sou · GSB395d2 · 2005-01-01 00:00:00 — (14)Wholesale investors should be able to make their investment decision on other elements than those taken into consideration by retail investors. Therefore a differentiated content of prospectus is necessary for debt and derivative securities aimed at those investors who purchase debt or derivative securities with a denomination per unit of at least 000 or a denomination in another currency provided that the value of such minimum denomination when converted to EURO amounts to at least EURO 50 000. (15)In the context of depository receipts, emphasis should be put on the issuer of the underlying shares and not on the issuer of the depository receipt. Where there is legal recourse to the depository over and above a breach of its fiduciary or agency duties, the risk factors section in the prospectus should contain full information on this fact and on the circumstances of such recourse. Where a prospectus is drafted as a tripartite document (i.e. registration document, securities note and summary), the registration document should be limited to the information on the depository. (16)The banks registration document schedule should be applicable to banks from third countries which do not fall under the definition of credit institution provided for in Article 1(1)(a) of Directive 2000/12/EC of Parliament and of 2000 relating to the taking up and pursuit of the business of credit institutions4 but have their registered office in a state which is a member of the . (17)If a special purpose vehicle issues debt and derivative securities guaranteed by a bank, it should not use the banks registration document schedule. (18)The schedule securities note for derivative securities should be applicable to securities which are not covered by the other schedules and blocks. The scope of this schedule is determined by reference to the other two generic categories of shares and debt securities. In order to provide a clear and comprehensive explanation to help investors understand how the value of their investment is affected by the value of the underlying, issuers should be able to use appropriate examples on a voluntary basis. For instance, for some complex derivatives securities, examples might be the most effective way to explain the nature of those securities. (19)The additional information block on the underlying share for certain equity securities should be added to the securities note for debt securities or substitute the item referring to information required in respect of the underlying of the schedule securities note for derivative securities, depending on the characteristics of the securities being issued. (20)Member States and their regional or local authorities are outside the scope of Directive 2003/71/EC. However, they may choose to produce a prospectus in accordance with this Directive. Third country sovereign issuers and their regional or local authorities are not outside the scope of Directive 2003/71/EC and are obliged to produce a prospectus if they wish to make a public offer of securities in the Community or wish their securities to be admitted to trading on a regulated market. For those cases, particular schedules should be used for the securities issued by States, their regional and local authorities and by public international bodies. (21)A base prospectus and its final terms should contain the same information as a prospectus. All the general principles applicable to a prospectus are applicable also to the 4 OJ L 126, 26.5.2000, p. Directive as last amended by the 2003 Act of Accession. Nevertheless, where the final terms are not included in the base prospectus they do not have to be approved by the competent authority. (22)For some categories of issuers the competent authority should be entitled to require adapted information going beyond the information items included in the schedules and blocks because of the particular nature of the activities carried out by those issuers. A precise and restrictive list of issuers for which adapted information may be required is necessary. The adapted information requirements for each category of issuers included in this list should be appropriate and proportionate to the type of business involved. of Regulators could actively try to reach convergence on these information requirements within the Community. Inclusion of new categories in the list should be restricted to those cases where this can be duly justified. (23)In the case of completely new types of securities which cannot be covered by the existing schedules or any of their combinations, the issuer should still have the possibility to apply for approval for a prospectus. In those cases he should be able to discuss the content of the information to be provided with the competent authority. The prospectus approved by the competent authority under those circumstances should benefit from the single passport established in Directive 2003/71/EC. The competent authority should always try to find similarities and make use as much as possible of existing schedules. additional information requirements should be proportionate and appropriate to the type of securities involved. (24)Certain information items required in the schedules and blocks or equivalent information items are not relevant to a particular security and thus may be inapplicable in some specific cases; in those cases the issuer should have the possibility to omit this information. (25)The enhanced flexibility in the articulation of the base prospectus with its final terms compared to a single issue prospectus should not hamper the easy access to material information for investors. (26)With respect to base prospectuses, it should be set out in an easily identifiable which kind of information will have to be included as final terms. This requirement should be able to be satisfied in a number of different ways, for example, if the base prospectus