17 December 2013

ESMA opinion on the format of the base prospectus and consistent application of article 26(4) of the Prospectus Regulation

As expressed in ESMA's publication, the base prospectus shall not be drawn up as a tripartite prospectus and any incorporation by reference of relevant information should comply with the conditions set out in the Regulation.

According to the Board of Supervisors, the overall prospectus regime does not provide the necessary legal framework for the possibility of a tripartite base prospectus and changes to both the Prospectus Directive and Regulation, other than those amendments introduced by Directive 2010/73/EU, would have been required to facilitate such a construct. Furthermore, the “choice” of the issuer, referred to in Article 26(4) of the Regulation, is whether to draw up a base prospectus and not whether to incorporate the registration document by reference.

ESMA will examine compliance with the provisions of Article 26(4) of the Regulation nine months following the publication of this opinion and may at that point pursue non-compliant national competent authorities under Article 17 of the ESMA Regulation.

In the interim period, should ESMA become aware of any notifications under Article 18 of the Prospectus Directive of a base prospectus drawn up in non-compliance with Article 26(4) of the Regulation (with the exception of notification of any supplements to base prospectuses already notified at the time of publication of this opinion), it may consider expediting its examination of non-compliant practices.

Full document

ESMA data on prospectuses approved and passported – January 2013 to June 2013

ESMA published statistical data in relation to the number of prospectuses approved and passported by the National Competent Authorities for the period January 2013 to June 2013.

Despite the limitations and caveats highlighted when publishing the data, the initiative was considered very useful and was welcomed by the European Commission and market participants. For this reason, the exercise was formalised and data was collected on a regular basis.

The tables reflect the information as provided by the National Competent Authorities to ESMA. It is important to note that the National Competent Authorities have different internal databases in place that might lead to some divergences in the data provided.

The top five countries in terms of the highest numbers of prospectuses approved and passported within the given timeframe were Luxembourg, Ireland, the UK, Germany and France, respectively.

Full report

© ESMA