Prospectus (Directive 2003/71/Ec) Regulations 2005
Statutory Instruments
Source: Statutory Instruments

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paragraphs: (1) These Regulations may be cited as the Prospectus (Directive 2003/71/EC Regulations 2005.
(2) These Regulations shall come into operation on 1 July 2005.
(3) These Regulations shall be construed as one with the Companies Acts 1963 to 2005.
Interpretation
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paragraphs: (1) In these Regulations, except where the context otherwise requires:
“Act of 2005” means the Investment Funds, Companies and Miscellaneous Provisions Act 2005 ;
“admission to trading” means admission of securities to trading on a regulated market and “admission to trading in the State” means admission of securities to trading on a regulated market situated or operating in the State;
“approval” means the positive act at the outcome of the scrutiny of the completeness of the prospectus by the competent authority of the Home Member State including the consistency of the information given and its comprehensibility and “approved” shall be construed accordingly;
“approved stock exchange” has the same meaning as it has in the Stock Exchange Act 1995 (No. 9 of 1995);
“Bank” means the Central Bank and Financial Services Authority of Ireland;
“base prospectus” means a prospectus containing all relevant information as specified in Regulations 19 and 20, and in case there is a supplement, Regulation 51, concerning the issuer and the securities to be offered to the public or admitted to trading, and, at the choice of the issuer, the final terms of the offering;
“collective investment undertaking other than the closed-end type” means unit trusts and investment companies:
(a) the object of which is the collective investment of capital provided by the public and which operate on the principle of risk-spreading;
(b) the units of which are, at the holder's request, repurchased or redeemed directly or indirectly, out of the assets of the undertaking;
“Community act” means an act adopted by an institution of the European Communities;
“company” includes any body corporate;
“competent authority of a Home Member State” means-
(a) where the State is the Home Member State, the Bank, or
(b) where the State is a Host Member State, the central competent administrative authority designated as such under the national law of the Home Member State for the purposes of the Directive;
“contravention” includes, in relation to any provision, a failure to comply with that provision and “contravene” shall be construed accordingly;
“Court” means the High Court;
“credit institution” means an undertaking as defined by Article 1(1)(a) of Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions;
“Directive” means Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003;
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993;
“EEA State” means a state which is a contracting party to the EEA Agreement;
“enactment” includes an instrument made under an enactment;
“equity securities” means shares and other transferable securities equivalent to shares in companies, as well as any other type of transferable securities giving the right to acquire any of the aforementioned securities as a consequence of their being converted or the rights conferred by them being exercised, provided that securities of the latter type are issued by the issuer of the underlying shares or by an entity belonging to the group of the said issuer;
“EU prospectus law” has the same meaning as it has in the Act of 2005;
“functions” includes powers and duties and references to the performance of functions include, as respects the powers and duties, references to the exercise of the powers and the carrying out of the duties;
“Home Member State” means:
(a) for all issuers incorporated or formed in a Member State save in respect of securities mentioned in paragraph (c) of this definition, the Member State where the issuer has its registered office,
(b) for all issuers incorporated or formed in a state or territory which is not a Member State, save in respect of securities mentioned in paragraph (c) of this definition, the Member State where the securities are or were the subject of a public offer for the first time after 31 December 2003 or where the first application for admission to trading is or was made at the choice of the issuer, the offeror or the person asking for admission, as the case may be, subject to a subsequent election by such an issuer if the Home Member State was not determined by its choice (but by the choice of an offeror or a person seeking admission to trading) pursuant to this paragraph,
(c) for:
(i) any issues of non-equity securities whose denomination per unit amounts to at least €1,000,
(ii) any issues of non-equity securities in a currency other than euro, whose denomination per unit amounts to at least €1,000 or the nearest practical equivalent thereto, and
(iii) any issues of non-equity securities giving the right to acquire any transferable securities or to receive a cash amount, as a consequence of their being converted or the rights conferred by them being exercised, provided that the issuer of the non-equity securities is not the issuer of the underlying securities or an entity belonging to the group of the latter issuer,
