The European Securities and Markets Authority (ESMA) has published a consultation paper on draft regulatory technical standards (RTS) under the new Prospectus Regulation. The proposed draft RTS include standards in the following areas:
- key financial information for the prospectus summary. The draft RTS set out the minimum information requirements and establish specific templates for presenting the required information according to the type of issuer and security concerned. The draft RTS also addresses how guarantors should set out their key financial information, the presentation of pro forma information and complex financial information, and the use of alternative performance measures;
- provisions concerning advertisements. As the market has become accustomed to the current rules on advertisements in Articles 11 (Dissemination of advertisements) and 12 (Consistency with the prospectus) of the Omnibus II Regulation, the draft RTS replicate the existing provisions to the extent that they are compatible with the new Prospectus Regulation. The draft RTS further specify that advertisements must include wording that clearly identifies them as such, as well as disclosing the website where the prospectus is published and containing information that will assist investors to trace the prospectus;
- obligation to publish a supplement to the prospectus. The draft RTS mirror as far as possible the existing requirements for the publication of a supplement which are set out in Article 2 of Commission Delegated Regulation (EU) No 382/2014. The draft RTS also incorporate new provisions to ensure consistency with ESMA’s proposed technical advice on the format and contents of the prospectus, particularly as regards the extension of the requirements to provide profit forecasts and estimates to further types of issuers and the requirement for issuers of the underlying securities relating to depositary receipts to provide a working capital statement;
- publication of prospectuses. The draft RTS propose carrying over the existing rules on publication which are set out in Articles 6 to 10 of the Omnibus II Regulation to the extent that they have not been transferred to or otherwise rendered obsolete by the new Prospectus Regulation. After conducting a comparison between the existing and new regime, ESMA considers that only Articles 6(1)(c) and Article 6(3) (Publication of prospectus in electronic form) need to be carried over to draft RTS; and
- data for classification of prospectuses and the practical arrangements to ensure the machine readability of such data. With a view to minimising adaptation costs, the draft RTS propose that national competent authorities continue using the existing Prospectus Register for the purpose of submitting data to ESMA, as this already allows data to be submitted and received in XML machine-readable form. ESMA also proposes expanding the platform so it could be used as a storage mechanism providing the public with free of charge access and search functions.
The deadline for comments on the consultation paper is 9 March 2018.
View Prospectus Regulation: ESMA consultation on draft regulatory technical standards, 18 December 2017