contains blanks for any information to be inserted in the final terms or if the base prospectus contains a list of the missing information. L 215/5 (27)Where a single document includes more than one base prospectus and each base prospectus would require approval by a different home competent authority, the respective competent authorities should act in cooperation and, where appropriate, transfer the approval of the prospectus in accordance with Article 13(5) of Directive 2003/71/EC, so that the approval by only one competent authority is sufficient for the entire document. (28)Historical financial information as required in the schedules should principally be presented in accordance with Regulation (EC) No 1606/2002 of Parliament and of 2002 on the application of international accounting standard5 or Member States accounting standards. Specific requirements should, however, be laid down for third country issuers. (29)For the purposes of publication of the document referred to in Article 10 of Directive 2003/71/EC, issuers should be allowed to choose the method of publication they consider adequate among those referred to in Article 14 of that Directive. In selecting the method of publication they should consider the objective of the document and that it should permit investors a fast and cost-efficient access to that information. (30)The aim of incorporation by reference, as provided for in Article 11 of Directive 2003/71/EC, is to simplify and reduce the costs of drafting a prospectus; however this aim should not be achieved to the detriment of other interests the prospectus is meant to protect. For instance, the fact that the natural location of the information required is the prospectus, and that the information should be presented in an easily and comprehensible form, should also be considered. Particular attention should be granted to the language used for information incorporated by reference and its consistency with the prospectus itself. Information incorporated by reference may refer to historical data, however if this information is no more relevant due to material change, this should be clearly stated in the prospectus and the updated information should also be provided. (31)Where a prospectus is published in electronic form, additional safety measures compared to traditional means of publication, using best practices available, are necessary in order to maintain the integrity of the information, to avoid manipulation or modification from unauthorised persons, to avoid altering its comprehensibility and to escape from possible adverse consequences from different approaches on offer of securities to the public in third countries. (32)The newspaper chosen for the publication of a prospectus should have a wide area of distribution and a high circulation. 5 OJ L 243, , p. (33)A home should be able to require publication of a notice stating how the prospectus has been made available and where it can be obtained by the public. Where a home requires publication of notices in its legislation, the content of such a notice should be kept to the necessary items information to avoid duplication with the summary. These home Member States may also require that an additional notice in relation to the final terms of a base prospectus is to be published. (34)In order to facilitate centralising useful information for investors a mention should be included in the list of approved prospectuses posted in the web-site of the competent authority of the home , indicating how a prospectus has been published and where it can be obtained. (35)Member States should ensure effective compliance of advertising rules concerning public offers and admission to trading on a regulated market. Proper co-ordination between competent authorities should be achieved in cross-border offerings or cross-border admission to trading. (36)In view of the interval between the entry into force of Regulation (EC) No 1606/2002 and the production of certain of its effects, a number of transitional arrangements for historical financial information to be included in a prospectus should be provided for, in order to prevent excessive burden on issuers and enable them to adapt the way they prepare and present historical financial information within a reasonable period of time after the entry into force of Directive 2003/71/EC. (37)The obligation to restate in a prospectus historical financial information according to Regulation (EC) N° 1606/2002 does not cover securities with a denomination per unit of at least 000; consequently such transitional arrangements are not necessary for such securities. (38)For reasons of coherence it is appropriate that this Regulation applies from the date of transposition of Directive 2003/71/EC. (39)Whereas the measures provided for in this Regulation are in accordance with the opinion of , HAS ADOPTED THIS REGULATION: SUBJECT MATTER AND DEFINITIONS This Regulation lays down: 1.the format of prospectus referred to in Article 5 of Directive 2003/71/EC; 2.the minimum information requirements to be included in a prospectus provided for in Article 7 of Directive 2003/71/EC; 3.the method of publication referred to in Article 10 of Directive 2003/71/EC; 4.the modalities according to which information can be incorporated by reference in a prospectus provided for in Article 11 of Directive 2003/71/EC; 5.the publication methods of a prospectus in order to ensure that a prospectus is publicly available according to Article 14 of Directive 2003/71/EC; 6.the methods of dissemination of advertisements referred to in Article 15 of Directive 2003/71/EC. For the purposes of this Regulation, the following definitions shall apply in addition to those laid down in Directive 2003/71/EC: 1.schedule means a list of minimum information requirements adapted to the particular nature of the different types of issuers and/or the different securities involved; 2.building block