the Member State where the issuer has its registered office, or where the securities were or are to be admitted to trading or where the securities are the subject of a public offer, at the choice of the relevant person;
“Host Member State” means the state where an offer to the public is made or admission to trading is sought, when different from the Home Member State;
“implementing measures” means any measures directly applicable in consequence of the Directive and, without prejudice to the generality of the foregoing, includes the Prospectus Regulation;
“in writing” includes by facsimile;
“Irish prospectus law” has the same meaning as it has in the Act of 2005;
“issuer” means a body corporate or other legal entity which issues or proposes to issue securities;
“market operator” means one or more persons who manage or operate the business of a regulated market (or who do both those things), and may be the regulated market itself;
“Member State” means a Member State of the European Union or an EEA State;
“Minister” means the Minister for Enterprise, Trade and Employment;
“non-equity securities” means all securities that are not equity securities;
“offering programme” means a plan which would permit the issuance of non-equity securities, including warrants in any form, of a similar type or class (or both), in a continuous or repeated manner during a specified issuing period;
“offer of securities to the public” or “public offer” means a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe for those securities or apply to purchase or subscribe for those securities and this definition shall be construed as -
(a) being also applicable to the placing of securities through financial intermediaries,
and
(b) as not being applicable to trading on a regulated market or any other market operated by an approved stock exchange;
“person making an offer” (or “offeror”) means a body corporate or other legal entity or an individual which or who makes an offer of securities to the public;
“prospectus” means the document or documents required to be published for the purposes of a public offer or admission to trading in accordance with EU prospectus law and includes where the context admits any supplement thereto;
“Prospectus Regulation” means Commission Regulation (EC) No. 809/2004 of 29 April 2004 implementing the Directive as regards information contained in prospectuses as well as the format, incorporation by reference and publication of such prospectuses and dissemination of advertisements;
“prospectus rules” means the rules for the time being made by the Bank under section 51 of the Act of 2005;
“publication”, means publication in accordance with the applicable requirements of EU prospectus law;
“qualified investors” means-
(a) legal entities which are authorised or regulated to operate in the financial markets, including: credit institutions, investment firms, other authorised or regulated financial institutions, insurance companies collective investment schemes and their management companies pension funds and their management companies and commodity dealers,
(b) entities not so authorised or regulated as mentioned in paragraph (a) of this definition whose corporate purpose is solely to invest in securities,
(c) national and regional governments, central banks, international and supranational institutions exercising public or quasi-public functions such as the International Monetary Fund, the European Central Bank the European Investment Bank and other international organisations of a similar nature,
(d) other legal entities which do not meet two of the three conditions specified in the definition of “small and medium-sized enterprises” in this Regulation,
(e) natural persons and small and medium sized enterprises provided they are entered on the register maintained by the Bank pursuant to Regulation 3;
“regulated market” means a market as defined by Article 1(13) of Directive 93/22/EEC;
“relevant person” means an issuer, offeror or person seeking admission to trading as the case may be;
“securities” means transferable securities as defined by Article 1(4) of Directive 93/22/EEC with the exception of money market instruments as defined by Article 1(5) of Directive 93/22/EEC, having a maturity of less than 12 months;
“securities issued in a continuous or repeated manner” means issues on tap or at least two separate issues of securities of a similar type or class ( or both ) over a period of 12 months;
“small and medium-sized enterprises” means undertakings, which, according to their last annual or consolidated accounts, satisfy at least two of the following three conditions namely -
(a) an average number of employees during the financial year of less than 250;
(b) a total balance sheet not exceeding €43,000,000,
and
(c) an annual net turnover not exceeding €50,000,000;
“summary” means a summary of a prospectus referred to in Regulation 21;
“supplement” means a supplement to a prospectus referred to in Regulation 51;
“units of a collective investment undertaking” means securities issued by a collective investment undertaking as representing the rights of the participants in such an undertaking over its assets;
“working day” means any day of the week ( other than a Saturday or a Sunday ) but does not include a public holiday ( within the meaning of the Organisation of Working Time Act 1997 ) or a Good Friday.
