Proposal for a Directive of the European Parliament and of the Council amending Directive 2004/109/EC relating to the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market as regards the implementing powers conferred on the Commission
Date: 2006-12-22
Institutions: European Commission
Subjects: EU law, consumer information, dissemination of information, investment, official document, official market, operation of the Institutions, publication, securities, stock exchange, stock-exchange listing

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.12.2006 
COM(2006) 909 final 

2006/0282 (COD) 

Proposal for a 

Directive of the European Parliament and of the Council 

amending 

Directive 2004/109/EC relating to the harmonisation of transparency requirements in 
relation to information about issuers whose securities are admitted to trading on a 
regulated market as regards the implementing powers conferred on the Commission 

(presented by the Commission) 

EN 

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2006/0282 (COD) 

Proposal for a 

Directive of the European Parliament and of the Council 

amending 

Directive 2004/109/EC relating to the harmonisation of transparency requirements in 
relation to information about issuers whose securities are admitted to trading on a 
regulated market as regards the implementing powers conferred on the Commission 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
44 and 95 thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Economic and Social Committee2, 

Having regard to the opinion of the European Central Bank, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty, 

Whereas: 

(1) 

(2) 

Directive  2004/109/EC  of  the  European  Parliament  and  of  the  Council  of  15 
December  2004  on  the  harmonisation  of  transparency  requirements  in  relation  to 
information  about  issuers  whose  securities  are  admitted  to  trading  on  a  regulated 
market and amending Directive 2001/34/EC3 provides that certain measures are to be 
adopted  in  accordance  with  Council  Decision  1999/468/EC  of  28  June  1999  laying 
down  the  procedures  for  the  exercise  of  implementing  powers  conferred  on  the 
Commission4. 

Decision 1999/468/EC has been amended by Decision 2006/512/EC which introduced 
a  regulatory  procedure  with  scrutiny  to  be  used  for  the  adoption  of  implementing 
measures  of  general  scope  which  seek  to  amend  non-essential  elements  of  a  basic 
instrument adopted in accordance with the procedure referred to in Article 251 of the 
Treaty,  inter  alia  by  deleting  some  of  those  elements  or  by  supplementing  the 
instrument by the addition of new non-essential elements.  

1 
2 
3 
4 

OJ C , , p. . 
OJ C , , p. . 
OJ L 390, 31.12.2004, p.38. 
OJ L184, 17.7.1999, p.23 . Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p.11). 

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(3) 

(4) 

(5) 

In accordance with the joint statement of the European Parliament, the Council and the 
Commission5 on Decision 2006/512/EC, instruments which are already in force must 
be  adjusted  in  accordance  with  the  applicable  procedures.  That  statement  indicates  a 
list  of  instruments  which  should  be  adjusted  as  a  matter  of  urgency,  including 
Directive 2004/109/EC. 

In  particular  power  should  be  conferred  on  the  Commission  to  adopt  measures 
necessary  for  the  implementation  of  Directive  2004/109/EC  in  order  to  clarify  the 
technical aspects of some of the definitions provided under that Directive, notably the 
maximum  length  of  the  short  settlement  cycle,  the  calendar  of  trading  days,  the 
circumstances under which a person should have learnt of the acquisition or disposal 
of voting rights, the conditions of independence to be respected by market makers, by 
management  companies;  in  order  to  take  account  of  technical  developments  in 
financial  markets,  notably  to  ensure  the  uniform  application  of  the  requirement 
regarding  the  public  availability  of  the  annual  financial  report  and  of  the  half-yearly 
financial  report;  to  clarify  the  nature  of  the  auditor's  review,  to  define  the  minimum 
content  of  the  condensed  set  of  solo  financial  statements;  to  elaborate  further  the 
procedures  for  the  notification  and  disclosure  of  major  holdings  as  well  as  the 
procedures for filing regulated information with the competent authority of the issuer's 
home Member State; to define minimum standards for the dissemination of regulated 
information and for the setting up of storage mechanisms. Since those measures are of 
general scope and are designed to supplement Directive 2004/109/EC by the addition 
of  new  non-essential  elements,  they  should  be  adopted  in  accordance  with  the 
regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC 
as amended by Decision 2006/512/EC.  

Directive  2004/109/EC  provided  for  a  time  restriction  concerning  the  implementing 
powers  conferred  to  the  Commission.  In  their  joint  statement  on  Decision 
2006/512/EC, the European Parliament, the Council and the Commission have stated 
that  Decision  2006/512/EC  provides  a  horizontal  and  satisfactory  solution  to  the 
European  Parliament's  wish  to  scrutinise  the  implementation  of  instruments  adopted 
under the co-decision procedure and that, accordingly, implementing powers should be 
conferred  on  the  Commission  without  time-limit.  The  European  Parliament  and 
Council also declared that they would make sure that the proposals aimed at repealing 
the  provisions  in  the  instruments  that  provide  for  a  time-limit  on  the  delegation  of 
implementing powers to the Commission are adopted as rapidly as possible. Following 
the  introduction  of  the  regulatory  procedure with  scrutiny,  the  provision  establishing 
that time restriction in Directive 2004/109/EC should be deleted 

(6) 

Directive 2004/109/EC should therefore be amended accordingly. 

(7) 

Since  the  amendments  to  be  made  to  Directive  2004/109/EC  are  adjustments  of  a 
technical nature which only concern the committee procedure they do not need to be 
transposed by the Member States. It is therefore not necessary to lay down provisions 
to that effect, 

5 

OJ C255, 21.10.2006, p. 1 

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HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 2004/109/EC is hereby amended as follows: 

(1) 

Article 2(3) is replaced by the following: 

“3.  In  order  to  take  account  of  technical  developments  on  financial  markets  and  to 
ensure the uniform application of paragraph 1, the Commission shall, in accordance 
with  the  procedures  referred  to  in  paragraphs  (2)  and  (2a)  of  Article  27,  adopt 
implementing measures concerning the definitions set out in paragraph 1. 

