COMMISSION DELEGATED REGULATION (EU) 2019/979

of 14 March 2019

supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council with regard to regulatory technical standards on key financial information in the summary of a prospectus, the publication and classification of prospectuses, advertisements for securities, supplements to a prospectus, and the notification portal, and repealing Commission Delegated Regulation (EU) No 382/2014 and Commission Delegated Regulation (EU) 2016/301

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 admitted to trading on a regulated market, and repealing Directive 2003/71/EC (1), and in particular Articles 7(13), 21(12), 21(13), 22(9), 23(7) and 25(7) thereof,

Whereas:

(1) The key financial information in the summary of a prospectus should present the key financial figures that provide investors with a succinct overview of the issuer’s assets, liabilities and profitability, as well as any other key financial information that is relevant for investors to make a preliminary assessment of the financial performance and financial position of the issuer. In order to ensure that this information is concise and relevant, it is therefore necessary to identify a limited number of disclosures, specify their layout and calibrate the financial information to take account of different types of issuers and securities.

(2) In order to avoid misleading investors, issuers should be entitled to include specific additional disclosures, including alternative performance measures, where they consider that the required disclosures do not provide a clear picture of their performance and financial position. However, to ensure that investors focus primarily on the figures stemming from financial statements, alternative performance measures should not be given more prominence in the prospectus than the figures extracted from the historical financial information.

(3) In order to reduce compliance costs and administrative burdens on issuers, the key financial information in the summary of a prospectus, including additional line items and alternative performance measures, should reproduce information disclosed in the body of the prospectus.

(4) It is appropriate that the key financial information in the summary of a prospectus is adapted to the economic activity of the issuer, its industrial sector, the major line items of its financial statements and the type of securities being issued or offered. However, it is not possible to provide specific templates for all types of issuers.

(5) To avoid misleading investors and ensure consistency with the information included in the prospectus, where the historical financial information included in the prospectus is restated in case of material errors contained in the financial statements or changes in accounting standards, the key financial information in the summary of a prospectus should reflect that restated historical financial information.

(6) Where an issuer has a complex financial history, it should, where appropriate, present both its financial information and the financial information relating to another entity or entities within a standalone section in the summary of the prospectus.

(7) Investors need clarity as regards which information forms part of the prospectus and to whom an offer of securities to the public is addressed. Therefore, with the exception of information incorporated by reference, where the prospectus contains hyperlinks, it should inform investors that the information on the related websites is not part of the prospectus and has not been scrutinised or approved by the competent authority. Furthermore, measures should be established to prevent websites used for the publication of the prospectus targeting residents in Member States or third countries where the offer of securities to the public does not take place, such as by including on the website a statement identifying the addressees of the offer.

(8) Reporting and publication of data in an electronic, machine-readable format facilitates the efficient use and exchange of that data. The list of data fields to be reported to the European Securities and Markets Authority (ESMA) for the classification of prospectuses should therefore be specified and the use of XML format templates should be required to ensure that such fields are machine-readable. The list of data should be sufficiently comprehensive to ensure that ESMA meets its mandate under Article 47 of Regulation (EU) 2017/1129 to publish a yearly report containing statistics on the prospectuses approved and notified in the Union, as well as an analysis of trends taking into account the type of issuers and the type of issuances.

(9) To avoid misleading retail investors during the process of marketing any security proposed for public offers or admission to trading on a regulated market, an advertisement should not purport to be the principal information document. Accordingly and in order to avoid confusion with the prospectus, advertisements should not be inappropriately long.

(10) Advertisements relating to an offer of securities to the public or an admission to trading on a regulated market can become inaccurate or misleading where a significant new factor, material mistake or material inaccuracy relating to the information in the corresponding prospectus arises. Requirements should be established to ensure that advertisements are amended without undue delay where they become inaccurate or misleading due to such a new factor, material mistake or material inaccuracy.

(11) To allow investors to take informed investment decisions, the information contained in advertisements should not present an unbalanced view for example by presenting negative aspects of such information with less prominence than the positive aspects.

