Sources of regulation

Level 1 legislative text

Text of 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/EC (dated 14 June 2017, published in the Official Journal on 30 June 2017)

Level 2 measures

The Prospectus Regulation empowers the Commission to adopt delegated and implementing acts to specify how competent authorities and market participants should comply with the obligations laid down in the Regulation. In some cases, this empowerment is mandatory – that is, the Commission is obliged by the Regulation to adopt delegated acts. In other cases, this empowerment is discretionary – that is, the Commission may decide to adopt delegated acts but it is not obliged to. The following section provides a guide to which provisions of the Prospectus Regulation require level 2 measures and the current status of those measures together, where possible, with an indicative timetable of the legislative progress of those measures.

Delegated Acts

On 28 February 2017, ESMA received a formal request from the Commission to provide technical advice on possible delegated acts concerning the Prospectus Regulation. Further updated versions have subsequently been published (most recently on 18 June 2018) with updated Article references and extended deadlines.

The mandate is divided into two parts. Part I sets out the delegated acts for which the Commission requires ESMA to provide the technical advice within 13 months following receipt of the mandate (by 31 March 2018). The matters set out in Part I of the mandate and the corresponding ESMA consultation and draft technical advice are as follows:

• measures specifying criteria for the scrutiny and review of the universal registration document (URD) and amendments to it, procedures for the approval and filing of the URD and conditions under which the status of frequent issuer is lost
• measures specifying the format of the prospectus, base prospectus and final terms, and the schedules defining the specific information which must be included in a prospectus (including LEIs and ISINs
• measures setting out the schedule defining the minimum information contained in the URD
• measures specifying the reduced information to be included in the schedules applicable under the simplified disclosure regime for secondary issues
• measures specifying the reduced content and standardised format and sequence for the EU Growth prospectus, as well as the reduced content and standardised format of its specific summary
• measures specifying the criteria for the scrutiny of prospectuses, in particular the completeness, comprehensibility and consistency of the information contained within it, and the procedures for the approval of the prospectus

Part II of the mandate sets out the delegated acts for which the Commission requires ESMA to provide technical advice within 25 months in respect of item (g) below and 30 months in respect of item (h) below following receipt of the mandate (31 March 2019 and 31 August 2019, respectively):

• measures setting out the minimum information content of the documents describing a takeover by way of exchange offer, a merger or division
• measures establishing general equivalence criteria for prospectuses drawn up under the laws of non-EU states

* The Commission's draft Delegated Regulation published on 28 November 2018 contains the proposed disclosure annexes which will govern the form and content of prospectuses when the new Prospectus Regulation applies from 21 July 2019.

Regulatory Technical Standards

The Prospectus Regulation requires ESMA to submit draft regulatory technical standards ("RTS") on certain items specified in the Regulation and listed below. ESMA is additionally permitted, but is not required, to submit draft RTS in respect of certain other items specified in the Regulation and listed below. ESMA must conduct a public consultation before submitting draft RTS to the Commission.

Implementing Technical Standards

ESMA may develop draft implementing technical standards in the following areas:

Standard forms, templates and procedures for the notification of the certificate of approval, the prospectus, any supplement thereto and the translation of the prospectus and/or summary (Article 25(8))

No indication from ESMA or the Commission

Standard forms, templates and procedures for the notification of the certificate of approval relating to the registration document, the universal registration document, any supplement thereto and the translation thereof (Article 26(6))

No indication from ESMA or the Commission

Standard forms, templates and procedures for cooperation and exchange of information between competent authorities (Article 33(7))

No indication from ESMA or the Commission

Procedures and forms for exchange of information between ESMA and competent authorities (Article 34(3))

No indication from ESMA or the Commission

Guidelines

ESMA guidelines to assist competent authority control advertisements in cross-border situations (Article 22(10))

No indication from ESMA

The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.