The Commission shall, in particular: 

(a)  establish,  for  the  purposes  of  paragraph  1(i)(ii),  the  procedural  arrangements  in 
accordance with which an issuer may make the choice of the home Member State;  

(b)  adjust,  where  appropriate  for  the  purposes  of  the  choice  of  the  home  Member 
State referred to in paragraph 1 (i)(ii), the three-year period in relation to the issuer's 
track record in the light of any new requirement under Community law concerning 
admission to trading on a regulated market; 

(c) establish, for the purposes of paragraph 1(l), an indicative list of means which are 
not  to  be  considered  as  electronic  means,  thereby  taking  into  account  Annex  V  to 
Directive  98/34/EC  of  the  European  Parliament  and  of  the  Council6  in  accordance 
with the procedure referred to in Article 27(2). 

The measures referred to in points (a) and (b) of the second subparagraph, designed 
to  amend  non-essential  elements  of  this  Directive  by  supplementing  it,  shall  be 
adopted  in  accordance  with  the  regulatory  procedure  with  scrutiny  referred  to  in 
Article 27(2a). 

(2) 

Article 4(6) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  27(2)”  are 
deleted; 

(b) 

the following sentence is added:  

“Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 27(2a).” 

(3) 

Article 5(6) is amended as follows: 

(a) 

in the first subparagraph the terms “in accordance with the procedure referred 
to in Article 27(2)” are deleted; 

6 

OJ L 204, 21.7.1998 

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(b) 

the following sentence is added:  

“Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 27(2a).” 

(c) 

In the third subparagraph the following sentence is added: 

“That measure, designed to amend non-essential elements of this Directive, shall be 
adopted  in  accordance  with  the  regulatory  procedure  with  scrutiny  referred  to  in 
Article 27(2a).” 

(4) 

Article 9 (7) is replaced by the following:  

"7. The Commission shall adopt implementing measures in order to take account of 
technical developments on financial markets and to ensure the uniform application of 
paragraphs  2,  4  and  5  of  this  Article.  Those  measures,  designed  to  amend  non-
essential  elements  of  this  Directive  by  supplementing  it,  shall  be  adopted  in 
accordance with the regulatory procedure with scrutiny referred to in Article 27(2a).  

The  Commission  shall,  in  accordance  with  the  procedure  referred  to  in  Article 
27(2a),  specify  the  maximum  length  of  the  'short  settlement  cycle'  referred  to  in 
paragraph  4  of  this  Article,  as  well  as  the  appropriate  control  mechanisms  by  the 
competent authority of the home Member State. Those measures, designed to amend 
non-essential  elements  of  this  Directive  by  supplementing  it,  shall  be  adopted  in 
accordance with the regulatory procedure with scrutiny referred to in Article 27(2a). 

In addition, the Commission may draw up a list of the events referred to in paragraph 
2, in accordance with the procedure referred to in Article 27(2).” 

(5) 

Article 12(8) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  27(2)”  are 
deleted; 

(b) 

the following subparagraph is added:  

“Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 27(2a).” 

(6) 

Article 13(2) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  27(2)”  are 
deleted; 

(b) 

the following subparagraph is added:  

“Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 27(2a).” 

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(7) 

Articles 14(2), 17(4)and 18(5) are amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  27(2)”  are 
deleted; 

(b) 

the following sentence is added:  

“Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 27(2a).” 

(8) 

Article 19(4) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  27(2)”  are 
deleted; 

(b) 

the following subparagraph is added:  

“The measures referred to in the first and second subparagraphs, designed to amend 
non-essential  elements  of  this  Directive  by  supplementing  it,  shall  be  adopted  in 
accordance with the regulatory procedure with scrutiny referred to in Article 27(2a).” 

(9) 

Article 21(4) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  27(2)”  are 
deleted; 

(b) 

the following subparagraph is added:  

“The  measures  referred  to  in  the  first,  second  and  third  subparagraphs,  designed  to 
amend non-essential elements of this Directive by supplementing it, shall be adopted 
in  accordance  with  the  regulatory  procedure  with  scrutiny  referred  to  in  Article 
27(2a).” 

(10)  Article 22(2) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  27(2)”  are 
deleted; 

(b) 

the following sentence is added:  

“Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 27(2a).” 

(11)  Article 23 is amended as follows: 

(a) 

paragraph 4 is amended as follows: 

(i) 

in the first and second subparagraphs the terms “in accordance with the 
procedure referred to in Article 27(2)” are deleted; 

(ii) 

the following subparagraph is added: 

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“The measures referred to in the first and second subparagraphs, designed to amend 
non-essential  elements  of  this  Directive  by  supplementing  it,  shall  be  adopted  in 
accordance with the regulatory procedure with scrutiny referred to in Article 27(2a).” 

(b)  paragraph 5 is amended as follows: 

(i) 

the terms “in accordance with the procedure referred to in Article 27(2)” 
are deleted; 

(ii) 

the following sentence is added: 

“Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 27(2a).” 

(12)  Article 27 is amended as follows: 

(a) 

the following paragraph 2a is inserted: 

“2a.  Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of 
Decision  1999/468/EC  shall  apply,  having  regard  to  the  provisions  of  Article  8 
thereof.” 

(b)  paragraphs 3 and 4 are deleted. 

Article 2 

This Directive shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Article 3 

This Directive is addressed to the Member States.  

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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