Regulation (EU) 2017/1129 (prospectus regulation)

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Regulation (EU) 2017/1129

Title: Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or when they are admitted to trading on a regulated market and repealing Directive 2003/71 / EG
Designation:
(not official) 		Prospectus Ordinance
Scope: EEA
Legal matter: civil right
Basis: TFEU , in particular Art. 114
To be used from: July 21, 2019
Reference: OJ L 168 of 30.06.2017, p. 12 ff
Full text Consolidated version (not official)
basic version
Regulation has entered into force and is applicable.
Please note the information on the current version of legal acts of the European Union !

The Prospectus Ordinance regulates the securities prospectus ( prospectus for short ), which must be published when securities are offered to the public or when they are admitted to trading on a regulated market and thus investor protection, market efficiency and thus the common internal capital market ( capital market union ) and, subsequently, the Deepening European integration .

Objectives and purpose of the prospectus regulation

purpose

The purpose of the Prospectus Regulation is to disclose information for investor protection. Information asymmetries between investors and issuers / providers of securities are to be eliminated. Another reason for the prospectus regulation is the Union-wide possibility of trading in securities, which is only possible with the harmonization of the internal capital market. Further reasons for the enactment of the prospectus regulation are, for example, the increase in the international competitiveness of the European Union and the reduction of administrative burdens for the issuers of securities as well as the investors.

aims

One of the objectives of the Prospectus Ordinance is to ensure investor protection and market efficiency while at the same time strengthening the internal capital market. The provision of the information in a securities prospectus is also intended to be an effective means of increasing investor confidence in securities and thus contributing to the smooth functioning and development of the securities markets.

Exceptions

Exceptions to the Prospectus Ordinance are varied and extensive and essentially regulated in Article 1 Paragraph 1 bis Prospectus Ordinance. A distinction is made between exceptions to which the Prospectus Ordinance does not apply

  • on securities (Article 1 (2) of the Prospectus Ordinance) or
  • on public offers of securities with a total consideration in the Union of less than EUR 1 000 000, whereby this upper limit is to be calculated over a period of 12 months (Article 3 Prospectus Regulation).

There are also exceptions in which the Prospectus Ordinance applies in principle, but the obligation to publish a prospectus does not apply to certain public offers of securities (Article 1 (4) Prospectus Ordinance) or does not apply to the admission of certain instruments to trading on a regulated Market takes place (Article 1 Paragraph 4 Prospectus Ordinance). To clarify this, with regard to open legal questions that still existed in the context of the Prospectus Directive, the exceptions in Article 1 Paragraphs 4 and 5 of the Prospectus Regulation from the obligation to publish a prospectus can be combined with one another (but again with certain exceptions - Article 1 Paragraph 5 Prospectus Ordinance).

Due to the different sizes of the financial markets in the European Union, it is permissible for the Union member states to exempt public offers of securities with a total value of up to 8,000,000 euros from the obligation to publish a prospectus provided for in the prospectus regulation. In addition, if an offer of securities is aimed exclusively at a limited group of investors who are not qualified investors, the preparation of a prospectus can be omitted in view of the small number of persons to whom the offer is aimed. Example: Offers aimed at a limited number of members of a family or personal acquaintances of the managing directors of a company.

Prospectus within the meaning of the Prospectus Ordinance

The Prospectus Ordinance lays down the requirements for the preparation, approval and distribution of the prospectus which is to be published when securities are offered to the public or when securities are admitted to trading on a regulated market located or operated in a member state, firmly . Prospectus within the meaning of the Prospectus Ordinance includes those for a wide variety of types of securities, issuers, offers and approvals, e.g. for standard prospectuses, large customer prospectuses for non-equity securities, base prospectuses, the simplified prospectus for secondary issues or EU growth prospectuses. The contents of the prospectus must be designed in such a way that the prospectus contains all the information that investors need to make informed investment decisions.

The prospectus can consist of one document or be made up of several individual documents (Article 6 Paragraph 3 of the Prospectus Ordinance).

Prospectus preparation

The preparation of the prospectus, the content and the presentation are the central elements of the Prospectus Ordinance and are regulated in Chapters II and III as well as in Appendices I to V.

