BETA

51 Amendments of Ernest URTASUN related to 2015/0268(COD)

Proposal for a regulation
Recital 4

(4) Divergent approaches would result in fragmentation of the internal market since issuers, offerors and persons asking for admission would be subject to different rules in different Member States and prospectuses approved in one Member State could be prevented from being used in other Member States. In the absence of a harmonised framework to ensure uniformity of disclosure and the functioning of the passport in the Union it is therefore likely that differences in Member States legislation would create obstacles to the smooth functioning of the internal market for securities. Therefore to ensure the proper functioning of the internal market and improve the conditions of its functioning, in particular with regard to capital markets, and to guarantee a high level of consumer and investor protection, it is therefore appropriate to lay down a regulatory framework for prospectuses at Union level without any Member State discretion.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 9

(9) Non-equity securities issued and wholly, unconditionally and irrevocably guaranteed by a Member State or by one of a Member State's regional or local authorities, by public international bodies of which one or more Member States are members, by the European Central Bank or by the central banks of the Member States should not be covered by this Regulation and thus should remain unaffected by this Regulation.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 13

(13) Where offers of securities to the public are mad~~dressed only to domestic investors in one Member State, and thus have no cross-border effects, and where such offers do not exceed a total consideration of~~e by SMEs with fewer than 250 employees, with a balance sheet of less than EUR 1043 000 000, the passport mechanism under this Regulation is not needed and drawing up a prospectus may represent a disproportionate cost. Therefore it is appropriate to allow Member States to decide to exempt such kinds of offers from the prospectus obligation set out in this Regulation, taking into account the level of domestic investo and with a turnover of less than EUR 50 000 000, a lighter protspection they deem to be appropriate. In particular, Member States should be free to set out in their national law the threshold between EUR 500 000 and EUR 10 000 000, expressed as the total consideration of the offer over a period of 12 months, from which this exemption should applyus regime should apply for offers between EUR 500 000 and EUR 10 000 000 calculated over a 12 month period.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 14

(14) Where an offer of securities is addressed exclusively to a restricted circle of investors who are not qualified investors, drawing up a prospectus represents a disproportionate burden in view of the small number of persons targeted by the offer (fewer than 200 persons), thus no prospectus should be required. This should apply for example to an offer addressed to relatives or personal acquaintances of the managers of a company.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 15

(15) Incentivising directors and employees to hold securities of their own company can have a positive impact on companies' governance and help create long-term value by fostering employees' dedication and sense of ownership, aligning the respective interests of shareholders and employees, and providing the latter with investment opportunities. Participation of employees in the ownership of their company is particularly important for small and medium-sized enterprises (SMEs), in which individual employees are likely to play a significant role in the success of the company. Therefore, there should be no requirement to produce a prospectus for offers made in the context of an employee-share scheme within the Union, provided a document is made available containing information on the number and nature of the securities and the reasons for and details of the offer, to safeguard investor protection. To ensure equal access to employee-share schemes for all directors and employees, independently of whether their employer is established in or outside the Union, no equivalence decision of third country markets should be required any longer, as long as the aforementioned document is made available. Thus, all participants in employee-share schemes will benefit from equal treatment and information.deleted

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 22 a (new)

(22a) The summary should contain a clear warning, highlighting the inappropriate nature of the product for retail investors especially in the case of securities issued by banks that are subject to bail-in under Directive 2014/59/EU of the European Parliament and of the Council establishing a framework for the recovery and resolution of credit institutions and investment firms (BRRD).

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 26

(26) ~~No c~~Civil liability should be attached to any person solely on the basis of the summary, including any translation thereof, ~~unless~~if it is misleading, inaccurate or inconsistent with the relevant parts of the prospectus. ~~The summary should contain a clear warning to this effect.~~

