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, was published in the Official Journal of the European Union on 30 June 2017.
The text of the published Regulation can be found here.
EU Recovery Prospectus
On 26.02.2021 Regulation (EU) 2021/337 regarding the EU Recovery prospectus was published. The European Commission has temporarily introduced a new and particularly shortened EU Recovery Prospectus until 31.12.2022 in order to support enterprises in quick and simple capitalisation following the economic crisis caused by the COVID-19 pandemic. Once this period is over, evaluation will take place at EU level whether this form of a prospectus or a generally abridged new form of prospectus is to be introduced. The simplified prospectus comes under consideration for those enterprises, that have already been listed on a regulated market for at least 18 months, and which are seeking a capital increase. There are particular substantive simplifications (e.g. a shortened summary, a single annual financial statement sufficing, information about the receipt of state aid, etc.). Due to the shortened approval period (7 working days), the FMA or the NCAs are required to approve the prospectuses particularly quickly. The issuers are however required to inform the FMA at least 5 working days prior to the application for approval about the submission being made. Furthermore, the FMA also refers to the temporary extension of the withdrawal right in the case of supplements in Article 23 of Regulation (EU) 2017/1129. The consolidated version of the Prospectus Regulation – Regulation (EU) 2017/1129 can be found here.
Entry into force and application
The Prospectus Regulation entered into force on the twentieth day following its publication in the Official Journal of the European Union, in this case on 20 July 2017, and is applicable from 21 July 2019.
Transitional provisions – Grandfathering:
Pursuant to Article 46 (3) of the Prospectus Regulation, prospectuses approved in accordance with the national laws transposing Directive 2003/71/EC before 21 July 2019 shall continue to be governed by that national law until the end of their validity, or until twelve months have elapsed after 21 July 2019, whichever occurs first. This means that prospectuses approved before the cut-off date of 21 July 2019 shall be allowed to be continued after the cut-off date until the end of their validity period.
Details regarding the interpretation of the aforementioned provisions are being defined by ESMA in the “Q&A on prospectus related topics” which may be consulted via the following link.
New-Issue Calendar and Filing of final terms
The ESMA Notification Portal went live on 01 December 2020. Consequently the compulsory uploading via the Internet of final terms to the FMA in relation to base prospectuses approved by the FMA will end.
From 01 December 2020 issuers making an offering in Austria only have to notify the final terms of securities prospectuses approved by the FMA in accordance with the Prospectus Regulation (Regulation (EU) 2017/1129) to the OeKB’s Notification Office’s New Issue Calendar under the Capital Markets Act 2019 (KMG 2019) as online notification office.
The online notification office’s notification templates were extended to cover the accompanying data that is relevant for the classification of the prospectuses under the Delegated Regulation (EU) 2019/979. This data is used by the FMA pursuant to Article 21 (5) of the Prospectus Regulation for the purpose of transferring the information to ESMA.
Notifications and all other prospectus information may be consulted in ESMA’s Prospectus Register.
The basis for the compulsory notification to the New-Issue Calendar with regard to offerings in Austria is Article 24 para. 1 KMG.
Where securities are only going to be offered abroad within the EEA using a securities prospectus approved by the FMA under the Prospectus Regulation, the final terms and the accompanying data that is relevant for the issuance under Delegated Regulation (EU) 2019/979 are to be submitted to the FMA through the online notification office. The receipt of such filings via the online notification office occurs based on a delegation of tasks in accordance with Article 13 para. 3 KMG 2019.
Issuers are reminded about the obligation defined in Article 24 KMG 2019 to notify the final issue price and/or the final issue size under Article 17 of the Prospectus Regulation to the New-Issue Calendar.
Delegated acts in relation to the Prospectus Regulation:
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.
Downloadable at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R0979
Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the format, content, scrutiny and approval of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Commission Regulation (EC) No 809/2004
Downloadable at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R0980