Articles 6 to 12 (Chapter II) of the Prospectus Ordinance contain regulations for the preparation of the prospectus, the prospectus summary, the base prospectus, the uniform registration form, the prospectus consisting of several individual documents, the prospectus liability and the validity of the prospectus, the registration form and the uniform registration form , contain.

Articles 13 to 19 (Chapter III) of the Prospectus Regulation contain provisions on mandatory and optional content and the layout of the prospectus, the minimum information and the layout, simplified disclosure rules for secondary issues, the EU growth prospectus, risk factors, final issue prices and the final issue volume of the Securities, about non-inclusion of information and inclusion of information by reference, as well as exceptions.

Some selected points from Articles 12 to 19 of the Prospectus Ordinance are shown as examples below.

Preparation, content and presentation of the prospectus

In principle, a prospectus must contain the information necessary for the investor to be able to form an informed judgment about the offer. This information is in particular (Article 6 Paragraph 1 Prospectus Ordinance):

  • the assets and liabilities, profits and losses, financial condition and prospects of the issuer and any guarantor;
  • the rights attached to the securities; and
  • the reasons for the issue and its impact on the issuer,

and must be written and presented in the prospectus (taking into account the factors mentioned in Article 6 (1) (2) of the Prospectus Ordinance) in an easily analyzed, concise and understandable form (Article 6 (2) of the Prospectus Ordinance).

The prospectus must be divided into a registration form, a securities description and a summary (Article 6 (4) of the Prospectus Ordinance).

Registration form

The registration form contains the details of the issuer (Article 6 (4) of the Prospectus Ordinance). According to Article 9 Paragraph 1 of the Prospectus Ordinance, the uniform registration form contains information on the company's organization, business activities, financial position, earnings and future prospects, management and shareholding structure.

Security description

The securities description contains the information on the securities that are to be offered to the public or to be admitted to trading on a regulated market (Article 6 Paragraph 4 of the Prospectus Ordinance ).

Summary

The prospectus summary in accordance with Article 7, Paragraph 1 of the Prospectus Ordinance contains a summary with basic information that provides investors with information about the type and risks of the issuer, the guarantor and the securities offered or admitted to trading on a regulated market; the summary should be read in conjunction with the other parts of the prospectus and is intended to help investors make decisions about investing in the securities concerned .

The information in the summary must be precise, fair and clear and not misleading . The summary is to be understood as an introduction to the prospectus and the information it contains must match the information contained in the other parts of the prospectus (Article 7 (2) of the Prospectus Ordinance). The printed summary (with exceptions) may be a maximum of seven A4 pages long , using letters that are legible. According to Article 7 Paragraphs 4 and 5 of the Prospectus Ordinance, the summary consists of four sections:

  • Introduction with warning notices;
  • Basic information about the issuer;
  • Basic information about the securities;
  • Basic information about the public offer of securities and / or admission to trading on a regulated market.

The summary must not contain any cross-references to other parts of the prospectus or information in the form of a reference (Article 7, Paragraph 11 of the Prospectus Ordinance).

Prospectus liability

Liability for the prospectus is an important corrective to ensure that the prospectus is created and complies with the requirements of the prospectus regulation. To this end, the Union member states must ensure that, depending on the case, at least the issuer or its administrative, management or supervisory body, the offeror, the person applying for admission to trading on a regulated market or the guarantor for the correctness of the information in a prospectus and supplements information contained therein is liable . The responsible persons must also be clearly identified in the prospectus, stating their names and their function, in the case of legal entities, their name and their registered office; The prospectus must also contain declarations by the persons concerned that, to the best of their knowledge, the information in the prospectus is correct and that no information is not included that could change the information in the prospectus (Article 11, Paragraph 1 of the Prospectus Ordinance). Liability itself is not harmonized under European law. This form of prospectus liability is still left to the Union member states.

validity

A prospectus is generally valid for twelve months (Article 12 Prospectus Ordinance). In principle, the timeline for a prospectus is based on several individual documents, according to the date on which the securities description was approved (Article 12 (1) of the Prospectus Ordinance). If a registration form has been previously approved, the registration form will remain valid as part of a prospectus for twelve months after the registration form has been approved. The end of the period of validity of such a (uniform) registration form (...) has no effect on the validity of a prospectus of which it is a component (Article 12 Paragraphs 2 and 3 of the Prospectus Ordinance).