means a list of additional information requirements, not included in one of the schedules, to be added to one or more schedules, as the case may be, depending on the type of instrument and/or transaction for which a prospectus or base prospectus is drawn up; 3.risk factors means a list of risks which are specific to the situation of the issuer and/or the securities and which are material for taking investment decisions; 4.special purpose vehicle means an issuer whose objects and purposes are primarily the issue of securities; 5.asset backed securities means securities which: (a)represent an interest in assets, including any rights intended to assure servicing, or the receipt or timeliness of receipts by holders of assets of amounts payable there under; (b)are secured by assets and the terms of which provide for payments which relate to payments or reasonable projections of payments calculated by reference to identified or identifiable assets; 6.umbrella collective investment undertaking means a collective investment undertaking invested in one or more collective investment undertakings, the asset of which is composed of separate class(es) or designation(s) of securities; 7.property collective investment undertaking means a collective investment undertaking whose investment objective is the participation in the holding of property in the long term; 8.public international body means a legal entity of public nature established by an international treaty between sovereign States and of which one or more Member States are members; 9.advertisement means announcements: (a)relating to an specific offer to the public of securities or to an admission to trading on a regulated market; (b) aiming to specifically promote the potential subscription or acquisition of securities. 10.profit forecast means a form of words which expressly states or by implication indicates a figure or a minimum or maximum figure for the likely level of profits or losses for the current financial period and/or financial periods subsequent to that period, or contains data from which a calculation of such a figure for future profits or losses may be made, even if no particular figure is mentioned and the word profit is not used. 11.profit estimate means a profit forecast for a financial period which has expired and for which results have not yet been published. 12.regulated information means all information which the issuer, or any person who has applied for the admission of securities to trading on a regulated market without the issuers consent, is required to disclose under Directive 2001/34/EC or under Article 6 of Directive 2003/6/EC of Parliament and of the Council6. 6 OJ L 96, , p. Minimum information to be included in a prospectus A prospectus shall be drawn up by using one or a combination of the following schedules and blocks set out in Articles 4 to 20, according to the combinations for various types of securities provided for in Article 21. A prospectus shall contain the information items required in Annexes I to XVII depending on the type of issuer and securities involved, provided for in the schedules and blocks set out in Articles 4 to 20. A competent authority shall not request that a prospectus contains information items which are not included in Annexes I to XVII. 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 , when approving a prospectus in accordance with Article 13 of that Directive, may require that the information provided by the issuer, the offeror or the person asking for admission to trading on a regulated market be completed, for each of the information items, on a case by case basis. Share registration document schedule 1For the share registration document information shall be given in accordance with the schedule set out in . 2The schedule set out in paragraph 1 shall apply to the following: 1.shares and other transferable securities equivalent to shares; 2.other securities which comply with the following conditions: (a)they can be converted or exchanged into shares or other transferable securities equivalent to shares, at the issuers or at the investors discretion, or on the basis of the conditions established a the moment of the issue, or give, in any other way, the possibility to acquire shares or other transferable securities equivalent to shares; (b)provided that these shares or other transferable securities equivalent to shares are or will be issued by the issuer of the security and are not yet traded on a regulated market or an equivalent market outside the Community at the time of the approval of the prospectus covering the securities, and that the underlying shares or other transferable securities equivalent to shares can be delivered with physical Pro forma financial information block For pro forma financial information, information shall be given in accordance with the block set out in . Pro forma financial information should be preceded by an introductory explanatory paragraph that states in clear terms the purpose of including this information in the prospectus. Share securities note schedule 1For the share securities note information is necessary to be given in accordance with the schedule set out in . 2The schedule shall apply to shares and other transferable securities equivalent to shares. Debt and derivative securities registration document schedule for securities with a denomination per unit of less than 000 For the debt and derivative securities registration document concerning securities which are not covered in Article 4 with a denomination per unit of less than 000 or, where there is no individual denomination, securities that can only be acquired on issue for less than 000 per security, information shall be given in accordance with the schedule set out in . Securities note schedule for debt securities with a denomination per unit of less than 000 1For the securities note for debt securities with a denomination per unit of less than 000 information shall be given in accordance with the schedule set out in . 