Commission Delegated Regulation (EU) 2020/1273 of 4 June 2020 amending and correcting Delegated Regulation (EU) 2019/980 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 (Text with EEA relevance)

• CELEX: Delegated Regulation (EU) 2020/1273
• Articles: 14

Article 1 Amendments to Delegated Regulation (EU) 2019/980

Delegated Regulation (EU) 2019/980 is amended as follows:

(1)

Article 2 is replaced by the following:

‘Article 2

Registration document for equity securities

1.   For equity securities, the registration document shall contain the information referred to in Annex 1 to this Regulation, unless it is drawn up in accordance with Articles 9, 14 or 15 of Regulation (EU) 2017/1129.

2.   By way of derogation from paragraph 1, the registration document for the following securities, where those securities are not shares or other transferrable securities equivalent to shares, may be drawn up in accordance with Article 7 of this Regulation for retail securities or Article 8 of this Regulation for wholesale securities:

(a)

the securities referred to in Articles 19(1) and 20(1) of this Regulation;

(b)

the securities referred to in Article 19(2) of this Regulation, where those securities are exchangeable for or convertible into shares that are or will be issued by an entity belonging to the issuer’s group and that are not admitted to trading on a regulated market;

(c)

the securities referred to in Article 20(2) of this Regulation, where those securities give the right to subscribe or acquire shares that are or will be issued by an entity belonging to the issuer’s group and that are not admitted to trading on a regulated market.’;

(2)

Article 4 is replaced by the following:

‘Article 4

Registration document for secondary issuances of equity securities

1.   A specific registration document for equity securities that is drawn up in accordance with Article 14 of Regulation (EU) 2017/1129 shall contain the information referred to in Annex 3 to this Regulation.

2.   By way of derogation from paragraph 1, the registration document for the following securities, where those securities are not shares or other transferrable securities equivalent to shares, may be drawn up in accordance with Article 9:

(a)

the securities referred to in Articles 19(1) and 20(1) of this Regulation;

(b)

the securities referred to in Article 19(2) of this Regulation, where those securities are exchangeable for or convertible into shares that are or will be issued by an entity belonging to the issuer’s group and that are not admitted to trading on a regulated market;

(c)

the securities referred to in Article 20(2) of this Regulation, where those securities give the right to subscribe or acquire shares that are or will be issued by an entity belonging to the issuer’s group and that are not admitted to trading on a regulated market.’;

(3)

Article 12 is replaced by the following:

‘Article 12

Securities note for equity securities or units issued by collective investment undertakings of the closed-end type

1.   For equity securities or units issued by collective investment undertakings of the closed-end type, the securities note shall contain the information referred to in Annex 11 to this Regulation, unless it is drawn up in accordance with Articles 14 or 15 of Regulation (EU) 2017/1129.

2.   By way of derogation from paragraph 1, the securities note for the securities referred to in paragraphs 1 and 2 of Article 19 and paragraphs 1 and 2 of Article 20 of this Regulation, where those securities are not shares or other transferrable securities equivalent to shares, shall be drawn up in accordance with Article 15 of this Regulation for retail securities or Article 16 of this Regulation for wholesale securities.’;

(4)

Article 13 is replaced by the following:

‘Article 13

Securities note for secondary issuances of equity securities or of units issued by collective investment undertakings of the closed-end type

1.   A specific securities note for equity securities or units issued by collective investment undertakings of the closed-end type that is drawn up in accordance with Article 14 of Regulation (EU) 2017/1129 shall contain the information referred to in Annex 12 to this Regulation.

2.   By way of derogation from paragraph 1, the specific securities note for the securities referred to in paragraphs 1 and 2 of Article 19 and paragraphs 1 and 2 of Article 20 of this Regulation, where those securities are not shares or other transferrable securities equivalent to shares, shall be drawn up in accordance with Article 17 of this Regulation.’;

(5)

in Article 24, paragraph 4 is replaced by the following:

‘4.

Where a universal registration document is used for the purposes of Article 9(12) of Regulation (EU) 2017/1129, the information referred to in that Article shall be presented in accordance with Commission Delegated Regulation (EU) 2019/815  ( *1 ) .

( *1 )   Commission Delegated Regulation (EU) 2019/815 of 17 December 2018 supplementing Directive 2004/109/EC of the European Parliament and of the Council with regard to regulatory technical standards on the specification of a single electronic reporting format ( OJ L 143, 29.5.2019, p. 1 ).’;"

(6)

in Article 25, paragraph 5 is replaced by the following:

‘5.