(12) As alternative performance measures can disproportionally influence investment decisions, information about an offer to the public or an admission to trading on a regulated market circulated outside the prospectus should not be permitted to contain such measures, unless they are included in the body of the prospectus.

(13) Competent authorities in host Member States do not scrutinise prospectuses. Therefore, to ensure that investors in host Member States are adequately protected, when the competent authority of the host Member State seeks the assistance of the competent authority in the home Member State, it should communicate the information that is relevant for the competent authority in the home Member State to assess the consistency of the advertisement with the content of the prospectus. Such communication should occur within the appropriate timeframe to ensure that investors in host Member States are not penalised by the fact that host competent authorities do not scrutinise prospectuses and have sufficient time to analyse the underlying public offering. The competent authority in the host Member State should be informed to the degree necessary to exercise control over the compliance of advertising activity in its jurisdiction.

(14) To ensure a consistent application of Regulation (EU) 2017/1129 and to take account of technical developments on financial markets, it is necessary to specify situations where the publication of supplements to the prospectus is required. It is not possible to identify all situations where a supplement to the prospectus is required as this may depend on the issuer and securities involved. Therefore, it is appropriate to specify the minimum situations where a supplement is required.

(15) Annual audited financial statements are crucial for investors when making investment decisions. To ensure that investors base their investment decisions on the most recent financial information, it is necessary to require the publication of a supplement incorporating new annual audited financial statements of issuers of equity securities and issuers of underlying shares where depository receipts are published after the approval of the prospectus.

(16) Given that profit forecasts and profit estimates can influence an investment decision, it is necessary to publish a supplement containing any amendments to implicit or explicit figures constituting profit forecasts or profit estimates or the withdrawal of a profit forecast or profit estimate already included in the prospectus. For the same reason, in case of equity securities and depositary receipts, it is also necessary to produce a supplement to the prospectus where a new profit forecast or profit estimate has been published before the end of the offer period or before admission to trading.

(17) Information concerning the identity of the main shareholders or any controlling entity of the issuer is vital for an informed assessment of the issuer. However, change of control of the issuer is particularly significant where the offer refers to equity securities, which are generally more price sensitive to changes of issuers. Therefore, a supplement should be published where there is a change of control of an issuer of equity securities or an issuer of underlying shares of depository receipts.

(18) It is essential that potential investors assessing an outstanding offer of equity securities are in a position to compare the terms and conditions of such an offer with the price or exchange terms attached to any public takeover bid announced during the offer period. Moreover, the result of a public takeover bid is significant for the investment decision as investors need to know whether it implies or not a change of control of the issuer. It is therefore necessary to publish a supplement in the case of any new public takeover bid.

(19) Where the working capital statement is no longer valid, investors are unable to make a fully informed investment decision about the issuer’s financial situation. Investors should be in a position to reassess their investment decisions in light of the new information on the issuer’s ability to access cash and other available liquid resources to meet its liabilities. In order to do so, a supplement is necessary.

(20) After the approval of a prospectus, an issuer or offeror may decide to offer the securities in Member States other than those referred to in the prospectus, or to apply for admission to trading of the securities on regulated markets in Member States other than those provided for in the prospectus. Information about such offers and admissions therein is important for the investor’s assessment of certain aspects of the issuer’s securities and it is therefore appropriate to require a supplement in such cases.

(21) The financial position or the business of the entity is likely to be affected by a significant financial commitment. Therefore, investors should be entitled to receive additional information on the consequences of that commitment in a supplement to the prospectus.

(22) An increase of the aggregate nominal amount of an offering programme provides information on issuers’ increased financing needs or an increase in demands for the issuers’ securities. In such a case, a supplement to the prospectus should be published.

(23) Relevant competent authorities should receive in a timely manner via the notification portal the prospectus and accompanying data, together with a certificate of approval that states that the prospectus has been drawn up in accordance with Regulation (EU) 2017/1129. ESMA should ensure that the notification portal preserves the security and integrity of the information exchanged between competent authorities. Competent authorities remain responsible for the submission of such information. In order to enable a smoothly and timely operation of the notification portal, it is necessary to specify the accompanying data that is to be uploaded to that notification portal.