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 40

(40) Once a class of securities is admitted to trading on a regulated market, investors are provided with ongoing disclosures by the issuer under Regulation (EU) 596/2014 of the European Parliament and of the Council12 and Directive 2004/109/EC. The need for a full prospectus is therefore less acute in case of subsequent offers to the public or admissions to trading by such an issuer. A distinct prospectus should therefore be available for use in case of secondary issuances and its content should be alleviated compared to the normal regime, taking into account the information already disclosed. ~~Still, i~~Investors ~~need to~~should still be provided with consolidated and well- structured information on such elements as the terms of the offer and its context, including a compilation of relevant information since the last offering of that class, the impact on the capital structure of the issuer, the working capital statement, the use of proceeds, risk factors specific to the issuer and the securities, board practices, directors’' remuneration, shareholding structure or relating-party transactions. As such information is not required to be disclosed on an ongoing basis under Regulation (EU) 596/2014 and Directive 2004/109/EC, it is appropriate that the prospectus drawn up in case of secondary issuance should at least include this information. __________________ 12 Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, (OJ L 173, 12.6.2014, p. 1).

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 48

(48) The primary purpose of including risk factors in a prospectus is to ensure that investors make an informed assessment of such risks and thus take investment decisions in full knowledge of the facts. Risk factors should therefore be limited to those risks which are material and specific to the issuer and its securities and which are corroborated by the content of the prospectus. A prospectus should not contain risk factors which are generic and only serve as disclaimers, as these could obscure more specific risk factors that investors should be aware of, thereby preventing the prospectus from presenting information in an easily analysable, succinct and comprehensible form. To help investors identify the most material risks, the issuer should be required to group specific risk factors together and allocate them across categories based on levels of materiality. A limited number of risk factors selected by the issuer from the category of highest materiality should be included in the summary. Notwithstanding the foregoing, all the risk factors of highest materiality should be included in the summary and therefore an arbitrary upper limit cannot be applied.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 56

(56) It is also necessary to harmonise advertisements in order to avoid undermining public confidence and prejudicing the proper functioning of financial markets. The fairness and accuracy of advertisements, as well as their consistency with the content of the prospectus are of utmost importance for the protection of investors, including retail investors, and the supervision of such advertisements is an integral part of the role of competent authorities, with the cooperation of both home and host Member States and subject to ESMA mediation in the event of disputes.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 63

(63) A set of effective tools and powers and resources for the competent authorities of Member States guarantees supervisory effectiveness. This Regulation therefore should in particular provide for a minimum set of responsibilities and supervisory and investigative powers with which competent authorities of Member States should be entrusted in accordance with national law. Those powers should be exercised, where the national law so requires, by application to the competent judicial authorities. When exercising their powers under this Regulation competent authorities and ESMA should act objectively and impartially and remain autonomous in their decision making.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 65

(65) In line with the Commission Communication of 8 December 2010 entitled 'Reinforcing sanctioning regimes in the financial services sector' and in order to ensure that the requirements of this Regulation are fulfilled, it is important that Member States take necessary steps to ensure that infringements of this Regulation are subject to appropriate administrative penalties and measures. Those penalties and administrative measures should be effective, proportionate and dissuasive and ensure a common approach in Member States and a deterrent effect. This Regulation establishes criteria for a minimum sanction but should not limit Member States in their ability to provide for higher levels of administrative sanctions.

2016/04/21
Committee: ECON

Proposal for a regulation
Recital 68 a (new)

(68a) In order to examine the reasons behind the greatly varying estimates of costs, to inform legislators and to promote competition amongst the providers of services related to the drawing up of prospectuses, ESMA should provide detailed statistics on the costs of producing a prospectus, accompanied by an analysis of the effectiveness of competition between services providers involved in drawing up prospectuses and recommendations on how to reduce costs.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 2 – point d

(d) securities wholly, unconditionally and irrevocably guaranteed by a Member State or by one of a Member State's regional or local authorities;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 2 – point h

(h) ‘bostadsobligationer’ issued repeatedly by credit institutions in Sweden whose main purpose is to grant mortgage loans, provided that (i) the ‘bostadsobligationer’ issued are of the same series; (ii) the ‘bostadsobligationer’ are issued on tap during a specified issuing period; (iii) the terms and conditions of the ‘bostadsobligationer’ are not changed during the issuing period; (iv) the sums deriving from the issue of the said ‘bostadsobligationer’, in accordance with the articles of association of the issuer, are placed in assets which provide sufficient coverage for the liability deriving from securities;deleted