Where a universal registration document is used for the purposes of Article 9(12) of Regulation (EU) 2017/1129, the information referred to in that Article shall be presented in accordance with Commission Delegated Regulation (EU) 2019/815.’;

(7)

Article 28 is replaced by the following:

‘Article 28

EU Growth registration document for equity securities

1.   A specific registration document for equity securities drawn up in accordance with Article 15 of Regulation (EU) 2017/1129 shall contain the information referred to in Annex 24 to this Regulation.

2.   By way of derogation from paragraph 1, the specific registration document for the following securities, where those securities are not shares or other transferrable securities equivalent to shares, may be drawn up in accordance with Article 29 of this Regulation:

(a)

the securities referred to in Articles 19(1) and 20(1) of this Regulation;

(b)

the securities referred to in Article 19(2) of this Regulation, where those securities are exchangeable for or convertible into shares that are or will be issued by an entity belonging to the issuer’s group and that are not admitted to trading on a regulated market;

(c)

the securities referred to in Article 20(2) of this Regulation, where those securities give the right to subscribe or acquire shares that are or will be issued by an entity belonging to the issuer’s group and that are not admitted to trading on a regulated market.’;

(8)

Article 30 is replaced by the following:

‘Article 30

EU Growth securities note for equity securities

1.   A specific securities note for equity securities drawn up in accordance with Article 15 of Regulation (EU) 2017/1129 shall contain the information referred to in Annex 26 to this Regulation.

2.   By way of derogation from paragraph 1, the specific securities note for the securities referred to in paragraphs 1 and 2 of Article 19 and paragraphs 1 and 2 of Article 20 of this Regulation, where those securities are not shares or other transferrable securities equivalent to shares, shall be drawn up in accordance with Article 31 of this Regulation.’;

(9)

in Article 32(1), point (e) is replaced by the following:

‘(e)

the information referred to in section 1 of Annex 24 and section 1 of Annex 26, or the information referred to in section 1 of Annex 25 and section 1 of Annex 27 to this Regulation, depending on the type of securities;’;

(10)

in Article 32(1), point (g) is replaced by the following:

‘(g)

for equity securities, the information referred to in item 2.1 of Annex 26 and, where equity securities are issued by an issuer with a market capitalisation above EUR 200 000 000, the information referred to in item 2.2 of Annex 26 to this Regulation;’;

(11)

in Article 32(1), the following points (p) and (q) are added:

‘(p)

where information on the underlying share is required pursuant to Article 19(2), point (b), Article 19(3) or Article 20(2), point (b) of this Regulation, the information referred to in section 6 of Annex 26 to this Regulation or the information referred to in section 6 of Annex 27 to this Regulation, depending on the type of securities;

(q)

where the issuer or the person responsible for drawing up a prospectus consents to its use as referred to in the second subparagraph of Article 5(1) of Regulation (EU) 2017/1129, the information referred to in section 7 of Annex 26 or in section 7 of Annex 27 to this Regulation, depending on the type of securities.’;

(12)

the following Article 46a is inserted:

‘Article 46a

Prospectuses approved between 21 July 2019 and 16 September 2020

Prospectuses that have been approved between 21 July 2019 and 16 September 2020 shall continue to be valid until the end of their validity.’;

(13)

Annex 1 is amended in accordance with Annex I to this Regulation;

(14)

Annex 3 is amended in accordance with Annex II to this Regulation;

(15)

Annex 4 is amended in accordance with Annex III to this Regulation;

(16)

Annex 6 is amended in accordance with Annex IV to this Regulation;

(17)

Annex 7 is amended in accordance with Annex V to this Regulation;

(18)

Annex 8 is amended in accordance with Annex VI to this Regulation;

(19)

Annex 9 is amended in accordance with Annex VII to this Regulation;

(20)

Annex 16 is amended in accordance with Annex VIII to this Regulation;

(21)

Annex 24 is amended in accordance with Annex IX to this Regulation;

(22)

Annex 25 is amended in accordance with Annex X to this Regulation;

(23)

Annex 26 is amended in accordance with Annex XI to this Regulation;

(24)

Annex 27 is amended in accordance with Annex XII to this Regulation.

Article 2 Corrections to Delegated Regulation (EU) 2019/980

(1)

in Article 33 of Delegated Regulation (EU) 2019/980, paragraph 7 is replaced by the following:

‘7.