(2) A word or expression that is used in these Regulations and is also used in the Directive shall have in these Regulations the same meaning as it has in the Directive unless the contrary intention appears.
(3) A reference in these Regulations -
(a) to any other enactment or to a Directive or Regulation of the Council or Commission of the European Communities shall, unless the context otherwise requires, be construed as a reference to that enactment Directive or Regulation as amended or extended by any other enactment or, as the case may be, Directive or Regulation of the Council or Commission of the European Communities, (including, in the case of an enactment, by a Regulation of these Regulations),
(b) a reference to a Regulation or Part is a reference to a Regulation or Part of these Regulations, unless it is indicated that reference to some other provision is intended,
and
(c) a reference to a paragraph, subparagraph or clause is a reference to a paragraph, subparagraph or clause of the provision in which the reference occurs, unless it is indicated that reference to some provision is intended.
(4) If the securities the subject of a public offer or admission to trading are of the type described in paragraph (c) of the definition of “Home Member State” in paragraph (1) the Home Member State shall be determined in accordance with that paragraph (c).
(5) In any case other than that referred to in paragraph (4), the Home Member State shall be determined (by reference to the issuer whose securities are being offered to the public or admitted to trading) in accordance with paragraph (a) or (b), as the case may be, of the definition of “Home Member State” in paragraph (1).
(6) For the purpose of the definition of “offer of securities to the public” in this Regulation “communication” shall include an invitation to treat.
(7) Where the total balance sheet amount of an undertaking falls to be determined for the purposes of the definition of “small and medium enterprises” in this Regulation and the accounts of the undertaking are denominated in a currency other than the Euro, the currency in which those accounts are stated shall be converted into the Euro at the rate prevailing at the end of the financial year to which they relate.
Register of Natural Persons and Small and Medium-Sized Enterprises as Qualified Investors
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paragraphs: In Regulations 4 to 7 -
“registrant” means a natural person or small or medium sized enterprise whose name is for the time being entered in the register;
“register” means the register referred to in Regulation 4(1).
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paragraphs: (1) The Bank shall establish and maintain a register in which there shall be entered the name of every natural person and every small and medium-sized enterprise who or which -
(a) applies in writing for inclusion on the register in accordance with the prospectus rules, and
(b) satisfies the conditions for inclusion on the register specified in paragraph (2) or (3), as appropriate.
(2) The conditions for inclusion on the register in respect of a natural person are as follows:
(a) he or she is resident in the State,
(b) he or she meets at least two of the following requirements -
(i) he or she has carried out transactions of a significant size on securities markets at an average frequency of, at least, 10 per quarter over the 4 quarters immediately prior to the application being made,
(ii) the value of his or her securities portfolio exceeds €0.5 million,
(iii) he or she works or has worked for at least one year in the financial sector in a professional position which requires knowledge of securities investment.
(3) The condition for inclusion on the register in respect of a small and medium-sized enterprise is that it has its registered office in the State.
(4) For the purposes of paragraph (2)(a) the question as to whether a natural person is resident in the State shall be determined in accordance with subsections (8) ( other than paragraph (b) thereof ), (9) and (10) of section 48 of the Companies (Amendment) ( No. 2 Act 1999.
(5) For the purposes of paragraph (2)(b)(i) the question as to whether a transaction is of significant size shall be determined in accordance with the prospectus rules.
(6) For the purposes of paragraph (2)(b)(iii) “financial sector” includes the entities referred to in paragraph (a) of the definition of “qualified investors” in Regulation 2.
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paragraphs: (1) The Bank may require a natural person or a small and medium-sized enterprise who or which applies for inclusion on the register to furnish such information or documents to the Bank as the Bank may reasonably specify in order to demonstrate that he or she or it satisfies the appropriate conditions referred to in Regulation 4.
(2) The Bank may require each registrant to demonstrate that he or she or it continues to satisfy the appropriate conditions referred to in Regulation 4, including, in the case of an enterprise, that it continues to fall within the definition of “small and medium-sized enterprises” in Regulation 2.