2The schedule shall apply to debt where the issuer has an obligation arising on issue to pay the investor of the nominal value in addition to which there may be also an interest payment. For guarantees information shall be given in accordance with the block set out in . Asset backed securities registration document schedule For the asset backed securities registration document information shall be given in accordance with the schedule set out in . Asset backed securities block For the additional information block to the securities note for asset backed securities information shall be given in accordance with the block set out in . Debt and derivative securities registration document schedule for securities with a denomination per unit of at least 000 For the debt and derivative securities registration document concerning securities which are not covered in Article 4 with a denomination per unit of at least 000 or, where there is no individual denomination, securities that can only be acquired on issue for at least 000 per security, information shall be given in accordance with the schedule set out in . For depository receipts issued over shares information shall be given in accordance with the schedule set out in . Banks registration document schedule 1For the banks registration document for debt and derivative securities and those securities which are not covered by Article 4 information shall be given in accordance with the schedule set out in . 2The schedule set out in paragraph 1 shall apply to credit institutions as defined in point (a) of Article 1(1) of Directive 2000/12/EC as well as to third country credit institutions which do not fall under that definition but have their registered office in a state which is a member of the . These entities may also use alternatively the registration document schedules provided for under in Articles 7 and 12. Securities note schedule for derivative securities 1For the securities note for derivative securities information shall be given in accordance with the schedule set out in . 2The schedule shall apply to securities which are not in the scope of application of the other securities note schedules referred to in Articles 6, 8 and 16, including certain securities where the payment and/or delivery obligations are linked to an underlying. Securities note schedule for debt securities with a denomination per unit of at least 000 1For the securities note for debt securities with a denomination per unit of at least 000 information shall be given in accordance with the schedule set out in . 2The schedule shall apply to debt where the issuer has an obligation arising on issue to pay the investor of the nominal value in addition to which there may be also an interest payment. Additional information block on the underlying share 1For the additional information on the underlying share, the description of the underlying share shall be given in accordance with the block set out in . In addition, if the issuer of the underlying share is an entity belonging to the same group, the information required by the schedule referred to in Article 4 shall be given in respect of that issuer. 2The additional information referred to in the first subparagraph of paragraph 1 shall only apply to those securities which comply with both of the following conditions: 1.they can be converted or exchanged into shares or other transferable securities equivalent to shares, at the issuers or at the investors discretion, or on the basis of the conditions established a the moment of the issue or give, in any other way, the possibility to acquire shares or other transferable securities equivalent to shares; 2.provided that these shares or other transferable securities equivalent to shares are or will be issued by the issuer of the security or by an entity belonging to the group of that issuer and are not yet traded on a regulated market or an equivalent market outside the Community at the time of the approval of the prospectus covering the securities, and that the underlying shares or other transferable securities equivalent to shares can be delivered with physical settlement. Registration document schedule for collective investment undertakings of the closed-end type 1In addition to the information required pursuant to items 1, 2, 3, 4, 5.1, 7, 9.1, 9.2.1, 9.2.3, 10.4, 13, 14, 15, 16, 17.2, 18, 19, 20, 21, 22, 23, 24, 25 of , for the registration document for securities issued by collective investment undertakings of the closed-end type information shall be given in accordance with the schedule set out in . 2The schedule shall apply to collective investment undertakings of the closed-end type holding a portfolio of assets on behalf of investors that: 1. are recognised by national law in the in which it is incorporated as a collective investment undertaking of the closed end type; 2.do not take or seek to take legal or management control of any of the issuers of its underlying investments. In such a case, legal control and/or participation in the administrative, management or supervisory bodies of the underlying issuer(s) may be taken where such action is incidental to the primary investment objective, necessary for the protection of shareholders and only in circumstances where the collective investment undertaking will not exercise significant management control over the operations of that underlying issuer(s). Registration document schedule for Member States, third countries and their regional and local authorities 1For the registration document for securities issued by Member States, third countries and their regional and local authorities information shall be given in accordance with the schedule set out in . 2The schedule shall apply to all types of securities issued by Member States, third countries and their regional and local authorities.