The specific summary may use sub-headings to present the information referred to in sections 2, 3 and 4 of Annex 23 to this Regulation.’;

(2)

in Article 42(2), point (g) is replaced by the following:

‘(g)

an appendix where required by Article 26(4) of Regulation (EU) 2017/1129, unless no summary is required pursuant to the second subparagraph of Article 7(1) of that Regulation;’.

Article 3 Entry into force and date of application

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union .

However, Article 1, points (1) to (8), and Article 2 shall apply from 21 July 2019.

Schedules & Appendices

ANNEX I

ANNEX I

Section 18 of Annex 1 is amended as follows:

(1)

item 18.3.1 is replaced by the following:

‘ Item 18.3.1

The historical annual financial information must be independently audited. The audit report shall be prepared in accordance with Directive 2006/43/EC of the European Parliament and of the Council  ( *1 ) and Regulation (EU) No 537/2014 of the European Parliament and of the Council  ( *2 ) .

Where Directive 2006/43/EC and Regulation (EU) No 537/2014 do not apply, the historical annual financial information must be audited or reported on as to whether or not, for the purposes of the registration document, it gives a true and fair view in accordance with auditing standards applicable in a Member State or an equivalent standard.

(2)

the following item 18.3.1a is inserted:

‘ Item 18.3.1a

Where audit reports on the historical financial information have been refused by the statutory auditors or where they contain qualifications, modifications of opinion, disclaimers or an emphasis of matter , the reason must be given, and such qualifications, modifications, disclaimers or emphasis of matter must be reproduced in full.’.

ANNEX II

ANNEX II

Section 11 of Annex 3 is amended as follows:

(1)

item 11.2.1 is replaced by the following:

‘ Item 11.2.1

Audit report

The annual financial statements must be independently audited. The audit report shall be prepared in accordance with Directive 2006/43/EC and Regulation (EU) No 537/2014.

Where Directive 2006/43/EC and Regulation (EU) No 537/2014 do not apply, the annual financial statements must be audited or reported on as to whether or not, for the purposes of the registration document, it gives a true and fair view in accordance with auditing standards applicable in a Member State or an equivalent standard. Otherwise, the following information must be included in the registration document:

(a)

a prominent statement disclosing which auditing standards have been applied;

(b)

an explanation of any significant departures from International Standards on Auditing.’;

(2)

the following item 11.2.1a is inserted:

‘ Item 11.2.1a

Where audit reports on the annual financial statements have been refused by the statutory auditors or where they contain qualifications, modifications of opinion, disclaimers or an emphasis of matter, the reason must be given, and such qualifications, modifications, disclaimers or emphasis of matter must be reproduced in full.’.

ANNEX III

ANNEX III

In Annex 4, the introduction preceding Section 1 is replaced by the following:

‘In addition to the information required in this Annex, a collective investment undertaking must provide the information required in sections/items 1, 2, 3, 4, 6, 7.1, 7.2.1, 8.4, 9 (although the description of the regulatory environment that the issuer operates in, need only relate to the regulatory environment relevant to the issuer’s investments), 11, 12, 13, 14, 15.2, 16, 17, 18 (except for pro forma financial information), 19, 20 and 21 of Annex 1 to this Regulation, or, where the collective investment undertaking meets the requirements of Article 14(1) of Regulation (EU) 2017/1129, the information required in sections/items 1, 2, 3, 4, 7, 8, 9, 10, 11 (except for pro forma financial information), 12, 13, 14 and 15 of Annex 3 to this Regulation.

Where units are issued by a collective investment undertaking which is constituted as a common fund managed by a fund manager, the information referred to in sections/items 6, 12, 13, 14, 15.2, 16 and 20 of Annex 1 to this Regulation shall be disclosed in relation to the fund manager, while the information referred to in items 2, 4 and 18 of Annex 1 to this Regulation shall be disclosed in relation to both the fund and the fund manager.’.

ANNEX IV

ANNEX IV

Section 11 of Annex 6 is amended as follows:

(1)

item 11.3.1 is replaced by the following:

‘Item 11.3.1

The historical annual financial information must be independently audited. The audit report shall be prepared in accordance with Directive 2006/43/EC and Regulation (EU) No 537/2014.

