Royal Decree 878/2015 of 2 October (“RD 878/2015”) implements in Spain Directive 2013/50/EU of the European Parliament and of the Council of 22 October 2013 amending, amongst others, Directive 2004/109/EC of the European Parliament and of the Council on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market (the “Transparency Directive”).
In particular, RD 878/2015 modifies Royal Decree 1362/2007 of 19 October on transparency requirements (“RD 1362/2007”), with respect to major shareholding disclosure requirements in relation to shares of issuers for which Spain is the home Member State and which are admitted to trading on a Spanish regulated market or in any other EU regulated market (“Spanish Equities”).
This new disclosure regime entered into force on 27 November 2015 and has an impact on disclosure of derivatives on Spanish Equities. In the following sections we summarise the main changes with respect to disclosure of derivatives on Spanish Equities.
DISCLOSURE OF LONG POSITIONS IN CASH SETTLED EQUITY DERIVATIVES
Under RD 1362/2007, financial instruments on Spanish Equities had to be disclosed (if the relevant thresholds were crossed – with minimum threshold at 3% and 1% if the investor was domiciled in a tax haven) if on maturity they granted the right to acquire, on the holder’s own initiative alone, under a formal agreement, issued shares to which voting rights were attached. The instrument holder would have enjoyed either the unconditional right to acquire the underlying shares or the discretion as to the right to acquire such shares or not. Therefore, only physically settled derivatives on Spanish Equities needed to be disclosed.
The amendments introduced by RD 878/2015 extend the disclosure obligation on Spanish Equities to include any financial instrument other than those already covered by RD 1362/2007 that have similar economic effect to the above, irrespective of whether or not they confer a right to physical settlement.
This means that, as of 27 November 2015, all financial instruments that confer a long position in respect of shares must be disclosed. In other words, derivatives such as cash settled call options (the buyer or holder being required to disclose) and put options that can be cash or physically settled (the seller or grantor being required to disclose) shall also fall under the disclosure obligation.
CALCULATION OF VOTING RIGHTS RELATED TO DERIVATIVES
Voting rights are calculated differently depending on how derivatives on Spanish Equities are settled.
- Where derivatives provide for physical settlement, the number of related voting rights is calculated by reference to the full notional amount of underlying shares.
- Where derivatives provide for cash settlement only, the number of voting rights is calculated by multiplying the notional amount of underlying shares by the delta of the instrument (the delta indicates how much a financial instrument’s theoretical value would vary in the event of variation in price of the underlying shares).
Specific rules for calculating voting rights are laid down in Commission Delegated Regulation (EU) 2015/761 of 17 December 2014, supplementing the Transparency Directive. They mainly relate to financial instruments referenced to a basket of shares or an index and to financial instruments providing exclusively for a cash settlement.
AGGREGATION OF POSITIONS IN SHARES AND DERIVATIVES
Another significant change in the disclosure regime of Spanish Equities is the aggregation of shares and derivatives for the purposes of the calculation of the relevant disclosure threshold.
Until 27 November 2015, in order to determine whether it was necessary to disclose a particular shareholding, shares and financial instruments with underlying shares of the same issuer had to be considered separately. Acquisitions or disposals of voting rights regarding shares were disclosed separately to those of financial instruments.
Therefore, an investor could acquire shares for 2.99% of the voting rights of an issuer and hold a physically settled call option over a further 2.99%, (almost 6% of the voting rights in total) without having to make any disclosure.
The new rules extend the disclosure obligation to those cases where an investor reaches, exceeds or falls below any of the relevant thresholds as a result of aggregating voting rights held related to shares and voting rights held related to the relevant financial instruments.
Therefore, a holding of a 1.5% stake in shares and a 1.5% long position on a derivative – either physically or cash settled – on an issuer will be subject to disclosure.
Question 20 of the European Securities and Markets Authority (“ESMA”) Questions and Answers document on the Transparency Directive (Document ESMA/2015/1595) includes a practical example of different scenarios in which the aggregation of holdings in shares and derivatives trigger disclosure.
INFORMATION TO BE INCLUDED IN NOTIFICATIONS
The information to disclose on major shareholdings shall include a breakdown of the number of voting rights attached to holdings of shares and the number of voting rights related to holdings of financial instruments.
In respect of financial instruments, a distinction needs to be made between (a) those which, on maturity, grant the unconditional right to acquire, on the holder’s own initiative alone and under a formal agreement, issued shares to which voting rights are attached, and (b) other disclosable instruments. Within (b), financial instruments that are physically settled need to be distinguished from those that are cash settled.
On 24 November 2015, the Spanish securities regulator, the Comisión Nacional del Mercado de Valores (“CNMV”) issued a proposal for a Circular regarding the standard forms for notification of major shareholdings. The proposal follows the standard notification form issued by ESMA on 22 October 2015 (Document ESMA/2015/1597) with some country specific adaptations. Once the new Circular is published and enters into force (it is likely that it will be published soon and will apply from Q2 2016), major shareholdings in Spanish Equities will need to be notified through such standard forms. Until then, major shareholdings in Spanish Equities will need to be notified through to the existing standard forms provided under the CNMV Circular 2/2007, of 19 December.