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 2 – point i – point i a (new)

(ia) are not issued in order to meet the minimum requirement for eligible liabilities under [BRRD/SRM];

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 3 – point b

(b) an offer of securities addressed to fewer than 15200 natural or legal persons per Member State, other than qualified investors;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 3 – point c a (new)

(ca) an offer of securities whose denomination per unit amounts to at least EUR 100 000;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 3 – point h

(h) dividends paid out to existing shareholders in the form of shares of the same class as the shares in respect of which such dividends are paid, provided that a document is made available containing information on the number and nature of the shares and the reasons for and details of the offer;deleted

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 3 – point i

(i) securities offered, allotted or to be allotted to existing or former directors ~~or employees~~ by their employer or by an affiliated undertaking provided that a document is made available containing information on the number and nature of the securities and the reasons for and details of the offer or allotment.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 3 – point i a (new)

(ia) securities offered, allotted or to be allotted in lieu of cash as part of extraordinary compensation to existing or former employees by their employer or by an affiliated undertaking provided that a document is made available containing information on the number and nature of the securities and the reasons for and details of the offer or allotment.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 4 – point f

(f) shares offered, allotted or to be allotted free of charge to existing shareholders, ~~and dividends paid out in the form of shares of the same class as the shares in respect of which such dividends are paid,~~ provided that the said shares are of the same class as the shares already admitted to trading on the same regulated market and that a document is made available containing information on the number and nature of the shares and the reasons for and details of the offer or allotment;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 1 – paragraph 4 – point g

(g) securities offered, allotted or to be allotted to existing or former directors ~~or employees~~ by their employer or an affiliated undertaking, provided that the said securities are of the same class as the securities already admitted to trading on the same regulated market and that a document is made available containing information on the number and nature of the securities and the reasons for and detail of the offer or allotment;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point d

(d) ‘offer of securities to the public’ means a communication to persons in any form and by any means, presenting ~~sufficient~~ information on the terms of the offer and the securities to be offered, ~~so as to enable~~presented as a basis for an investor to decide to purchase or subscribe to these securities. This definition also applies to the placing of securities through financial intermediaries;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point f – indent 2

~~- small and medium-sized enterprises as defined in Article 4(1)(13) of Directive 2014/65/EU.~~deleted

2016/04/21
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point m – point i

(i) for all issuers of securities established in the Union ~~which are not mentioned in point (ii)~~, the Member State where the issuer has its registered office;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point m – point ii

(ii) for any issues of non-equity securities whose denomination per unit amounts to at least EUR 1 000, and for any issues of non-equity securities giving the right to acquire any transferable securities or to receive a cash amount, as a consequence of their being converted or the rights conferred by them being exercised, provided that the issuer of the non-equity securities is not the issuer of the underlying securities or an entity belonging to the group of the latter issuer, the Member State where the issuer has its registered office, or where the securities were or are to be admitted to trading on a regulated market or where the securities are offered to the public, at the choice of the issuer, the offeror or the person asking for admission. The same shall apply to non-equity securities in a currency other than euro, provided that the value of such minimum denomination is nearly equivalent to EUR 1 000;deleted

2016/04/21
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point m – point iii – introductory part

(iii) for all issuers of securities established in a third country ~~which are not mentioned in point (ii)~~, the Member State where the securities are intended to be offered to the public for the first time or where the first application for admission to trading on a regulated market is made, at the choice of the issuer, the offeror or the person asking for admission, subject to a subsequent choice by issuers established in a third country in either of the following circumstances:

2016/04/21
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 2

2. In order to take account of technical developments on financial markets, the Commission shall be empowered to adopt delegated acts in accordance with Article 42 to specify some technical elements of the definitions laid down in paragraph 1 of this Article, ~~including~~with the exception of the adjustment of the figures established in the definition of 'small and medium-sized enterprises (SMEs)' in point (f) of paragraph 1, taking into account the situation on different national markets, including the classification of enterprises used by the operators of regulated markets and multilateral trading facilities, Union legislation and recommendations as well as economic developments.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 2