An approved prospectus must contain a clearly visible warning indicating when the prospectus is no longer valid. The warning must also state that there is no obligation to create a prospectus supplement in the event of important new circumstances, material inaccuracies or material inaccuracies if the prospectus has become invalid (Article 21 (8) of the Prospectus Ordinance).

Obligation to prepare a prospectus in the event of resale

If securities are later resold that were previously the subject of one or more types of public offers of securities in accordance with Article 1 paragraph 4 letters a to d of the Prospectus Ordinance, this is considered a separate offer. The offeror must decide (see definition in Article 2 letter d of the Prospectus Ordinance) whether this resale is a public offer of securities. When securities are placed by financial intermediaries, a prospectus must be published in accordance with Article 5 (1) of the Prospectus Ordinance, unless one of the exceptions under Article 1 (4) letters a to d applies to the final placement. In the event of such a subsequent resale of securities or a final placement of securities by financial intermediaries, no further prospectus is required if a valid prospectus within the meaning of Article 12 is available and the issuer or the person responsible for drawing up the prospectus agrees to use it in a written agreement has .

Voluntary prospectus

A prospectus can also be prepared on a voluntary basis (Article 4 Prospectus Ordinance). An issuer or a provider can apply for a prospectus on a voluntary basis in accordance with this ordinance (Article 4 Paragraph 1 Prospectus Ordinance). This prospectus is to be approved by the competent authority of the Union Member State within the meaning of Article 2 (m) of the Prospectus Regulation and the same rights and obligations then result as from a mandatory prospectus under the Prospectus Regulation. The voluntary prospectus is subject to all provisions of the Prospectus Ordinance and the supervision of the relevant competent authority.

Review and approval of a prospectus

Prospectuses are to be checked by the competent authorities of the EU member states and approved within five, ten or 20 working days. A prospectus may only be published once the relevant competent authority has approved it or all of its components in accordance with Article 10 (see Article 20 Prospectus Ordinance). If the competent authority fails to take a decision on the prospectus within the deadlines specified in, this omission does not count as approval (Article 20 (2) of the Prospectus Ordinance).

The wording and layout of the prospectus and any supplements to the prospectus made available to the public must at all times be identical to the original version approved by the competent authority of the home Member State (Article 21 (10) Prospectus Regulation).

The competent authority has an obligation to inform the European Securities and Markets Authority (ESMA) about the approval of prospectuses and all prospectus supplements and must provide them with an electronic copy (Article 21 (5) of the Prospectus Regulation).

The fees for the approval of prospectuses, of documents which form part of prospectuses in accordance with Article 10 or of prospectus supplements and for the filing of uniform registration forms, relevant amendments and final terms must be reasonable and proportionate and published on the website of the competent authority.

Publication of the prospectus and supplements

Prospectus publication

Articles 21 to 23 of the Prospectus Ordinance contain the rules for the publication of the prospectus or supplements to the prospectus and advertising.

In principle, prospectuses may only be published after they have been approved, but in any case before and at the latest with the start of the public offering or the admission of the relevant securities to trading (Article 21, Paragraph 1 of the Prospectus Ordinance). If the prospectus is published in electronic form, the prospectus must be published as a downloadable, printable file on the publicly freely accessible and free website of a person responsible for the issue for the period of validity of the prospectus (Article 21 Paragraphs 2 and 5 of the Prospectus Ordinance) that is accessible to a search function. If necessary, references must be made available in the form of a hyperlink (Article 21 Paragraphs 3 and 4 of the Prospectus Ordinance). In the case of a prospectus that comprises several individual documents and / or contains information in the form of a reference, the documents and information forming the prospectus can be published and disseminated separately, provided that they are made available to the public in accordance with Article 21 (2) of the Prospectus Ordinance. If the prospectus consists of separate individual documents in accordance with Article 10, it must be stated in each of these individual documents, with the exception of the documents included by reference, that this is only part of the prospectus and where the other individual documents can be obtained (Article 21 (10) of the Prospectus Ordinance ).