Where Directive 2006/43/EC and Regulation (EU) No 537/2014 do not apply, the historical financial information must be audited or reported on as to whether or not, for the purposes of the registration document, it gives a true and fair view in accordance with auditing standards applicable in a Member State or an equivalent standard.’;

(2)

the following item 11.3.1a is inserted:

‘Item 11.3.1 a

Where audit reports on the historical financial information have been refused by the statutory auditors or where they contain qualifications, modifications of opinion, disclaimers or an emphasis of matter, the reason must be given, and such qualifications, modifications, disclaimers or emphasis of matter must be reproduced in full.’.

ANNEX V

ANNEX V

Section 11 of Annex 7 is amended as follows:

(1)

item 11.2.1 is replaced by the following:

‘Item 11.2.1

The historical annual financial information must be independently audited. The audit report shall be prepared in accordance with Directive 2006/43/EC and Regulation (EU) No 537/2014.

Where Directive 2006/43/EC and Regulation (EU) No 537/2014 do not apply, the historical financial information must be audited or reported on as to whether or not, for the purposes of the registration document, it gives a true and fair view in accordance with auditing standards applicable in a Member State or an equivalent standard. Otherwise, the following information must be included in the registration document:

(a)

a prominent statement disclosing which auditing standards have been applied;

(b)

an explanation of any significant departures from International Standards on Auditing.’;

(2)

the following item 11.2.1a is inserted:

‘Item 11.2.1a

Where audit reports on the historical financial information have been refused by the statutory auditors or where they contain qualifications, modifications of opinion, disclaimers or an emphasis of matter, the reason must be given, and such qualifications, modifications, disclaimers or emphasis of matter must be reproduced in full.’.

ANNEX VI

ANNEX VI

Section 10 of Annex 8 is amended as follows:

(1)

item 10.2.1 is replaced by the following:

‘Item 10.2.1

Audit report

The annual financial statements must be independently audited. The audit report shall be prepared in accordance with Directive 2006/43/EC and Regulation (EU) No 537/2014.

Where Directive 2006/43/EC and Regulation (EU) No 537/2014 do not apply, the annual financial statements must be audited or reported on as to whether or not, for the purposes of the registration document, it gives a true and fair view in accordance with auditing standards applicable in a Member State or an equivalent standard. Otherwise, the following information must be included in the registration document:

(a)

a prominent statement disclosing which auditing standards have been applied;

(b)

an explanation of any significant departures from International Standards on Auditing.’;

(2)

the following item 10.2.1a is inserted:

‘ Item 10.2.1a

Where audit reports on the annual financial statements have been refused by the statutory auditors or where they contain qualifications, modifications of opinion, disclaimers or an emphasis of matter, the reason must be given, and such qualifications, modifications, disclaimers or emphasis of matter must be reproduced in full.’.

ANNEX VII

ANNEX VII

Section 8 of Annex 9 is amended as follows:

(1)

item 8.2.a.3 is replaced by the following:

‘Item 8.2.a.3

Audit report

The historical annual financial information must be independently audited. The audit report shall be prepared in accordance with Directive 2006/43/EC and Regulation (EU) No 537/2014.

Where Directive 2006/43/EC and Regulation (EU) No 537/2014 do not apply, the historical financial information must be audited or reported on as to whether or not, for the purposes of the registration document, it gives a true and fair view in accordance with auditing standards applicable in a Member State or an equivalent standard. Otherwise, the following information must be included in the registration document:

(a)

a prominent statement disclosing which auditing standards have been applied;

(b)

an explanation of any significant departures from International Standards on Auditing.’;

(2)

the following item 8.2.a.4 is inserted:

‘Item 8.2.a.4

A statement that the historical financial information has been audited. Where audit reports on the historical financial information have been refused by the statutory auditors or where they contain qualifications, modifications of opinion, disclaimers or an emphasis of matter, the reason must be given, and such qualifications, modifications, disclaimers or emphasis of matter must be reproduced in full.’.

ANNEX VIII

ANNEX VIII

Annex 16 is amended as follows:

(1)

item 4.1 is replaced by the following:

‘Item 4.1

(a)

a description of the type, class and amount of the securities being offered to the public and/or admitted to trading;

(b)

the international security identification number (‘ISIN’) of the securities being offered to the public and/or admitted to trading.’;

Category B

Category C

(2)

the following item 7.3.a is inserted:

‘Item 7.3.a

(Retail only)

Where the summary is substituted in part with the information set out in points (c) to (i) of paragraph 3 of Article 8 of Regulation (EU) No 1286/2014, all such information must be disclosed to the extent it is not already disclosed elsewhere in the securities note.’.

