REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the exercise of the power to adopt delegated acts conferred on the Commission pursuant to Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC
Date: 2015-04-13
Institutions: European Commission
Subjects: disclosure of information, dissemination of information, financial control, price of securities, publication, takeover bid













EUR-Lex - 52015DC0149 - EN











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52015DC0149

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the exercise of the power to adopt delegated acts conferred on the Commission pursuant to Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC /* COM/2015/0149 final */









1. Introduction
Adopted in November 2003, the Prospectus
Directive (PD)[1]
lays down common rules governing the prospectus that has to be published for a
public offer or admission to trading of transferable securities on an EU
regulated market. Following a review process, the PD was amended in November
2010 by Directive 2010/73/EU ("PD II", in application from July
2012). It was last amended by Directive 2014/51/EU (the
"Omnibus II" Directive).
The PD II includes, in its Article 4, a
review clause requiring the Commission to assess by 1 January 2016 the
application of the PD as amended by PD II. This report should be presented to
the European Parliament and the Council, and accompanied, where appropriate, by
proposals to amend the PD.
2. Legal basis
This report is required under Article
24a PD. Pursuant to this provision, the power to adopt delegated acts referred
to in Article 1(4), Article 2(4), Article 3(4), the fifth subparagraph of
Article 4(1), Article 5(5), Article 7(1), Article 8(4), Article 11(3),
Article 13(7), Article 14(8), Article 15(7) and the first subparagraph of
Article 20(3) PD shall be conferred on the Commission for a period of 4 years
from 31 December 2010. The Commission shall draw up a report in respect of
the delegated power at the latest 6 months before the end of the four-year
period. The delegation of power shall be automatically extended for periods of
an identical duration, unless the European Parliament or the Council revokes it
in accordance with Article 24b PD.
3. Exercise of the delegation
Article 1(4) PD
To date, an adjustment of the limits
referred to in Article 1(4) PD was not undertaken by the Commission. The limits
will be assessed in the course of the review required by Article 4 PD II, by
1 January 2016.
Article 2(4) PD
To date, an adjustment of the
definitions and thresholds referred to in Article 2(4) PD was not undertaken by
the Commission. The definitions and thresholds will be assessed in the course
of the review required by Article 4 PD II, by 1 January 2016.
Article 3(4) PD 
To date, an adjustment of the thresholds
referred to in Article 3(4) PD was not undertaken by the Commission. The
thresholds will be assessed in the course of the review required by Article 4
PD II, by 1 January 2016.
Article 4(1) PD fifth subparagraph 
To date, no requests
for such assessments were made to specify the criteria for the equivalence of
third-country regulatory frameworks. Furthermore, the equivalence assessment
can be done directly, i.e. without specifying or adding further criteria,
taking into account the relevant provisions of the Markets in Financial
Instruments Directive 2004/39/EC, of the Transparency Directive 2004/109/EC and
of the Market Abuse Directive 2003/6/EC and the general criteria set out in
Article 4(1)(e) PD. All equivalence provisions for third countries will be
assessed in the course of the review required by Article 4 PD II, by
1 January 2016.
Article 5(5) PD and Article 7(1) PD
These empowerments have been used to
adopt the following Commission Delegated Regulations: 
-         
Commission
Delegated Regulation (EU) No 486/2012 of 30 March 2012 amending Regulation (EC)
No 809/2004 as regards the format and the content of the prospectus, the base
prospectus, the summary and the final terms and as regards the disclosure
requirements.
-         
Commission
Delegated Regulation (EU) No 862/2012 of 4 June 2012 amending Regulation (EC)
No 809/2004 as regards information on the consent to use of the prospectus,
information on underlying indexes and the requirement for a report prepared by
independent accountants or auditors.
-         
Commission
Delegated Regulation (EU) No 759/2013 of 30 April 2013 amending Regulation (EC)
No 809/2004 as regards the disclosure requirements for convertible and
exchangeable debt securities.