A copy of the prospectus must be made available to every potential investor free of charge on a durable medium or as a hard copy of the prospectus by the issuer, the offeror, the person applying for admission to trading on a regulated market or the financial intermediaries who place or sell the securities be asked. The provision is limited to legal systems in which the public offer of securities is made within the framework of this ordinance or admission to trading on a regulated market takes place (Article 21 Paragraph 11 Prospectus Ordinance ).

Both the national authority and ESMA have an obligation to publish all prospectuses and prospectus supplements without delay on their publicly freely accessible and free website (Article 21 (5) and (6) Prospectus Regulation), whereby these publications must be publicly available in electronic form for at least ten years (Article 21 para. 7 Prospectus Ordinance).

Supplements to the prospectus

Immediate supplements to a prospectus are required if new circumstances arise, if there are material inaccuracies or inaccuracies in the prospectus which could influence the valuation of the securities and which have occurred between the approval of the prospectus and the expiry of the offer period or, if later, the opening of the Trading on a regulated market occurs or is identified (Article 23 Paragraph 1 Prospectus Ordinance).

Investors who accepted a public offer of securities prior to the publication of the supplement may have the right to withdraw their commitments within two working days of the publication of the supplement. This period can be extended by the issuer or the provider. The deadline for the right of withdrawal is clearly stated in the addendum (Article 23 (2) of the Prospectus Regulation ). Investors must be informed about the publication of the supplement (Article 23 Paragraph 3 Prospectus Ordinance).

Language regime

In principle, one of the official languages ​​of a Union member state is required for the prospectus , or a language recognized by the authority or a language commonly used in international financial circles can be used (Article 27 Paragraphs 1 and 3 of the Prospectus Regulation). Special rules apply to cross-border offers and translations.

advertising

Any advertisement referring to a public offer of securities or admission to trading on a regulated market must in principle (with exceptions) observe the following principles (Article 22 Paragraphs 1 to 5 of the Prospectus Ordinance):

  1. In all advertisements it must be stated that a prospectus has been published or is about to be published and where investors can obtain it ;
  2. Advertising must be clearly identifiable as such. The information contained therein must not be inaccurate or misleading and must match the information contained in the prospectus if it has already been published or which must be included in the prospectus if it is still to be published ;
  3. All information given orally or in writing about the public offer of securities or admission to trading on a regulated market must, even if it is not for advertising purposes, agree with the information contained in the prospectus ;
  4. If material information is disclosed by an issuer or a provider and addressed orally or in writing to one or more selected investors, this information must either
    1. all other investors to whom the offer is addressed will be notified if the publication of a prospectus is not required in accordance with Article 1 paragraphs 4 and 5, or
    2. be included in the prospectus or in a supplement to the prospectus in accordance with Article 23 paragraph 1 if the publication of a prospectus is required .

Monitoring is the responsibility of the competent authority of the Union Member State in which the advertising is disseminated (Article 22 (6) of the Prospectus Regulation). This monitoring may be subject to a fee (Article 22 Paragraph 7 Prospectus Ordinance).

Protective measures

To protect investors, the competent authority can take protective and precautionary measures if irregularities have been committed by issuers, providers or persons applying for admission to trading on a regulated market or by financial intermediaries commissioned to place the public offer of securities, or that these persons have not fulfilled their obligations arising from this ordinance (Article 37 Paragraph 1 Prospectus Ordinance ). Corresponding hotlines are to be set up in the EU member states and whistleblowers are to be given special protection (Article 41 Prospectus Directive).

In addition, the competent authority will immediately inform the Commission and ESMA about measures taken against such guilty persons (Article 37 (2) and 43 of the Prospectus Regulation).

