On 26 January 2011, the European Securities and Markets Authority (“ESMA”) issued a request for interested parties to submit views on aspects or areas that it should consider in its advice to the European Commission on possible delegated acts concerning the Prospectus Directive (2003/71/EC) (as amended by Directive 2010/73). ESMA has been asked to deliver certain parts of the requested advice by 30 September 2011. To enable it to fulfil the request for advice, ESMA has set up a Prospectus Level 2 Task Force. The advice requested by the European Commission included in relation to the following matters:
- the format of final terms to a base prospectus;
- the format of the summary and content and format requirements of the key information to be included in the summary of a prospectus;
- the proportionate disclosure regime in relation to certain rights issue prospectuses and prospectuses in relation to issues by SMEs, companies with reduced market capitalisation and certain issues of non-equity securities by credit institutions;
- the criteria for assessing equivalence of the regulatory framework of third country markets in connection with the extended employee offer exemption from the requirement for a prospectus; and
- the consent requirements in connection with the use of a prospectus in a retail cascade.
The Commission had also asked ESMA to consider certain amendments to the disclosure requirements in the Prospectus Regulation, including in relation to:
- the information on taxes on income from securities withheld at source;
- the requirement for an independent report for a profit forecast or estimate; and
- the period covered by the audited financial information.
Responses to this initial call for evidence should be received by 25 February 2011 (ESMA intends to publish a consultation paper in July 2011). Thereafter, the advice to the European Commission is expected to be signed off by ESMA in September 2011 and the Commission will then prepare the delegated acts from October to December 2011, with adoption of the delegated acts by the Commission expected in late December 2011. March and June 2012 will be the end of the objection period for the Parliament and Council and the transposition period for the implementing directive will end on 1 July 2012.