2. A Member State may exempt offers of securities to the public from the prospectus requirement of paragraph 1 provided that: (a) the offer is made only in that Member State, and (b) the total consideration of the offer is less than a monetary amount calculated over a period of 12 months, which shall not exceed EUR 10 000 000. Member States shall notify the Commission and ESMA of the exercise of the option under this paragraph, including the consideration of the offer chosen below which the exemption for domestic offers applies.deleted

2016/04/21
Committee: ECON

Proposal for a regulation
Article 7 – paragraph 6 – point c

(c) under a sub-section titled 'What are the key risks that are specific to the issuer?' a brief description of ~~no more than five of~~ the most material risk factors specific to the issuer contained in the category of highest materiality according to Article 16.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 7 – paragraph 7 – subparagraph 1 – point a – indent 1

- their type and class including information on the level of subordination, any security identification number, their currency, denomination, par value, the number of securities issued, the term of the securities;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 7 – paragraph 7 – subparagraph 1 – point a – indent 2

- the rights attached to the securities and how they may be affected by insolvency or, where applicable, resolution;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 7 – paragraph 7 – subparagraph 1 – point d

(d) under a sub-section titled 'What are the key risks that are specific to the securities?' a brief description of ~~no more than five of~~ the most material risk factors specific to the securities, contained in the category of highest materiality according to Article 16.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 11 – paragraph 2 – subparagraph 2

~~However,~~ Member States shall ensure that no civil liability shall attach to any person, solely on the basis of the summary, including any translation thereof, ~~unless~~if it is misleading, inaccurate or inconsistent, when read together with the other parts of the prospectus, or it does not provide, when read together with the other parts of the prospectus, key information in order to aid investors when considering whether to invest in such securities. The summary shall contain a clear warning to that effect.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 14 – paragraph 2

2. By derogation to article 6(1), and without prejudice to Article 17(2), the prospectus drawn up under the minimum disclosure regime for secondary issuances shall contain the relevant information which is necessary to enable investors to understand the prospects of the issuer and of any guarantor, based on minimum financial information included or incorporated by reference into the prospectus covering the last financial year only, the rights attaching to the securities, the reasons for the issuance and its impact on the issuer, including at least the impact on the overall capital structure, a working capital statement and a clear and concise summary of relevant information disclosed under Regulation (EU) No 596/2014 and Directive 2004/109/EC since the date of the last issue. The information contained in the prospectus shall be presented in an easily analysable, succinct and comprehensible form and shall enable investors to make an informed investment decision.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 15 – paragraph 1 – subparagraph 1

SMEs may choose to draw up a prospectus under the minimum disclosure regime for SMEs in the case of an offer of securities to the public provided that they have no securities admitted to trading on a regulated market and the total consideration in the Union of the offer is less than EUR 10 000 000, which shall be calculated over a period of 12 months.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 15 – paragraph 1 – subparagraph 2

The minimum disclosure regime shall consist of a specific registration document and a specific securities note. The summary shall include all the information set out in Article 7 that is applicable to the specific size of the company.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 16 – paragraph 1 – subparagraphs 1 a, 1 b and 1 c (new)

A description of more general risks which might have an impact on the issuer and on the securities shall also be reported, including the expected magnitude of their negative impact. Risks factors shall also include those due to the level of subordination of a security and the impact on the expected size or timing of payments to holders of the securities under bankruptcy, or any other similar procedure, including, where relevant, the insolvency of a credit institution or its resolution or restructuring in accordance with Directive 2014/59/EU (BRRD). Where the risk factors in the previous subparagraph represent material risks, they shall be prominently referred to in the introduction containing warnings of the summary described in Article 7 (4)(a).