(3) For the purpose of the registrant's demonstrating the matters referred to in paragraph (2), pursuant to a requirement made of the registrant thereunder, Regulation 4(2)(b)(i) shall apply as if for “the 4 quarters immediately prior to the application being made” in that provision there were substituted “the 4 quarters immediately prior to the requirement being made under Regulation 5(2)”.
(4) The Bank shall delete from the register any registrant that fails to demonstrate to the Bank's reasonable satisfaction, pursuant to paragraph (2), that the registrant continues to satisfy the appropriate conditions referred to in Regulation 4, including, in the case of an enterprise, that it continues to fall within the definition of “small and medium-sized enterprises” in Regulation 2.
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paragraphs: Without prejudice to the Bank's obligations under the Data Protection Acts 1988 to 2003, the Bank shall -
(a) take due care in respect of the security of the information and data provided to it by a natural person or small and medium-sized enterprise applying for inclusion on the register,
(b) take appropriate measures to establish the bona fides of an issuer or offeror seeking to have made available to him, her or it information included on the register pursuant to Regulation 7,
(c) update promptly the information and data relating to a registrant on the register when instructed by a registrant to do so,
(d) upon notification in writing at any time from a registrant that the registrant no longer wishes to have his, her or its name included on the register the Bank shall, as soon as practicable after the notification delete the name from the register.
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paragraphs: (1) Subject to Regulation 6 (b), the Bank shall make the register available to issuers and offerors on such conditions as it may reasonably specify provided such conditions are not inconsistent with these Regulations or the Directive.
(2) Issuers and offerors shall only use the information made available to them under paragraph (1) for the purposes of making or contemplating the making of an offer of securities to be addressed to qualified investors in the State.
(3) An issuer or offeror who or which fails to comply with paragraph (2) shall be guilty of an offence.
PART 2
SECURITIES OUTSIDE THE AMBIT OF THESE REGULATIONS
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paragraphs: (1) These Regulations shall not apply to -
(a) units issued by collective investment undertakings other than the closed-end type,
(b) non-equity securities issued by a Member State or by one of a Member State's regional or local authorities, by public international bodies of which one or more Member States are members, by the European Central Bank or by the central banks of the Member States,
(c) shares in the capital of a central bank of a Member State,
(d) securities unconditionally and irrevocably guaranteed by a Member State or by one of a Member State's regional or local authorities,
(e) securities issued by associations with legal status or non-profit-making bodies, recognised by a Member State, with a view to their obtaining the means necessary to achieve their non-profit-making objectives,
(f) non-equity securities issued in a continuous or repeated manner by credit institutions provided that these securities -
(i) are not subordinated, convertible or exchangeable,
(ii) do not give a right to subscribe to or acquire other types of securities and that they are not linked to a derivative instrument,
(iii) materialise reception of repayable deposits,
(iv) are covered by a deposit guarantee scheme under Directive 94/19/EC of the European Parliament and of the Council on deposit-guarantee schemes,
(g) non-fungible shares of capital whose main purpose is to provide the holder with a right to occupy an apartment, or other form of immovable property or a part thereof and where the shares cannot be sold on without this right being given up;
(h) securities included in an offer where the offer expressly limits the amount of the total consideration for the offer to less than €2,500,000,
(i) “bostadsobligationer” issued repeatedly by credit institutions in Sweden whose main purpose is to grant mortgage loans, provided that -
(i) the “bostadsobligationer” issued are of the same series,
(ii) the “bostadsobligationer” are issued on tap during a specified issuing period,
(iii) the terms and conditions of the “bostadsobligationer” are not changed during the issuing period,
(iv) the sums deriving from the issue of the said “bostadsobligationer”, in accordance with the articles of association of the issuer, are placed in assets which provide sufficient coverage for the liability deriving from securities,
(j) non-equity securities issued in a continuous or repeated manner by credit institutions where the total consideration of the offer is less than €50,000,000, which limit shall be calculated over a period of 12 months, provided that these securities -
(i) are not subordinated, convertible or exchangeable,
(ii) do not give a right to subscribe to or acquire other types of securities and that they are not linked to a derivative instrument.
(2) For the purposes of paragraph (1)(e) an association or body is recognised by a Member State if it has been established by, under or pursuant to the national legislation of the Member State.
