CELEX: 
Language: en
Date: 2020-06-04 00:00:00
Title: COMMISSION DELEGATED REGULATION (EU) …/... amending and correcting Commission Delegated Regulation (EU) 2019/979 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

EUROPEAN
                           COMMISSION
                                                     Brussels, 4.6.2020
                                                     C(2020) 3502 final
                COMMISSION DELEGATED REGULATION (EU) …/...
                                         of 4.6.2020
        amending and correcting Commission Delegated Regulation (EU) 2019/979
     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
                                  (Text with EEA relevance)
EN                                                                                         EN
 ---pagebreak---                                    EXPLANATORY MEMORANDUM
   1.        CONTEXT OF THE DELEGATED ACT
   1.1.      General background
   The Prospectus Regulation1 creates a new and harmonised set of rules that (i) helps
   companies raising money on capital markets to invest and grow; (ii) helps investors to make
   better and more informed decisions; and (iii) fosters supervisory convergence throughout the
   Union.
   Articles 7(13), 21(12), 21(13), 22(9), 23(7) and 25(7) of the Prospectus Regulation empower
   the Commission to adopt a delegated act to specify the following details of the new
   prospectus rules, based on draft regulatory technical standards (RTSs) submitted by the
   European Securities and Markets Authority (ESMA), and in accordance with Articles 10 to 14
   of Regulation No (EU) 1095/20102:
            the minimum content and the format of presentation of the key financial information
             in the prospectus summary;
            requirements relating to the publication of the prospectus;
            data necessary for the classification of prospectuses (metadata) and practical
             arrangements to ensure the machine readability of the data;
            content and dissemination of advertisements, and establishment of an efficient
             cooperation procedure between competent authorities to assess the consistency
             between the advertisement and the information in the prospectus;
            situations where the publication of a supplement to the prospectus is required;
            technical arrangements necessary for the functioning of the notification portal.
   In July 2018, ESMA delivered to the Commission the final report containing draft RTSs
   under the Prospectus Regulation.
   The Commission adopted the RTSs in the form of Commission Delegated Regulation (EU)
   2019/9793 on 14 March 2019.
   In order to make some amendments and corrections in respect of certain errors identified in
   Delegated Regulation (EU) 2019/979, on 6 December 2019 ESMA submitted to the
   Commission draft RTSs amending and correcting the following parts of that Regulation:
            Article 18;
            Article 21;
   1
           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, ad repealing Directive 2003/71/EC (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) 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 (OJ L 166, 21.6.2019, p. 1).
EN                                                         1                                                          EN
 ---pagebreak---             Table 3 of Annex I;
            Table 1 of Annex VII.
   1.2.      Objectives of the Delegated Regulation
   Under Commission Delegated Regulation (EU) No 382/20144, as well as in ESMA’s draft
   RTSs, issuers of non-equity securities are not required to publish a supplement to the
   prospectus in case of new annual audited financial statements, a change in control, a new
   take-over bid, a new significant financial commitment and a change in the working capital
   statement. During the scrutiny of Commission Delegated Regulation (EU) 2019/979, it
   emerged that issuers of certain non-equity securities (i.e. debt securities convertible or
   exchangeable into third party shares) would be unintentionally required to publish a
   supplement to the prospectus in the above-mentioned situations. Therefore, the objective of
   this Delegated Regulation is to restore the status quo, which has proven to work well.
   Furthermore, one of the fields for classification of securities should be aligned with the
   corresponding field used in the Financial Instruments Reference Data System (FIRDS), with
   the aim of maintaining the current treatment of those instruments and aligning prospectus
   rules with MiFIR5.
   The objective of this Delegated Regulation is to amend and correct Commission Delegated
   Regulation (EU) 2019/979.
   2.        CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
   Although the standard procedure in Article 10(1) of Regulation (EU) No 1095/2010 requires
   that ESMA consult stakeholders in relation to its regulatory technical standards, ESMA has
   decided not to do so on this occasion. The reason why ESMA has not carried out a public
   consultation in this specific case is that it would have been disproportionate in relation to the
   scope and impact of the amendments, in particular taking into consideration the urgency of
   these matters. However, ESMA has requested the opinion of the Securities and Markets
   Stakeholder Group established in accordance with Article 37 of Regulation (EU) No
   1095/2010.