(24) In accordance with Article 10 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (2), ESMA has conducted open public consultations on such draft regulatory technical standards, analysed the potential related costs and benefits and requested the opinion of the Securities and Markets Stakeholder Group established in accordance with Article 37 of that Regulation. However, ESMA has not consulted that stakeholder group on the draft regulatory technical standards on the technical arrangements for the notification portal as those arrangements only affect ESMA and national competent authorities.

(25) This Regulation is based on the draft regulatory technical standards submitted by ESMA to the Commission.

(26) Since this Regulation replaces Commission Delegated Regulation (EU) No 382/2014 (3) and Commission Delegated Regulation (EU) 2016/301 (4), those Delegated Regulations become obsolete and should therefore be repealed.

(27) As this Regulation supplements provisions of Regulation (EU) 2017/1129, its application should be deferred until the date of application of Regulation (EU) 2017/1129,

HAS ADOPTED THIS REGULATION:

CHAPTER I

KEY FINANCIAL INFORMATION IN THE PROSPECTUS SUMMARY

SECTION 1

Content of the key financial information in the prospectus summary

Article 1 Minimum content of the key financial information in the summary of a prospectus 1. The key financial information in the summary of a prospectus shall be made up of the financial information laid down in the Annexes to Commission Delegated Regulation 2019/980 (5). 2. Where any information referred to in the relevant tables set out in Annexes I to VI to this Regulation is not included in the financial statements of the issuer, the issuer shall disclose a corresponding item from its financial statements instead. 3. The issuer may include additional line items or alternative performance measures in the summary of a prospectus where these are key financial information on the issuer or on the securities being offered or admitted to trading on a regulated market. For the purposes of the first sentence, alternative performance measures shall be financial measures of historical or future financial performance, financial position or cash flows, other than financial measures defined in the applicable financial reporting framework. 4. Issuers who do not fall under any of the types of issuers identified in Articles 2 to 8 shall present the key financial information referred to in the tables that they consider correspond most closely to the type of securities issued. 5. The key financial information shall be presented for the number of years required by Delegated Regulation 2019/980 for the type of issuance and the type of securities being issued.

Article 2 Key financial information for non-financial entities issuing equity securities Where the issuer is a non-financial entity issuing equity securities, the summary of a prospectus shall contain the key financial information referred to in the tables set out in Annex I.

Article 3 Key financial information for non-financial entities issuing non-equity securities Where the issuer is a non-financial entity issuing non-equity securities, the summary of a prospectus shall contain the key financial information referred to in the tables set out in Annex II.

Article 4 Key financial information for credit institutions Where the issuer is a credit institution, the summary of a prospectus shall contain the key financial information referred to in the tables set out in Annex III.

Article 5 Key financial information for insurance companies Where the issuer is an insurance company, the summary of a prospectus shall contain the key financial information referred to in the tables set out in Annex IV.

Article 6 Key financial information for special purpose vehicles issuing asset backed securities Where the issuer is a special purpose vehicle issuing asset backed securities, the prospectus summary shall contain the key financial information referred to in the tables set out in Annex V.

Article 7 Key financial information for closed end funds Where the issuer is a closed end fund, the summary of a prospectus shall contain the key financial information referred to in the tables set out in Annex VI.

Article 8 Key financial information for guarantors Where a guarantee is attached to the securities, the key financial information on the guarantor shall be presented as if the guarantor were the issuer of the same type of security that is the subject of the guarantee using the tables set out in Annexes I to VI. Where the guarantee is given for asset-backed securities, the key financial information on the guarantor shall be presented as if the guarantor were the issuer of the underlying securities.

