Directive 2008/11/EC of the European Parliament and of the Council of 11 March 2008 amending Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading, as regards the implementing powers conferred on the Commission (Text with EEA relevance)
Date: 2008-03-11
Institutions: Council of the European Union, European Parliament
Subjects: European Commission, advertising, powers of the institutions (EU), securities, takeover bid

19.3.2008

EN

Official Journal of the European Union

L 76/37

DIRECTIVE 2008/11/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 March 2008

amending Directive 2003/71/EC on the prospectus to be published when securities are offered to
the public or admitted to trading, as regards the implementing powers conferred on the
Commission

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Treaty, inter alia, by deleting some of those elements or
by supplementing the instrument with new non-essential
elements.

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

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of the European Central Bank (2),

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

(1)

(2)

the European Parliament
Directive 2003/71/EC of
the Council (4) provides that certain measures
and of
are to be adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the
procedures for
implementing powers
the exercise of
conferred on the Commission (5).

Council Decision 1999/468/EC has been amended by
Decision 2006/512/EC, which introduced the regulatory
procedure with scrutiny for the adoption of measures of
general
scope and designed to amend non-essential
elements of a basic instrument adopted in accordance
with the procedure referred to in Article 251 of the

(1) OJ C 161, 13.7.2007, p. 45.
(2) OJ C 39, 23.2.2007, p. 1.
(3) Opinion of the European Parliament of 14 November 2007 (not yet
published in the Official Journal) and Council Decision of 3 March
2008.

(4) OJ L 345, 31.12.2003, p. 64.
(5) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(3)

(4)

(5)

and

the Council

In accordance with the statement by the European
the Commission (6)
Parliament,
for the regulatory
concerning Decision 2006/512/EC,
procedure with scrutiny to be applicable to instruments
adopted in accordance with the procedure referred to in
Article 251 of the Treaty which are already in force,
those instruments must be adjusted in accordance with
the applicable procedures.

that Directive. Those measures

The Commission should be empowered to adopt the
measures necessary for the implementation of Directive
2003/71/EC in order to take account of technical deve-
lopments in financial markets and ensure the uniform
application of
are
designed to adapt definitions and elaborate upon or
supplement the provisions of Directive 2003/71/EC by
detailed specification of
the form and contents of a
prospectus. Since those measures are of general scope
and are designed to amend non-essential elements of
Directive 2003/71/EC by supplementing it with new
non-essential
adopted in
accordance with the regulatory procedure with scrutiny
provided for in Article 5a of Decision 1999/468/EC.

they must be

elements,

instruments adopted under

Directive 2003/71/EC provides for a time restriction
concerning the implementing powers conferred on the
statement concerning Decision
In their
Commission.
2006/512/EC,
the Council
the European Parliament,
and the Commission stated that Decision 2006/512/EC
provides a horizontal and satisfactory solution to the
European Parliament’s wish to scrutinise the implemen-
the co-decision
tation of
procedure and that, accordingly,
implementing powers
should be conferred on the Commission without time
limit. The European Parliament and the Council also
the proposals
they would ensure that
declared that
aimed at repealing the provisions in the instruments
that provide for a time limit on the delegation of imple-
menting powers to the Commission are adopted as
rapidly as possible. Following the introduction of the
regulatory procedure with scrutiny, the provision estab-
lishing that
time restriction in Directive 2003/71/EC
should be deleted.

(6) OJ C 255, 21.10.2006, p. 1.

L 76/38

EN

Official Journal of the European Union

19.3.2008

(6)

(7)

(8)

The Commission should, at regular intervals, evaluate the
functioning of
the provisions concerning the imple-
menting powers conferred on it in order to allow the
European Parliament and the Council
to determine
whether the extent of those powers and the procedural
requirements imposed on the Commission are appro-
priate
and democratic
accountability.

and ensure both efficiency

latory procedure referred to in Article 24(2), stating that a
third country ensures the equivalence of prospectuses drawn
up in that country with this Directive by reason of
its
national law or of practices or procedures based on interna-
tional standards set by international organisations, including
the IOSCO disclosure standards.’;

3. Article 24 shall be amended as follows:

Directive 2003/71/EC should therefore be amended
accordingly.

(a)

the following paragraph shall be inserted:

Since the amendments made to Directive 2003/71/EC by
in nature and concern
this Directive are technical
they do not need to be
committee procedure only,
transposed by the Member States.
is therefore not
necessary to lay down provisions to that effect,

It

‘2a. Where reference is made to this paragraph,
and Article 7 of Decision
Article 5a(1)
1999/468/EC shall
to the
provisions of Article 8 thereof.’;

apply, having

to (4)

regard

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments

Directive 2003/71/EC is hereby amended as follows:

1. Articles 2(4), 4(3), 5(5), 7(1), 8(4), 11(3), 13(7), 14(8) and

15(7) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 24(2)’ shall be deleted;

(b) the following sentence shall be 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 24(2a).’;

2. Article 20(3) shall be replaced by the following:

adopt

In order

the Commission shall

to ensure uniform application of

‘3.
this
Directive,
implementing
measures aimed at establishing general equivalence criteria,
based on the requirements laid down in Articles 5 and 7.
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 24(2a).

On the basis of the above criteria, the Commission may
adopt implementing measures in accordance with the regu-

(b) paragraphs 3 and 4 shall be replaced by the following:

thereafter, at

the Commission shall

By 31 December 2010 and,

‘3.
least
review the
every three years,
provisions concerning its
implementing powers and
present a report to the European Parliament and to the
Council on the functioning of those powers. The report
shall examine, in particular, the need for the Commission
to propose amendments to this Directive in order to
ensure the appropriate scope of
the implementing
powers conferred on the Commission. The conclusion
as to whether or not amendment is necessary shall be
accompanied by a detailed statement of
If
necessary, the report shall be accompanied by a legis-
to amend the provisions conferring
lative proposal
implementing powers on the Commission.’

reasons.

Article 2

Entry into force

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

Article 3

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 11 March 2008.

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President

J. LENARČIČ