Effective, proportionate and dissuasive administrative sanctions and other administrative measures can be taken against such guilty persons (Article 38 (1) of the Prospectus Ordinance). Union member states can stipulate additional sanctions or measures as well as higher administrative fines than those provided for in the Prospectus Regulation (Article 38 (3) Prospectus Regulation).

Legal basis

The prospectus regulation is based on Article 114 TFEU (internal market competence) and is supplemented by delegated regulations of the European Commission .

Structure and content of the prospectus ordinance

  • CHAPTER I (General Provisions)
    • Article 1 (subject matter, scope and exceptions)
    • Article 2 (definitions)
    • Article 3 (obligation to publish a prospectus and exceptions)
    • Article 4 (Preparation of a prospectus on a voluntary basis)
    • Article 5 (Subsequent resale of securities)
  • CHAPTER II (Preparation of the prospectus)
    • Article 6 (the prospectus)
    • Article 7 (the summary of the prospectus)
    • Article 8 (the base prospectus)
    • Article 9 (The uniform registration document)
    • Article 10 (Prospectuses consisting of several individual documents)
    • Article 11 (prospectus liability)
    • Article 12 (Validity of the prospectus, the registration document and the uniform registration document)
  • CHAPTER III (Content and layout of the prospectus)
    • Article 13 (minimum information and presentation)
    • Article 14 (simplified disclosure regime for secondary issues)
    • Article 15 (EU growth prospectus)
    • Article 16 (risk factors)
    • Article 17 (Final issue price and volume of the securities)
    • Article 18 (failure to include information)
    • Article 19 (inclusion of information by reference)
  • CHAPTER IV (Rules for the Approval and Publication of the Prospectus)
    • Article 20 (review and approval of the prospectus)
    • Article 21 (publication of the prospectus)
    • Article 22 (advertising)
    • Article 23 (Supplements to the prospectus)
  • CHAPTER V (Cross-border offers, admission to trading on a regulated market and language regime)
    • Article 24 (Union-wide validity of approved prospectuses)
    • Article 25 (notification of prospectuses and supplements and notification of final terms)
    • Article 26 (notification of registration documents or uniform registration documents)
    • Article 27 (language regime)
  • CHAPTER VI (Specific rules for issuers established in third countries)
    • Articles 28 and 29
    • Article 30 (cooperation with third countries)
  • CHAPTER VII (ESMA and competent authorities)
    • Article 31 (Competent Authorities)
    • Article 32 (powers of the competent authorities)
    • Article 33 (cooperation between competent authorities)
    • Article 34 (cooperation with ESMA)
    • Article 35 (professional secrecy)
    • Article 36 (data protection)
    • Article 37 (precautionary measures)
  • CHAPTER VIII (Administrative Sanctions and Other Administrative Measures)
    • Article 38 (Administrative sanctions and other administrative measures)
    • Article 39 (exercise of supervisory and sanctioning powers)
    • Article 40 (appeal)
    • Article 41 (reporting of infringements)
    • Article 42 (publication of decisions)
    • Article 43 (reporting of sanctions to ESMA)
  • CHAPTER IX (Delegated and Implementing Acts)
    • Article 44 (exercise of the delegation)
    • Article 45 (committee procedure)
  • CHAPTER X (final provisions)
    • Article 46 (repeal)
    • Article 47 (ESMA report on prospectuses)
    • Article 48 (review)
    • Article 49 (entry into force and application)
  • APPENDIX I (prospectus)
  • ANNEX II (registration form)
  • ANNEX III (Securities Description)
  • ANNEX IV (Registration Document for the EU Growth Prospect)
  • APPENDIX V (Securities Description for the EU Growth Prospectus)
  • ANNEX VI (Correspondence table)

The prospectus directive expires

The Prospectus Ordinance replaced the previously applicable Directive 2003/71 / EC (Prospectus Directive), which basically regulates the same facts, on July 21, 2019 at the latest . References to Directive 2003/71 / EC in other legal acts are now regarded as references to the Prospectus Regulation and should be read in accordance with the correspondence table in Annex VI of the Prospectus Regulation.