   3.        LEGAL ELEMENTS OF THE DELEGATED ACT
   To address the above-mentioned issues, this Delegated Regulation proposes the following
   amendments and corrections:
            Article 1 of this Delegated Regulation amends Article 18, Annex I and Annex VII of
             Commission Delegated Regulation (EU) 2019/979;
            Article 2 of this Delegated Regulation corrects Article 21 of Commission Delegated
             Regulation (EU) 2019/979.
   4
           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).
   5
           Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on
           markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p.
           84).
EN                                                        2                                                   EN
 ---pagebreak---                      COMMISSION DELEGATED REGULATION (EU) …/...
                                                    of 4.6.2020
          amending and correcting Commission Delegated Regulation (EU) 2019/979
       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
                                           (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/EC6, and in
   particular Articles 7(13), 21(13) and 23(7) thereof,
   Whereas:
   (1)     Under Commission Delegated Regulation (EU) 2019/9797, issuers of securities
           convertible or exchangeable into third party shares are currently required, in the
           situations listed in Article 18 of that Regulation, to publish a supplement to their
           prospectus. By contrast, Commission Delegated Regulation (EU) No 382/20148,
           which has been replaced by the Delegated Regulation (EU) 2019/979, did not require
           the publication of a supplement by such issuers in those situations. As those rules have
           proven to work well and have not affected the level of investor protection, all
           references to issuers of securities convertible or exchangeable into third party shares
           should be removed from the list in Article 18(1) of Delegated Regulation (EU)
           2019/979.
   (2)     To provide investors with a comparative overview of the evolution of the cash flow
           statement of a non-financial entity issuing equity securities, the column relating to the
           cash flow information for the two years prior to the year of the prospectus should be
           inserted in table 3 of Annex I to Delegated Regulation (EU) 2019/979.
   (3)     Field 26 of Annex VII to Delegated Regulation (EU) 2019/979, which relates to
           depository receipts, refers to ‘DRCP’. That field should however refer to ‘DPRS’,
           which is the reference used in the Financial Instruments Reference Data System
   6
           OJ L 168, 30.6.2017, p. 12.
   7
           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 (OJ L 166, 21.6.2019, p. 1).
   8
           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).
EN                                                         3                                                          EN
 ---pagebreak---          (FIRDS) operated by the European Securities and Markets Authority (ESMA) in
         accordance with Regulation (EU) No 600/20149.
   (4)   Delegated Regulation (EU) 2019/979 should therefore be amended accordingly.
   (5)   In the Czech, English, Portuguese and Slovak language versions of Article 21 of
         Delegated Regulation (EU) 2019/979, a word has been omitted, making that provision
         difficult to understand. That provision should be corrected accordingly.
   (6)   This Regulation is based on the draft regulatory technical standards submitted by the
         European Securities and Markets Authority (ESMA) to the Commission.
   (7)   In the interest of legal certainty, summaries of prospectuses approved between 21 July
         2019 and [PO please insert the date before the date of entry into force of this
         amending act in the OJ] should continue to be valid until the end of the validity of
         those prospectuses.
   (8)   Regulation (EU) 2017/1129 and Delegated Regulation (EU) 2019/979 entered into
         application on 21 July 2019. For reasons of legal certainty and to ensure the correct
         functioning of the prospectus notification portal, Article 1, points (1), (3), and (4), and
         Article 2 of this Delegated Regulation should have the same date of application as
         Regulation (EU) 2017/1129 and Delegated Regulation (EU) 2019/979.
   (9)   Given the urgency of this matter and the limited scope and impact of the draft
         regulatory standards on which this Regulation is based, ESMA has neither conducted
         open public consultations, nor analysed the potential related costs and benefits. ESMA
         has requested the opinion of the Securities and Markets Stakeholder Group established
         in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European
         Parliament and of the Council10,
   HAS ADOPTED THIS REGULATION:
                                                   Article 1
                        Amendments to Delegated Regulation (EU) 2019/979
   Delegated Regulation (EU) 2019/979 is amended as follows:
   (1)      Article 18(1) is amended as follows:
            (a)    in point (a), points (i) and (ii) are replaced by the following:
                   ‘(i)     an issuer where a prospectus relates to shares or other transferrable
                            securities equivalent to shares;
                   (ii)     an issuer of the underlying shares or other transferable securities
                            equivalent to shares in case of securities referred to in Articles 19(2) or
                            20(2) of Delegated Regulation (EU) 2019/980;’;
            (b)    in point (d), points (i) and (ii) are replaced by the following:
   9
          Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on
          markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p.