(3) No offer of securities by an offeror or issuer shall be deemed to fall within paragraph (1)(h) unless the amount of the total consideration for the offer when aggregated with the consideration for all previous offers of securities of the same type in the issuer concerned made by the same offeror or issuer within the period of 12 months expiring on the date the offer is made is less than €2,500,000 (but excluding for the purposes of such aggregation any offer of securities made prior to the commencement of these Regulations).
(4) For the purposes of any other enactment, it is declared that paragraph (3 provides the means by which the limit specified by paragraph (1)(h) is calculated.
(5) Notwithstanding subparagraph (b), (d), (h), (i) or (j) of paragraph (1), where the State is the Home Member State a relevant person may draw up a prospectus in respect of the securities mentioned in that subparagraph and submit it to the Bank for approval in accordance with these Regulations and the other provisions of Irish prospectus law.
PART 3
EXEMPTIONS FROM THE OBLIGATION TO PUBLISH A PROSPECTUS
Excluded Offers
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paragraphs: (1) The obligation to publish a prospectus under Regulation 12 shall not apply to an offer of securities in the State falling within one or more than one of the following subparagraphs -
(a) an offer of securities addressed solely to qualified investors,
(b) an offer of securities addressed to fewer than 100 persons, other than qualified investors,
(c) an offer of securities addressed to investors where the minimum consideration payable pursuant to the offer is at least €50,000 per investor, for each separate offer,
(d) an offer of securities whose denomination per unit amounts to at least €50,000,
(e) an offer of securities where the offer expressly limits the amount of the total consideration for the offer to less than €100,000.
(2) Any subsequent resale of securities which were previously the subject of an offer described in paragraph (1) shall be regarded as a separate offer for the purposes of determining whether it is an offer of securities to the public within the meaning of these Regulations.
(3) The obligation to publish a prospectus pursuant to Regulation 12 shall apply to the placement of securities through financial intermediaries, if none of subparagraphs (a) to (e) of paragraph (1) apply at the final placement.
(4) No offer of securities shall be deemed to come within paragraph (1)(e) unless the amount of the total consideration for the offer when aggregated with the consideration for all previous offers of securities of the same type in the issuer concerned made by the same offeror or issuer within the period of 12 months expiring on the date the offer is made is less than €100,000 (but excluding for the purpose of such aggregation any offer of securities made prior to the commencement of these Regulations).
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paragraphs: (1) The obligation to publish a prospectus pursuant to Regulation 12 shall not apply to offers of securities to the public in the State of the following types of securities -
(a) shares issued in substitution for shares of the same class already issued if the issuing of such new shares does not involve any increase in the issued capital,
(b) securities offered in connection with a takeover by means of an exchange offer, provided that a document is available containing information which is regarded by the Bank as being equivalent to that of a prospectus, taking into account the requirements of any Community act,
(c) securities offered, allotted or to be allotted in connection with a merger provided that a document is available containing information which is regarded by the Bank as being equivalent to that of a prospectus, taking into account the requirements of any Community act,
(d) shares offered, allotted or to be allotted free of charge to existing shareholders, and dividends paid out in the form of shares of the same class as the shares in respect of which such dividends are paid provided that a document is made available containing information on the number and nature of the shares and the reasons for and details of the offer,
(e) securities offered, allotted or to be allotted to existing or former directors or employees by their employer or by an affiliated undertaking which in either case has securities already admitted to trading on a regulated market and provided that a document is made available containing information on the number and nature of the securities and the reasons for and details of the offer; for the purposes of this subparagraph “affiliated undertaking” includes any parent undertaking or subsidiary undertaking of the employer or another subsidiary undertaking of that parent undertaking.
(2) The reference in paragraph (1)(e) to the offering or allotment of securities by an employer or an affiliated undertaking shall, in the case of such an offer or allotment that takes place for the purpose of an employees’ share scheme or an employee share ownership trust, be construed as a reference to such offering or allotment, whether effected directly or indirectly by the employer or the affiliated undertaking.
(3) In paragraph (2) -