SECTION 2

Format of the key financial information in the prospectus summary

Article 9 Format of the key financial information in the summary of a prospectus 1. The key financial information shall be presented in tabular format in accordance with the tables of Annexes I to VI to this Regulation. 2. Any historical financial information in the summary of a prospectus, which is not extracted from the financial statements, shall be identified as such. 3. Where pro forma information to be included in the summary of a prospectus affects the key financial information referred to in the relevant table of Annexes I to VI to this Regulation, that pro forma information shall be presented in additional columns in the tables set out in Annexes I to VI to this Regulation or as a separate table. Where necessary for its understanding, the pro forma information shall be accompanied by a brief explanation of the figures presented in the additional columns or separate table. Where in the case of a significant gross change only qualitative information is included in the prospectus, a statement to that effect shall be included in the summary of that prospectus. 4. Where the issuer has a complex financial history as set out in Article 18 of Delegated Regulation 2019/980, the key financial information in the summary of the prospectus shall be presented in a manner consistent with the prospectus and using the relevant tables in Annexes I to VI to this Regulation.

CHAPTER II

PUBLICATION OF THE PROSPECTUS

Article 10 Publication of the prospectus 1. Where a prospectus, whether a single document or consisting of separate documents, contains hyperlinks to websites, it shall include a statement to the effect that the information on the websites does not form part of the prospectus and has not been scrutinised or approved by the competent authority. That requirement shall not apply to hyperlinks to information that is incorporated by reference. 2. Where a prospectus is published in accordance with Article 21(2) of Regulation (EU) 2017/1129, measures shall be taken on websites used for the publication of the prospectus to avoid targeting residents of Member States or third countries other than those where the securities are offered to the public.

CHAPTER III

MACHINE READABLE DATA FOR THE CLASSIFICATION OF PROSPECTUSES

Article 11 Data for classification of prospectuses When providing ESMA with an electronic copy of an approved prospectus, including any supplements thereto and final terms where applicable, the competent authority shall also provide to ESMA with the relevant accompanying data for the classification of prospectuses in accordance with the tables set out in Annex VII to this Regulation.

Article 12 Practical arrangements to ensure the machine readability of the data The competent authority shall provide the accompanying data referred to in Article 11 in a common XML format and in accordance with the format and standards set out in the tables in Annex VII.

CHAPTER IV

ADVERTISEMENTS

Article 13 Identification of the prospectus Where the issuer, the offeror or the person asking for admission to trading on a regulated market is subject to the obligation to draw up a prospectus, an advertisement shall clearly identify that prospectus by: (a) clearly identifying the website where the prospectus is published, or will be published, where the advertisement is disseminated in written form and by means other than electronic means; (b) including a hyperlink to the prospectus and to the relevant final terms of a base prospectus where the advertisement is disseminated in written form by electronic means, or by including a hyperlink to the page of the website where the prospectus will be published if the prospectus has not yet been published; (c) including accurate information on where the prospectus may be obtained, and accurate information on the offer of securities or the admission to trading on a regulated market to which it relates, where the advertisement is disseminated in a form or by means not falling within the scope of points (a) or (b).

Article 14 Required content 1. Advertisements disseminated to potential retail investors shall include the following elements: (a) the word ‘advertisement’, in a prominent manner. Where an advertisement is disseminated in an oral form, the purpose of the communication shall be clearly identified at the beginning of the message; (b) a statement that the approval of the prospectus should not be understood as an endorsement of the securities offered or admitted to trading on a regulated market where the advertisement contains a reference to a prospectus approved by a competent authority; (c) a recommendation that potential investors read the prospectus before making an investment decision in order to fully understand the potential risks and rewards associated with the decision to invest in the securities where the advertisement contains a reference to a prospectus approved by a competent authority; (d) the comprehension alert required pursuant to point (b) of Article 8(3) of Regulation (EU) No 1286/2014 of the European Parliament and of the Council (6) where: (i) the advertisement relates to complex securities other than the financial instruments referred to in points (i), (ii) and (vi) of Article 25(4)(a) of Directive 2014/65/EU of the European Parliament and of the Council (7) and; (ii) the comprehension alert is, or will be, included in the summary of the prospectus. 2. Advertisements in written form, which are disseminated to potential retail investors, shall be sufficiently different in format and length from the prospectus that no confusion with the prospectus is possible.