Category C

ANNEX IX

ANNEX IX

Section 5 of Annex 24 is amended as follows:

(1)

item 5.3.1 is replaced by the following:

‘Item 5.3.1

The historical annual financial information must be independently audited. The audit report shall be prepared in accordance with Directive 2006/43/EC and Regulation (EU) No 537/2014.

Where Directive 2006/43/EC and Regulation (EU) No 537/2014 do not apply, the historical financial information must be audited or reported on as to whether or not, for the purposes of the registration document, it gives a true and fair view in accordance with auditing standards applicable in a Member State or an equivalent standard.’;

(2)

the following item 5.3.1a is inserted:

‘ Item 5.3.1a

Where audit reports on the historical financial information have been refused by the statutory auditors or where they contain qualifications, modifications of opinion, disclaimers or an emphasis of matter, the reason must be given, and such qualifications, modifications, disclaimers or emphasis of matter must be reproduced in full.’;

ANNEX XI

ANNEX XI

Annex 26 is amended as follows:

(1)

Section 2 is replaced by the following:

‘SECTION 2

WORKING CAPITAL STATEMENT AND STATEMENT OF CAPITALISATION AND INDEBTEDNESS

The disclosure under this section provides information on the issuer’s working capital requirements and its capitalisation and indebtedness.

Item 2.1

Working capital statement

Statement by the issuer that, in its opinion, the working capital is sufficient for the issuer’s present requirements or, if not, how it proposes to provide the additional working capital needed.

Item 2.2

Issuers with market capitalisation above EUR 200 000 000 only

Capitalisation and indebtedness

A statement of capitalisation and indebtedness (distinguishing between guaranteed and unguaranteed, secured and unsecured indebtedness) as of a date no earlier than 90 days prior to the date of the document. The term ‘indebtedness’ also includes indirect and contingent indebtedness.

In the case of material changes in the capitalisation and indebtedness position of the issuer within the 90 day period, additional information shall be given through the presentation of a narrative description of such changes or through the updating of those figures.’;

(2)

the following item 4.2 is inserted:

‘Item 4.2

In the case of issuance of shares with warrants, the information referred to in Article 20(2).’;

(3)

the following sections 6 and 7 are added:

‘SECTION 6

UNDERLYING SHARE INFORMATION (WHERE APPLICABLE)

Item 6.1

Where applicable, the information referred to in Annex 18.

‘SECTION 7

CONSENT INFORMATION (WHERE APPLICABLE)

Item 7.1

Where the issuer or the person responsible for drawing up a prospectus consents to its use as referred to in the second subparagraph of Article 5(1) of Regulation (EU) 2017/1129, the following additional information:

(a)

the information referred to in sections 1 and 2A of Annex 22 to this Regulation where the consent is provided to one or more specified financial intermediaries;

(b)

the information referred to in sections 1 and 2B of Annex 22 to this Regulation where the consent is given to all financial intermediaries.’.

ANNEX XII

ANNEX XII

Annex 27 is amended as follows:

(1)

section 3 is amended as follows:

(a)

item 3.1.17 is deleted;

(b)

the following item 3.2 is inserted:

‘Item 3.2

Information on derivative securities

In the case of issuance of derivative securities, the following information:

(a)

for derivative securities referred to in Article 20(1), the information referred to in that paragraph;

(b)

for derivative securities referred to in Article 20(2), the information referred to in that paragraph;

(c)

for derivative securities referred to in Article 20(3), the information referred to in that paragraph.’;

(2)

the following sections 6 and 7 are added:

‘SECTION 6

UNDERLYING SHARE INFORMATION (WHERE APPLICABLE)

Item 6.1

(a)

Where applicable, the information referred to in items 2.1 and 2.2 of Annex 26 in respect of the issuer of the underlying share.

(b)

Where applicable, the information referred to in Annex 18.

SECTION 7

CONSENT INFORMATION (WHERE APPLICABLE)

Item 7.1

Where the issuer or the person responsible for drawing up a prospectus consents to its use as referred to in the second subparagraph of Article 5(1) of Regulation (EU) 2017/1129, the following additional information:

(a)

the information referred to in sections 1 and 2A of Annex 22 to this Regulation where the consent is provided to one or more specified financial intermediaries;

(b)

the information referred to in sections 1 and 2B of Annex 22 to this Regulation where the consent is given to all financial intermediaries.’.