to that effect unless the issuer, the offeror or the person asking for admission to trading on a regulated market chooses to publish a prospectus which complies with Directive 2003/71/EC and this Regulation.’;
(16)
in Article 35, paragraph 5a is replaced by the following:
‘5a. Third country issuers are not subject to a requirement under item 20.1 of Annex I, item 13.1 of Annex IV, item 8.2 of Annex VII, item 20.1 of Annex X, item 11.1 of Annex XI, item 15.1 of Annex XXIII, item 20.1 of Annex XXV, item 13.1 of Annex XXVI, item 20.1 of Annex XXVIII or item 11 of Annex XXIX, to restate historical financial information included in a prospectus and relevant for the financial years prior to financial years starting on or after 1 January 2015, or to a requirement under item 8.2.a of Annex VII, item 11.1 of Annex IX, item 20.1.a of Annex X, item 11.1 of Annex XXVII or item 20.1 of Annex XXVIII to provide a narrative description of the differences between International Financial Reporting Standards adopted pursuant to Regulation (EC) No 1606/2002 and the accounting principles in accordance with which such information is drawn up relating to the financial years prior to financial years starting on or after 1 January 2015, provided that the historical financial information is prepared in accordance with the Generally Accepted Accounting Principles of the Republic of India.’;
(17)
in Annex V, item 4.7 is replaced by the following:
4.7. The nominal interest rate and provisions relating to interest payable:
-
the date from which interest becomes payable and the due dates for interest,
-
the time limit on the validity of claims to interest and repayment of principal.
Where the rate is not fixed, a statement setting out the type of underlying and a description of the underlying on which it is based and of the method used to relate the underlying and the rate and an indication where information about the past and the further performance of the underlying and its volatility can be obtained.
-
a description of any market disruption or settlement disruption events that affect the underlying,
-
adjustment rules with relation to events concerning the underlying,
-
name of the calculation agent.
If the security has a derivative component in the interest payment, provide a clear and comprehensive explanation to help investors understand how the value of their investment is affected by the value of the underlying instrument(s), especially under the circumstances when the risks are most evident.’;
(18)
in Annex XIII, item 4.8 is replaced by the following:
4.8. The nominal interest rate and provisions relating to interest payable:
-
the date from which interest becomes payable and the due dates for interest,
-
the time limit on the validity of claims to interest and repayment of principal.
Where the rate is not fixed, a statement setting out the type of underlying and a description of the underlying on which it is based and of the method used to relate the underlying and the rate:
-
a description of any market disruption or settlement disruption events that affect the underlying,
-
adjustment rules with relation to events concerning the underlying,
-
name of the calculation agent.’.
(19)
Annexes XX to XXIX, the text of which is set out in the Annex to this Regulation, are added.
Article 2
Transitional provision
1. Point (3), points (9)(a) to (d), and points (10), (11) and (12) of Article 1 shall not apply to the approval of a supplement to a prospectus or base prospectus where the prospectus or base prospectus was approved before 1 July 2012.
2. Where in accordance with Article 18 of Directive 2003/71/CE the competent authority of the home Member State notifies the competent authority of the host Member State with a certificate of approval in relation to a prospectus or a base prospectus approved before 1 July 2012, the competent authority of the home Member State shall clearly and explicitly indicate in the certificate that the prospectus or base prospectus was approved before 1 July 2012.
Article 3
Entry into force
This Regulation shall enter into force on 1 July 2012.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 March 2012.