PART 5Amendments of retained European Union law
CHAPTER 1Amendments of the Prospectus Regulation
Amendments of the Prospectus RegulationI4031
The Prospectus Regulation is amended in accordance with this Chapter.
Subject matter, scope and exemptionsI132
1
Article 1 is amended as follows.
2
In paragraph 1, for “a Member State” substitute “
the United Kingdom
”
.
3
In paragraph 2—
a
for point (b) substitute—
b
non-equity securities issued by—
i
the government of any country or territory,
ii
a local or regional authority of any country or territory,
iii
a public international body of which any state is a member,
iv
the European Central Bank or the central bank of any state;
b
in point (c), for “the Member States” substitute “
any state
”
;
c
in point (d) for “a Member State or” to the end, substitute “
the government or a local or regional authority of any country or territory
”
;
d
in point (e), for “Member State” substitute “
state
”
.
4
In paragraph 4—
a
in point (b), for “per Member State” substitute “
in the United Kingdom
”
;
F7aa
in point (f), before “securities”, insert “
subject to paragraph 6a,
”
;
ab
in paragraph (g), before “securities”, insert “
subject to paragraph 6b,
”
;
b
in point (j), for “Union” substitute “
United Kingdom
”
.
F85
In paragraph 5, in the first subparagraph—
a
in point (e), before “securities”, insert “
subject to paragraph 6a,
”
;
b
in point (f), before “securities”, insert “
subject to paragraph 6b,
”
;
c
in point (j)(v), omit the words “in the Member State of the regulated market where admission to trading is sought” and the words “of the Member State of the regulated market where admission is sought”.
F65A
In paragraph 6a, for point (b) substitute—
b
the FCA has issued a prior approval, under paragraph 6c of this Article, for the documents referred to in point (f) of paragraph 4 or point (e) of paragraph 5 of this Article.
5B
After paragraph 6b, insert—
6c
The FCA may issue prior approval for the documents referred to in point (f) of paragraph 4 or point (e) of paragraph 5 of this Article.
6
For paragraph 7 substitute—
7
The Treasury may by regulations specify the minimum information content of the documents referred to in points (f) and (g) of paragraph 4 and points (e) and (f) of the first subparagraph of paragraph 5 of this Article.
DefinitionsI233
In Article 2—
a
before point (a), insert—
za
‘FCA’ means the Financial Conduct Authority;
zb
‘FSMA’ means the Financial Services and Markets Act 2000 M1;
zc
‘markets in financial instruments regulation’ means Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 M2;
zd
references to a ‘third country’ (including in expressions including the words ‘third country’) are to be read as references to a country other than the United Kingdom;
ze
any reference in this Regulation to a sourcebook is to a sourcebook in the Handbook of Rules and Guidance published by the FCA containing rules made by the FCA under FSMA, as the sourcebook has effect on F1IP completion day;
zf
a reference to the UK law which implemented a Directive, or a provision thereof, is to the law of the United Kingdom which was relied on by the United Kingdom immediately before F1IP completion day to implement that Directive and its implementing measures—
i
as they have effect on F1IP completion day, in the case of rules made by the FCA under FSMA, and
ii
as amended from time to time, in all other cases.
