04 October 2011

ESMA publishes its technical advice on possible delegated acts concerning the Prospectus Directive as amended by the Directive 2010/73/EU

In accordance with the terms of the Mandate, ESMA presents by means of this final advice a combined document that comprises both its feedback statement (FB) and its final technical advice (TA) for each of the sections 3.1, 3.2 and 3.3 of the Mandate. This combined document has been structured in such a way that the technical advice immediately follows the feedback statement in relation to each individual section of the Mandate.

In relation with the drafting of the FB and TA, the Task Force has carefully considered all comments received during the consultation process. The FB discusses in detail the comments which emerged during the consultation process, and provides in this advice the relevant position for which ESMA has finally opted. The TA takes into account the changes set out in the feedback statement.

Regarding the first part of the mandate, the Commission is under the obligation to adopt delegated acts by 1 July 2012 (18 months after the entry into force of the Amending Directive) in relation to the format of the final terms to a base prospectus, the format of the summary of the prospectus, and the detailed content and specific form of the key information to be included in the summary (Article 5(5)). This part of the mandate also covers the proportionate disclosure regime proposed to be introduced for some pre-emptive offers of equity securities, offers by SMEs and issuers with reduced market capitalisation, and offers of non-equity securities referred to in Article 1(2)(j) by credit institutions (Article 7(1)).

ESMA has recently started to work on the remaining parts of the mandate. The second part of the formal mandate covers in section 3.4 the criteria to be applied in assessing the equivalence of a third-country financial market (Article 4 (1)); in section 3.5 a possible format and form of a consent to use a prospectus in a retail cascade (Article 3 and 7); and in section 4 a review of other provisions of the Prospectus Regulation, including possible additional delegated acts for technical adjustment and clarification of some existing Level 2 measures (see Articles 5, 7, 24a, 24b and 24c of the Amended Directive). Finally, in section 5 of the mandate, ESMA is invited to assist the Commission in the preparation of a comparative table recording the liability regimes applied by the Member States in relation to the Prospectus Directive.

Full technical advice

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