Web links

Individual evidence

  1. ↑ See on transferable securities: Article 4 Paragraph 1 Number 44 of Directive 2014/65 / EU and the exception in Article 4 Paragraph 1 Number 17 of Directive 2014/65 / EU with a term of less than 12 months.
  2. ↑ See also recitals (ErwG) 1 and 7 of the Prospectus Regulation.
  3. ↑ An issuer is a legal entity that issues securities or intends to do so (Article 2 lit. h Prospectus Ordinance).
  4. ↑ A provider is a legal personality or natural person who offers securities to the public (Article 2 lit. i Prospectus Ordinance).
  5. ↑ See also Recital 3 of the Prospectus Regulation.
  6. ↑ See also recitals 4 and 5 of the Prospectus Regulation.
  7. ↑ See also Recital 6 of the Prospectus Regulation.
  8. ↑ See also Recital 7 of the Prospectus Regulation.
  9. ↑ Union member states can, however, stipulate other disclosure obligations at national level, provided these do not represent a disproportionate or unnecessary burden (Article 3 (2) of the Prospectus Regulation and Recital 12 of the Prospectus Regulation).
  10. ↑ See also recitals 20 to 22 of the Prospectus Regulation.
  11. ↑ See Article 3 Paragraph 2 and Recital 13 of the Prospectus Regulation.
  12. ↑ Qualified investors are usually professional investors who are able to assess the risk of an investment well. See for example: Annex II Section I Numbers 1 to 4 of Directive 2014/65 / EU; Article 30 of Directive 2014/65 / EU.
  13. ↑ See recitals 15 and 17 of the Prospectus Regulation.
  14. ↑ In the sense of the Prospectus Ordinance, approval means the positive act upon completion of the examination of the prospectus by the competent authority of the home member state for completeness, coherence and comprehensibility of the information contained in the prospectus (see Article 2 lit. r Prospectus Ordinance).
  15. ↑ Article 1, Paragraph 1 of the Prospectus Ordinance.
  16. ↑ equity are to acquire shares and other securities equivalent to transferable securities and any other type of transferable securities that represent the right upon conversion of the security or exercise of the legal right of the aforementioned securities (see Article 2 letter b of the Prospectus Regulation). Non-equity securities are all securities that are not equity securities (see Article 2 lit. c of the Prospectus Ordinance ).
  17. ↑ A base prospectus is a prospectus that meets the requirements of Article 8 of the Prospectus Ordinance and, depending on the issuer's choice, contains the final terms of the offer (Article 2 lit. s of the Prospectus Ordinance).
  18. ↑ See also Recital 24 of the Prospectus Regulation.
  19. ↑ See also recitals 26 to 32 and 52, 65, 66 of the Prospectus Regulation.
  20. ↑ See also: Article 14 Paragraph 2 and Article 18 Paragraph 1 Prospectus Ordinance.
  21. ↑ See also Article 7, Paragraph 1, Subparagraph 2 and Article 8, Paragraph 8 of the Prospectus Regulation.
  22. ↑ Notwithstanding Article 7 subpara. 1 Prospectus Ordinance, a summary may not be required if the prospectus relates to the admission of non-equity securities to trading on a regulated market .
  23. ↑ See also Article 6 of the PRIIP Regulation .
  24. ↑ Article 7, Paragraph 3 of the Prospectus Ordinance.
  25. ↑ However, under certain circumstances, please note Regulation (EU) No. 1286/2014 regarding the key information sheet
  26. ↑ Article 5, Paragraph 1 of the Prospectus Ordinance
  27. ↑ See also the US American EDGAR data processing system .
  28. ↑ See also Article 7 of the PRIIP Regulation .
  29. ↑ See also Article 73 MiFID II Directive and Article 28 PRIIP Regulation .
  30. ↑ For example: DelVO (EU) 2019/979, ABl. 166, 1 of June 21, 2019; DelVO (EU) 2019/980, OJ. 166, 26 of June 21, 2019. See also Recital 78 to 83 and Article 1 Paragraph 7, Article 7 Paragraph 13, Articles 13 to 16 and Chapter IX of the Prospectus Regulation.
  31. ↑ See also Article 46 and Recitals 2 and 6 of the Prospectus Regulation.