This Listing Briefing addresses the process of migrating debt securities that are admitted to trading on another Member State's regulated market to list in Ireland.
The Central Bank of Ireland ("CBI"), in preparation for Brexit, has published useful guidance on how debt securities can be migrated to list on the Regulated Market in Ireland, which may be of assistance to issuers of debt securities who are listed in London.
In the case of a valid base prospectus, how does an issuer who has securities listed on a regulated market arrange for these to be migrated to another regulated market?
An issuer of securities admitted to trading on a regulated market can request the competent authority of the jurisdiction they wish to list in, for example, the CBI, to passport the approved base prospectus to that regulated market.
Please note: In order to passport securities into another regulated market, the base prospectus must cater for the passporting of securities into another jurisdiction. If the base prospectus does not cater for passporting, a supplement addressing passporting must be produced (article 2(f) of the Regulatory Technical Standard on Supplements).
Regulation 13 of the Irish Regulations states that no securities shall be admitted to trading without the prior publication of a prospectus. Are there exemptions to this requirement in the case of an issuer migrating its listed securities from one regulated market to the Regulated Market in Ireland?
Yes provided a number of conditions are fulfilled (Regulation 11(1)(h) (Prospectus (Directive 2003/71/EC) Regulations 2005, as amended) (the `Irish Prospectus Regulations'). Securities which are intended to be migrated to the Regulated Market in Ireland must satisfy the following conditions:
1. the securities, or the securities of the same class, have been admitted to trading on that other regulated market for more than 18 months;
2. the securities which are admitted to trading currently are associated with an approved pro spectus, which is available to the public;
3. for securities first admitted to listing between 30 June 1983 and 31 December 2003, the listing particulars must have been approved in accordance with the requirements of Directive 80/390/EEC or Directive 2001/34/EC;
4. the ongoing obligations for trading on the other regulated market have been fulfilled; and
5. the issuer seeking the admission of its securities to the Irish Regulated Market must produce a Summary ("Summary") (in line with the disclosure requirements set out in Annex XXII of Commission Regulation 809/2004/EC) and make it available to the public in the manner specified in Regulation 45 and in a language accepted by the CBI (i.e. in English or Irish).
What must be contained in the Summary referenced above?
The Summary must comply with Annex XXII as well as the requirements of Regulation 21 of the Irish Prospectus Regulations, and state that the Summary must:
1. be brief and written in non-technical language;
2. convey the essential characteristics and risks associated with the securities, the issuer, and any guarantor; and
3. state where the most recent prospectus can be obtained (or if no recent prospectus in respect of the securities has been published, this must be stated and state where the issuer's most recent financial information is available, pursuant to the issuer's ongoing disclosure obligations).
Where no Prospectus has been recently published, is the issuer obliged to make further disclosures?
Yes further to the Summary requirement, where no prospectus has been recently published in respect of the securities, a warning similar to that referred to in Regulation 21(3) of the Irish Prospectus Regulations is required. Regulation 21(3) provides the following:
1. the Summary should be read as an introduction to the prospectus;
2. any decision to invest in the securities should be based on consideration of the whole of the prospectus by the investor;
3. where a claim relating to the information contained in a prospectus is brought before a court, the plaintiff investor might in some circumstances, depending on the national legislation of the Member State where the claim is instituted, bear the costs of translating the prospectus; and
4. civil liability attaches to those persons responsible under law for the contents of the prospectus, but only if the Summary is misleading inaccurate or inconsistent when read together with the whole of the prospectus.
Is an issuer required to submit a separate Summary for each newly listed different security to be traded on the regulated market?
Generally, the requirement is that a separate Summary, complying with Regulation 21 of the Irish Prospectus Regulations, is required for each security. Article 24(3) of the Irish Prospectus Regulation contains an exception to the requirement to have separate summaries for multiple securities. That article sets out the circumstances and conditions in which a single Summary may be produced for multiple securities such as where the final terms relate to several securities which differ only in some very limited details (for example the issue price or maturity date). In such a case, one single Summary of the individual issue may be attached for all those securities, provided the information referring to the different securities is clearly segregated.
The Summary of the individual issue is subject to the same requirements as the final terms and is annexed to them.
The above approach is subject to the comprehensibility of any single Summary not being adversely affected. Article 24(1) of the Irish Prospectus Regulation also sets out the requirements for the size of such Summary (i.e. the Summary is not to exceed 7% of the length of the prospectus or 15 pages, whichever is longer).
Please also note the content of ESMA Q&A 91.
Does the CBI review such summaries?
No the CBI will not review such summaries, however they reserve the right to impose sanctions pursuant to Part 15 of the Irish Prospectus Regulations in the event that prospectus law is contravened.
Please note: however that the Summary is required to be sent to Euronext Dublin, along with a copy of the approved Prospectus, in order for Euronext Dublin to ensure compliance with its listing conditions. Euronext Dublin will review and return any comments within two business days from the initial submission. Euronext Dublin requires one business day for any subsequent reviews, if necessary. Approval occurs on a same-day basis.
What are the applicable fees payable?
Euronext Dublin will charge 1,000 per tranche of securities migrated to list in Ireland.
How must the Summary be made available to the public?
The Summary, which must be published in English or Irish, must be made available to the public in the manner specified in Regulation 45 of the Irish Prospectus Regulations. The issuer may abide by this requirement by making the Summary openly available in electronic form on the issuer's website.
Please note: The CBI does NOT publish Summary documents. The Euronext Dublin website can be used to publish such Summary.
What do you need to provide to Euronext Dublin to begin the migration of securities to the Regulated Market in Ireland?
1. A draft Summary, fulfilling the requirements outlined above. A list of historic issuances to be migrated to list in Ireland can be, subject to the above, included in an annex to the Summary.
2. A searchable pdf of the approved (base) prospectus, supplements (if applicable) and financial statements filed at the time of approval and the issuer's audit financial statements from the last two years.
3. If applicable, pdf versions of any final terms which have been issued, and which are intended to be migrated.