Article 8(4) PD
This empowerment has not been used
because discussions with the European Securities and Markets Authority (ESMA)
and National Competent Authorities (NCAs) have not shown the need to further
specify details about the omission of information from the prospectus.
Article 11(3) PD 
The "Omnibus II" Directive
amended the empowerment contained in the PD in order to take into account the
creation of ESMA within the European System of Financial Supervision (ESFS).
Before the adoption of the Omnibus II Directive, the empowerment conferred the
power on the Commission to adopt delegated acts. The adoption of the Omnibus II
Directive amended the empowerment to confer the power on ESMA to develop draft
regulatory technical standards (RTS) to specify the information to be incorporated
by reference. ESMA is to submit these draft RTS to the Commission by 1 July
2015, and the Commission is empowered to adopt the RTS in accordance with
Articles 10 to 14 of Regulation (EU) No 1095/2010. ESMA undertook a public
consultation on the draft RTS which closed on 19 December 2014. 
Article 13(7) PD
The "Omnibus II" Directive
amended the empowerment contained in the PD. The amended empowerment confers
the power on ESMA to develop draft RTS to specify the procedures
for the approval of the prospectus and the conditions in accordance with which
time limits may be adjusted. ESMA is to submit these draft RTS to
the Commission, for adoption, by 1 July 2015. ESMA undertook a public
consultation on the draft RTS which closed on 19 December 2014.
Article 14(8) PD
The "Omnibus II" Directive
amended the empowerment contained in the PD. The amended empowerment confers
the power on ESMA to develop draft RTS to specify the provisions
relating to the publication of the prospectus in paragraphs 1 to 4 of Article
14. ESMA
is to submit these draft RTS to the Commission, for adoption, by 1 July 2015.
ESMA undertook a public consultation on the draft RTS which closed on
19 December 2014.
Article 15(7) PD 
The "Omnibus II" Directive
amended the empowerment contained in the PD. The amended empowerment confers
the power on ESMA to develop draft RTS to specify the provisions
concerning the dissemination of advertisements announcing the intention to
offer securities to the public or the admission to trading on a regulated
market, in particular before the prospectus has been made available to the
public or before the opening of the subscription, and specify the provisions
laid down in paragraph 4 of Article 15. ESMA is to
submit these draft RTS to the Commission, for adoption, by
1 July 2015. ESMA undertook a public consultation on the draft RTS
which closed on 19 December 2014.
Article 20(3) PD first subparagraph 
To date, the Commission has not used the
empowerment to adopt delegated acts establishing general equivalence criteria
for third country prospectuses. In the meantime, ESMA has developed a
non-binding "framework for third country prospectuses under Article 20 of
the Prospectus Directive" (see Public statement ESMA/2011/36). The issue
of general equivalence criteria for third country prospectuses will
be assessed in the course of the review required by Article 4 PD II, by
1 January 2016.
4. Conclusion
The Commission has exercised some of its
delegated powers. The empowerments contained in Article 11(3), Article 13(7),
Article 14(8) and Article 15(7) PD were amended by "Omnibus II"
Directive and ESMA is currently working on drafting the respective RTS, which
will be adopted by the Commission in accordance with Articles 10 to 14 of
Regulation (EU) No 1095/2010. While the Commission believes that the delegation
of powers to it has been crucial to further develop the single rulebook and
thus establish more harmonised, high quality rules, the Commission has not used
some of those powers yet. The provisions concerned will also form part of the
PD review required by Article 4 PD II, by 1 January 2016. The
Commission considers that the European Parliament and the Council should not
revoke those delegations of powers in accordance with Article 24b PD, as it may
need to use those powers to adopt certain delegated acts in the future, in
light of the developments on the financial markets. The Commission invites the
European Parliament and the Council to take note of this report.
[1]
Directive 2003/71/EC of the European Parliament and of the Council of 4
November 2003 on the prospectus to be published when securities are offered to
the public or admitted to trading and amending Directive 2001/34/EC