Article 15 Dissemination of advertisements 1. Advertisements disseminated to potential investors shall be amended where: (a) a supplement to the prospectus is subsequently published in accordance with Article 23 of Regulation (EU) 2017/1129; (b) the significant new factor, material mistake or material inaccuracy mentioned in the supplement renders the previously disseminated advertisement materially inaccurate or misleading. The first subparagraph shall not apply after the final closing of the offer period to the public or after the time when trading on a regulated market begins, whichever occurs later. 2. Advertisements amended as referred to in paragraph 1 shall be disseminated to potential investors without undue delay following the publication of the supplement to the prospectus and shall contain all of the following: (a) a clear reference to the inaccurate or misleading version of the advertisement; (b) an explanation that the advertisement has been amended as it contained materially inaccurate or misleading information; (c) a clear description of the differences between the two versions of the advertisement. 3. With the exception of orally disseminated advertisements, advertisements amended pursuant to paragraph 1 shall be disseminated through at least the same means as the previous advertisement.

Article 16 Information concerning offers of securities 1. Information disclosed in oral or written form concerning an offer of securities to the public or an admission to trading on a regulated market, whether as an advertisement or for other purposes, shall not: (a) contradict the information in the prospectus; (b) refer to information which contradicts the information in the prospectus; (c) present the information in the prospectus in a materially unbalanced way, including by way of presentation of negative aspects of such information with less prominence than the positive aspects, omission or selective presentation of certain information; (d) contain alternative performance measures unless they are contained in the prospectus. 2. For the purposes of the paragraph 1, information in the prospectus shall consist of either information included in the prospectus, where already published, or information to be included in the prospectus, where the prospectus is to be published at a later date. 3. For the purposes of point (d) of the paragraph 1, alternative performance measures shall consist of financial measures of historical or future financial performance, financial position or cash flows, other than financial measures defined in the applicable financial reporting framework.

Article 17 Procedure for the cooperation between competent authorities 1. Where the competent authority of a Member State in which an advertisement is disseminated believes that the content of that advertisement is inconsistent with the information in the prospectus, it may request the assistance of the competent authority of the home Member State. Where requested, the competent authority in which the advertisement is disseminated shall communicate the following to the competent authority of the home Member State: (a) its reasons for believing that the content of the advertisement is inconsistent with the information in the prospectus; (b) the relevant advertisement and, where necessary, a translation of the advertisement in the language of the prospectus or in a language customary in the sphere of international finance. 2. The competent authority of the home Member State shall transmit to the competent authority in which the advertisement is disseminated as soon as possible the results of its assessment of the consistency of the advertisement with the information in the prospectus.

