Opinion of the Advocate General — ECLI:EU:C:2022:243
Date: 2022-03-31
Language of the case: Bulgarian
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary of the basis for the reference 
17. The subject matter of the main proceedings is an administrative offence possibly 
committed by Invest Fund Management AD in failing to comply with the 
obligation, in the event of any change to the essential elements included in the 
prospectus of the collective investment scheme, to update the prospectus and 
submit it to the FSC within a period of 14 days. 
18. The most important question that requires clarification is the meaning of the term 
‘essential elements’ of prospectuses used in Article 72 of Directive 2009/65/EC of 
the European Parliament and of the Council of 13 July 2009, as neither that 
secondary EU legal act nor the laws applicable in the Republic of Bulgaria contain 
a legal definition of the term. 
19. Thus a ruling by the Court of Justice of the European Union is needed on the 
meaning which the European legislature intended to give to the expression 
‘essential elements’ used in Article 72 of Directive 2009/65/EC of the European 
Parliament and of the Council of 13 July 2009. 
20. The supervisory authority is of the opinion that any change to the minimum 
information required in prospectuses necessitates their being updated in due time 
and it would therefore welcome clarification by the Court as to whether the 
provision of Article 69(2) of Directive 2009/65/EC of the European Parliament 
and of the Council of 13 July 2009 is to be interpreted as meaning that any change 
to the minimum information in prospectuses provided for in Schedule A of 
Annex I is covered in all cases by the term ‘essential elements’ within the 
meaning of Article 72 of the Directive, meaning that they must be updated in due 
time. 
INVEST FUND MANAGEMENT 
 
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21. The legal representative of Invest Fund Management AD is of the opinion that 
there is no need to update the prospectuses in this case as the newly elected board 
members are non-executive members and would not therefore be exercising any 
management function. This means that, if Question 2 is answered in the negative, 
a ruling by the Court of Justice of the European Union is needed [Or. 7] as to 
whether information about a change in the composition of the board of directors 
of a particular management company that concerns non-executive directors who 
are not assigned any management functions is included in the term ‘essential 
elements’ within the meaning of Article 72 of Directive 2009/65/EC of the 
European Parliament and of the Council of 13 July 2009. 
22. The legislation applicable in the Republic of Bulgaria provides for a separate 
penalty to be imposed on the management company for every failure to comply 
with the obligation to update essential elements. However, Article 99a(r) of 
Directive 2009/65/EC of the European Parliament and of the Council of 13 July 
2009 requires the Member States to ensure that their laws, regulations or 
administrative provisions transposing this Directive provide for penalties, in 
particular when, for each of the common funds that it manages, a management 
company repeatedly fails to comply with obligations concerning information to be 
provided to investors imposed in accordance with the national provisions 
transposing Articles 68 to 82. The Court of Justice of the European Union 
therefore needs to clarify whether that provision is to be interpreted as meaning 
that the management company can only be held liable in the event of repeated 
non-compliance with the obligation to update the essential elements of the 
prospectus, which would incur a single penalty. 
On those grounds, the District Court, Sofia [...] 
MAKES THE FOLLOWING ORDER: 
The FOLLOWING QUESTIONS ARE REFERRED TO THE COURT OF 
JUSTICE OF THE EUROPEAN UNION FOR A PRELIMINARY RULING 
pursuant to the second paragraph of Article 267 of the Treaty on the Functioning 
of the European Union: 
1. What meaning did the European legislature intend to give to the term 
‘essential elements’ of the prospectus within the meaning of Article 72 of 
Directive 2009/65/EC of the European Parliament and of the Council of 13 July 
2009 on the coordination of laws, regulations and administrative provisions 
relating to undertakings for collective investment in transferable securities ([...] OJ 
2009 L 302, p. 32)? 
2. Is Article 69(2) of Directive 2009/65/EC of the European Parliament and of 
the Council of 13 July 2009 to be interpreted as meaning that any change [Or. 8] 
to the minimum information in prospectuses provided for in Schedule A of 
Annex I is always covered by the term ‘essential elements’ within the meaning of 
Article 72 of the Directive, so that these must be updated in due time? 
REQUEST FOR A PRELIMINARY RULING OF 17 SEPTEMBER 2020 – CASE C-473/20 
 
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3. If Question 2 is answered in the negative, is it to be assumed that 
information about a change in the composition of the board of directors of a 
particular management company that concerns non-executive members who are 
not assigned any management functions is included in the term ‘essential 
elements’ within the meaning of Article 72 of Directive 2009/65/EC of the 
European Parliament and of the Council of 13 July 2009? 
4. Is Article 99а(r) of Directive 2009/65/EC of the European Parliament and of 
the Council of 13 July 2009 to be interpreted as meaning that it is only permissible 
to impose a penalty on a management company (for each of the investment funds 
managed by it) in the event of repeated non-compliance with obligations 
concerning information to be provided to investors imposed in accordance with 
the national provisions transposing Articles 68 to 82 of Directive 2009/65/EC of 
the European Parliament and of the Council of 13 July 2009? 
The order is final and not open to appeal. 
[Formalities concerning transmission of copies of procedural documents to the 
Court and certified copies of the order to the parties]