          84).
   10
          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).
EN                                                     4                                                      EN
 ---pagebreak---              ‘(i)     an issuer where a prospectus relates to shares or other transferrable
                      securities equivalent to shares;
             (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) or 20(2) of Delegated Regulation (EU) 2019/980;’;
       (c)   point (e) is replaced by the following:
             ‘(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*
                      or the result of any takeover bid becomes available in respect of any of
                      the following:
                      (i)     the equity of the issuer where a prospectus relates to shares or
                              other transferrable securities equivalent to shares;
                      (ii)    the equity of the issuer of the underlying shares or other
                              transferable securities equivalent to shares where a prospectus
                              relates to the securities referred to in Articles 19(2) or 20(2) of
                              Delegated Regulation (EU) 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;
                      ________________________________
                      *       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).’;
       (d)   in point (f), points (i) and (ii) are replaced by the following:
             ‘(i)     shares or other transferrable securities equivalent to shares;
             (ii)     securities as referred to in Article 19(2) of Delegated Regulation (EU)
                      2019/980;’;
       (e)   point (h) is replaced by the following:
             ‘(h)     in the case of a prospectus relating to shares or other transferrable
                      securities equivalent to shares or to the securities referred to in Articles
                      19(2) or 20(2) of Delegated Regulation (EU) 2019/980, a new
                      significant financial commitment is likely to give rise to a significant
                      gross change as defined in Article 1, point (e), of that Delegated
                      Regulation;’;
   (2) the following Article 22a is inserted:
                                                    ‘Article 22a
                     Summaries of prospectuses approved between 21 July 2019 and
              [Publications office, please insert the date before the date of entry into force of
                   this amending act in the OJ] for non-financial entities issuing equity
                                                     securities
              Summaries of prospectuses that contain information as referred to in
              Table 3 of Annex I and that have been approved between 21 July 2019
              and [Publications office, please insert the date before the date of entry
              into force of this amending act in the OJ] shall continue to be valid until
              the end of the validity of those prospectuses.’;
EN                                               5                                                     EN
 ---pagebreak---    (3)       Annex I is amended in accordance with Annex 1 to this Regulation;
   (4)       Annex VII is amended in accordance with Annex 2 to this Regulation.
                                               Article 2
                        Corrections to Delegated Regulation (EU) 2019/979
   Article 21 of Delegated Regulation (EU) 2019/979 is replaced by the following:
                                              ‘Article 21
                         Download of documents and accompanying data
           ESMA shall ensure that the notification portal makes any uploaded documents and
           accompanying data available to the relevant competent authorities.’.
                                               Article 3
                                  Entry into force and application
   This Regulation shall enter into force on the third day following that of its publication in the
   Official Journal of the European Union.
   However, Article 1, point (1), (3) and (4) and Article 2 shall apply from 21 July 2019.
   This Regulation shall be binding in its entirety and directly applicable in all Member States.
   Done at Brussels, 4.6.2020
                                                 For the Commission
                                                 The President
                                                 Ursula VON DER LEYEN
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 ---documentbreak---                            EUROPEAN
                           COMMISSION
                                                    Brussels, 4.6.2020
                                                    C(2020) 3502 final
                                                    ANNEXES 1 to 2
                                        ANNEXES
                                          to the
                COMMISSION DELEGATED REGULATION (EU) .../...
        amending and correcting Commission Delegated Regulation (EU) 2019/979
     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
EN                                                                                         EN
 ---pagebreak---                                               ANNEX 1
   In Annex I, Table 3 is replaced by the following:
                                               ‘Table 3
                   Cash flow statement for non-financial entities (equity securities)
                                  Year       Year -1    Year -2     Interim   Comparative interim
                                                                               from same period in
                                                                                    prior year
   *Relevant net Cash flows
   from operating activities
   and/or cash flows from
   investing activities and/or
   cash       from    financing
   activities
   ’
EN                                                 1                                               EN
 ---pagebreak---                                            ANNEX 2
   In Table 1 of Annex VII, in the column ‘Format and Standard to be used for reporting’, in
   entry 26, ‘DRCP’ is replaced by ‘DPRS’.
EN                                            2                                              EN