CHAPTER V

SUPPLEMENTS TO THE PROSPECTUS

Article 18 Publication of a supplement to the prospectus 1. A supplement to the prospectus shall be published where: (a) new annual audited financial statements are published by any of the following: (i) an issuer where a prospectus relates to equity securities; (ii) an issuer of the underlying shares or other transferable securities equivalent to shares in case of securities referred to in Articles 19(2), 19(3) or 20(2) of Delegated Regulation 2019/980; (iii) an issuer of the underlying shares of depository receipts referred to in Articles 6 and 14 of Delegated Regulation 2019/980; (b) an issuer has published a profit forecast or estimate following the approval of the prospectus, where a profit forecast or estimate is required to be included in the prospectus pursuant to Delegated Regulation 2019/980; (c) an amendment to, or a withdrawal of, a profit forecast or a profit estimate is included in the prospectus; (d) a change in control occurs in respect of any of the following: (i) an issuer where a prospectus relates to equity securities; (ii) an issuer of the underlying shares or other transferable securities equivalent to shares where a prospectus relates to securities referred to in Articles 19(2), 19(3) or 20(2) of Delegated Regulation 2019/980; (iii) an issuer of the underlying shares of depository receipts referred to in Articles 6 and 14 of Delegated Regulation 2019/980; (e) third parties make a new takeover bid as defined in Article 2(1)(a) of Directive 2004/25/EC of the European Parliament and of the Council (8) or the result of any takeover bid becomes available in respect of any of the following type of securities: (i) the equity of the issuer where a prospectus relates to equity securities; (ii) the equity of the issuer of the underlying shares or other transferable securities equivalent to shares where a prospectus relates to securities referred to in Articles 19(2), 19(3) or 20(2) of Delegated Regulation 2019/980; (iii) the equity of the issuer of the underlying shares of depository receipts where a prospectus is drawn up in accordance with Articles 6 and 14 of Delegated Regulation 2019/980; (f) the working capital statement included in a prospectus becomes sufficient or insufficient for the issuer’s present requirements, in relation to: (i) equity securities; (ii) securities which are convertible or exchangeable as referred to in Articles 19(2) and 19(3) of Delegated Regulation 2019/980; (iii) depository receipts issued over shares as referred to in Articles 6 and 14 of Delegated Regulation 2019/980. (g) an issuer is seeking admission to trading on at least one additional regulated market in at least one additional Member State or is intending to make an offer of securities to the public in at least one additional Member State that is not mentioned in the prospectus; (h) in the case of a prospectus relating to equity securities or to other securities referred to in Articles 19(2), 19(3) or 20(2) of Delegated Regulation 2019/980, a new significant financial commitment is likely to give rise to a significant gross change within the meaning of Article 1(e) of that Delegated Regulation; (i) the aggregate nominal amount of the offering programme is increased.

CHAPTER VI

TECHNICAL ARRANGEMENTS FOR THE FUNCTIONING OF THE NOTIFICATION PORTAL

Article 19 Upload of documents and accompanying data When uploading any documents referred to in Article 25(6) of Regulation (EU) 2017/1129 into the notification portal, the competent authority shall ensure those documents are in a searchable electronic format that cannot be modified and are accompanied by the data relating to those documents as specified in the tables of Annex VII to this Regulation in a common XML format.

Article 20 Processing and notification of documents and accompanying data 1. ESMA shall ensure that the notification portal automatically processes and checks all uploaded documents and accompanying data and notifies the uploading competent authority of whether the upload was successful and whether the upload contained any error. 2. ESMA shall ensure that the notification portal sends notifications of uploaded documents and accompanying data to the relevant competent authorities.

Article 21 Download of documents and accompanying data ESMA shall ensure that the notification portal makes any uploaded documents and accompanying data to the relevant competent authorities.

CHAPTER VII

FINAL PROVISIONS

Article 22 Repeal Delegated Regulation (EU) No 382/2014 is repealed. Delegated Regulation (EU) 2016/301 is repealed.

Article 23 Entry into force This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 21 July 2019.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 14 March 2019. For the Commission The President Jean-Claude JUNCKER

(1) OJ L 168, 30.6.2017, p. 12.

(2) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

(3) Commission Delegated Regulation (EU) No 382/2014 of 7 March 2014 supplementing Directive 2003/71/EC of the European Parliament and of the Council with regard to regulatory technical standards for publication of supplements to the prospectus (OJ L 111, 15.4.2014, p. 36).

(4) Commission Delegated Regulation (EU) 2016/301 of 30 November 2015 supplementing Directive 2003/71/EC of the European Parliament and of the Council with regard to regulatory technical standards for approval and publication of the prospectus and dissemination of advertisements and amending Commission Regulation (EC) No 809/2004 (OJ L 58, 4.3.2016, p. 13).

(5) Commission Delegated Regulation 2019/980 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the format, content, scrutiny and approval of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Commission Regulation (EC) No 809/2004 (See page 26 of this Official Journal).

(6) Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) (OJ L 352, 9.12.2014, p. 1).

(7) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).

(8) Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ L 142, 30.4.2004, p. 12-23).