HM Treasury and the Financial Services Authority published on 25 May 2012 a joint policy statement (PS12/9) summarising the responses received and policy decisions made in relation to their consultation paper CP11/28, “UK implementation of Amending Directive 2010/73/EU”. The FSA’s press release is here and PS12/9 is here.
We discussed CP11/28 here in December 2011, summarising the key changes that the Amending Directive (AD) makes to the Prospectus Directive.
The policy statement reminds us of the background to CP11/28:
“On 24 November 2010, the European Parliament and Council adopted the Amending Directive 2010/73/EU which revised the Prospectus Directive (2003/71/EC) and Transparency Directive (2004/109/EC). The Amending Directive was published in the Official Journal of the European Union on 11 December 2010 and came into force on 31 December 2010. Member States have until 1 July 2012 to implement the Amending Directive into national legislation.
In CP11/28 HM Treasury and the FSA set out the way in which we intend to take forward the implementation of the Amending Directive in the UK. Responsibility for this is shared between HM Treasury, which has the power to make changes to the Financial Services and Markets Act 2000 and the FSA, under its Prospectus Rules, Listing Rules and Disclosure and Transparency Rules.”
As this reminder states, the UK has until 1 July 2012 to implement the Amending Directive into national law – although two of the principal changes introduced by the AD were introduced into UK law early on 1 July 2011, as we discussed here.
Changes to CP11/28 made by the policy statement
The main changes to the December 2011 consultation document made by PS12/9 are:
- “clarification that the consent of either the issuer, or other person responsible for drawing up a prospectus (but not both), is required on a subsequent placement through an intermediary;
- an adjustment to the definition of ‘Qualified Investor’ – the Directive requires that this concept ties in fully with MiFID, including taking account of any opt-downs; and
- clarifications of the content of the prospectus summary, and the definition of ‘key information’”.
HM Treasury will now lay before Parliament the statutory instrument required to make changes to the Financial Services and Markets Act 2000 to implement the AD into national law. Changes to the Prospectus, Listing and Disclosure and Transparency Rules contained in the FSA Handbook are also required. Both sets of changes are contained in PS12/9.
UPDATE 19 June 2012: The Prospectus Regulation, making changes to the FSMA 2000, has now been published.
UPDATE 25 June 2012: The changes to the FSA Handbook required as part of the implementation of the Amending Directive have now been published.
Draft delegated regulations under the Amending Directive, amending the Prospectus Regulation
The format and the content of the prospectus, the base prospectus, the summary and the final terms and as regards the disclosure requirements: Separately but relatedly, the European Commission on 30 March 2012 published a draft delegated regulation to amend the Prospectus Regulation. The draft delegated regulation, in the Commission’s words, amends “Regulation (EC) No 809/2004 as regards the format and the content of the prospectus, the base prospectus, the summary and the final terms and as regards the disclosure requirements.”
The delegated regulation is made under the Amending Directive, which requires that the Prospectus Regulation be amended through a delegated regulation. We discuss this draft delegated regulation, which is scheduled to come into force in Member States on 1 July 2012, here.
UPDATE 11 June 2012: The final text of the delegated regulation is here.
The consent to use of the prospectus on retail cascades, information on underlying indexes and the requirement for a report prepared by independent accountants or auditors: The European Commission on 4 June 2012 published a further draft delegated regulation to amend the Prospectus Regulation. This draft delegated regulation, in the Commission’s words, amends Regulation (EC) No 809/2004 as regards information on the consent to use of the prospectus, information on underlying indexes and the requirement for a report prepared by independent accountants or auditors. The text of the draft delegated regulation is here.
The delegated regulation is made under the Amending Directive, which requires that the Prospectus Regulation be amended through a delegated regulation. This draft delegated regulation is scheduled to come into force in Member States on 1 July 2012.