2016/04/21
Committee: ECON

Proposal for a regulation
Article 16 – paragraph 2

2. ~~ESMA shall develop guidelines on the assessment by competent authorities of the specificity and materiality of risk factors and on the allocation of risk factors across categories~~In order to ensure consistent harmonisation in relation to this Article, ESMA may develop draft regulatory technical standards on the minimum requirements for the assessment of the specificity and materiality of risk factors and on the allocation of risk factors across categories. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 19 – paragraph 8

8. This Regulation shall not affect the competent authority's liability, which shall continue to be governed solely by national law. Member States shall ensure that their national provisions on the liability of competent authorities apply only to approvals of prospectuses by their competent authority.deleted

2016/04/21
Committee: ECON

Proposal for a regulation
Article 21 – paragraph 4 a (new)

4a. When according to this Regulation, no prospectus is required to be published, material information provided by an issuer or an offeror and addressed to qualified investors or special categories of investors, including information disclosed in the context of meetings relating to offers of securities, shall be disclosed to all qualified investors or special categories of investors to whom the offer is exclusively addressed. Where a prospectus is required to be published, such information shall be included in the prospectus or in a supplement to the prospectus in accordance with Article 22(1).

2016/04/21
Committee: ECON

Proposal for a regulation
Article 21 – paragraph 5 – subparagraph 1

5. The competent authority of the home Member State, in consultation with the competent authority of the host Member State, shall have the power to exercise control over the compliance of advertising activity, relating to an offer to the public of securities or an admission to trading on a regulated market, with the principles referred to in paragraphs 2 to 4.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 21 – paragraph 5 – subparagraph 1 a (new)

Notwithstanding the first subparagraph, where the competent authority of the host Member State determines that investor protection or financial stability would be undermined by the standards required by the competent authority of the home Member State, the competent authority of the host Member State may refer the matter to ESMA under Article 19 of [the ESMA Regulation].

2016/04/21
Committee: ECON

Proposal for a regulation
Article 22 – paragraph 1 – subparagraph 2

Such a supplement shall be approved in the same way as a prospectus in a maximum of five working days notified directly to the investors concerned by electronic and physical means and published in accordance with at least the same arrangements as were applied when the original prospectus was published in accordance with Article 20. The summary, and any translations thereof, shall also be supplemented, where necessary, to take into account the new information included in the supplement.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 22 – paragraph 2

2. Where the prospectus relates to an offer of securities to the public, investors who have already agreed to purchase or subscribe for the securities before the supplement is published shall have the right, exercisable within two ~~working day~~calendar months after the publication of the supplement, to withdraw their acceptances~~, provided that the new factor, mistake or inaccuracy referred to in paragraph 1 arose before the final closing of the offer to the public or the delivery of the securities, whichever occurs fir~~ at no cost. That period may be extended by the issuer or the offeror. The final date of the right of withdrawal shall be stated in the supplement.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 30 – paragraph 2 – introductory part

2. Competent authorities shall exercise their functions and powers, referred to in paragraph 1, to the fullest extent necessary to exercise their responsibility for supervising compliance with this Regulation and for approving the prospectus in any of the following ways:

2016/04/21
Committee: ECON

Proposal for a regulation
Article 36 – paragraph 2 – point c

(c) maximum administrative pecuniary sanctions of at least t~~wice~~hree times the amount of the profits gained or losses avoided or the losses inflicted on third parties because of the infringement where those can be determined;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 36 – paragraph 2 – point c a (new)

(ca) minimum administrative pecuniary sanctions of at least the amount of the profits gained or losses avoided or the losses inflicted on third parties because of the infringement, where those can be determined;

2016/04/21
Committee: ECON

Proposal for a regulation
Article 36 – paragraph 2 – point d – subparagraph 1

(d) where the profits or losses referred to in points (a) to (c) cannot be determined, in the case of a legal person, maximum administrative pecuniary sanctions of at least EUR 5 000 000, or, in the Member States whose currency is not the euro, the corresponding value in the national currency on [insert date of entry into force], or 3% of the total annual turnover of that legal person according to the last available financial statements approved by the management body, whichever sum is greater.

2016/04/21
Committee: ECON

Proposal for a regulation
Article 45 – paragraph 2 – point c a (new)

(ca) statistics on the costs of producing a prospectuses broken down at least by different classes of issuers, sizes of issue and locations as well as the classes of fees and charges incurred by issuers and the classes of service providers that charge them; the statistics shall be accompanied by an analysis of the effectiveness of competition between services providers involved in drawing up prospectuses and recommendations on how to reduce costs;

2016/04/21
Committee: ECON