b
for point (a) substitute—
a
‘securities’ means transferable securities as defined in Article 2(1)(24) of the markets in financial instruments regulation, other than money market instruments as defined in Article 2(1)(25A) of that regulation that have a maturity of less than 12 months;
c
for point (e) substitute—
e
‘qualified investor’, in relation to an offer of transferable securities, means—
i
a person described in paragraph 3 of Schedule 1 to the markets in financial instruments regulation, other than a person who, before the making of the offer, has agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with paragraph 4 of that Schedule;
ii
a person who has made a request to one or more relevant firms to be treated as a professional client in accordance with paragraphs 5 and 6 of that Schedule and has not subsequently, but before the making of the offer, agreed in writing with that relevant firm (or each of those relevant firms) to be treated as a non-professional client in accordance with paragraph 4 of that Schedule;
iii
a person who—
aa
is an eligible counterparty for the purposes of Section 6 of Chapter 3 of the Conduct of Business sourcebook, and
bb
has not, before the making of the offer, agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with paragraph 4 of Schedule 1 to the markets in financial instruments regulation; or
iv
a person whom—
aa
any relevant firm was authorised to continue to treat as a professional client immediately before 3 January 2018 by virtue of Article 71.6 (transitional provisions) of Directive 2004/39/EC on markets in financial instruments; and
bb
the firm was entitled immediately before F2IP completion day to continue to treat as a professional client by virtue of Section II.2 of Annex II to the markets in financial instruments directive,
and for the purposes of this definition, ‘relevant firm” means an investment firm (within the meaning of section 424A of FSMA) or qualifying credit institution (within the meaning in section 417 of FSMA) acting in connection with the offer;
d
for point (g) substitute—
g
‘credit institution’ has the meaning given in Article 2(1)(19) of the markets in financial instruments regulation;
e
in point (j), for “point (21) of Article 4(1) of Directive 2014/65 EU” substitute “
Article 2(1)(13) of the markets in financial instruments regulation
”
M6
;
f
for point (l) substitute—
l
‘regulated information’ means all information which an issuer, or any other person who has applied for the admission of securities to trading on a regulated market without the issuer's consent, is required to disclose under—
i
qualifying transparency legislation;
ii
Articles 17 to 19 of 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/ECM7;
iii
listing rules,
and for the purposes of this definition, ‘listing rules’ and ‘qualifying transparency legislation’ have the same meaning as in Part 6 of FSMA;
g
omit points (m) and (n);
h
in point (o), for the words from “authority” to the end substitute “
FCA
”
;
i
in point (r), omit “home Member State's”;
j
for point (t), substitute—
t
‘working day’ has the same meaning as in section 103 of FSMA;
k
for paragraph (u), substitute—
u
‘multilateral trading facility’ or ‘MTF’ means a UK multilateral trading facility as defined by Article 2(1)(14A) of the markets in financial instruments regulation;
l
for point (v), substitute—
v
‘organised trading facility’ or ‘OTF’ means a UK organised trading facility as defined by Article 2(1)(15A) of the markets in financial instruments regulation;
m
for point (w) substitute—
w
‘SME growth market’ means a multilateral trading facility that is registered as an SME growth market in accordance with Section 10 of Part 5 of the Market Conduct sourcebook;
Obligation to publish a prospectus and exemptionsI334
In Article 3—
a
in paragraphs 1 and 3, for “Union” substitute “
United Kingdom
”
;
b
omit paragraph 2.
Voluntary prospectusI435
In Article 4(2), omit the words from “of the home” to “Article 2,”.
The prospectus summaryI536
In Article 7—
a
in paragraph 5, in the second subparagraph, omit point (d);
b
in paragraph 7—
i
in the first subparagraph, in point (a)(iv), before “Directive 2014/59/EU” insert “
the UK law which implemented
”
;
ii
in the second subparagraph, omit the second sentence;
c
omit paragraph 12;
d
in paragraph 13—
i
in the first subparagraph, for “ESMA shall develop draft regulatory” substitute “
The FCA may make
”
;
ii
omit the second and third subparagraphs.
The base prospectusI637
In Article 8, in paragraph 5, omit “of the home Member State”.
The universal registration documentI738
In Article 9—
a
in paragraph 2—
i
in the first subparagraph, omit “of its home Member State”;
ii
omit the fifth subparagraph;
b
in paragraph 3—
i
for “a competent”, substitute “
the competent
”
;
ii
at the end, insert “
This paragraph does not apply in relation to a registration document forming part of a prospectus deemed to be approved by the competent authority in accordance with regulation 73 of the Official Listing of Securities, Prospectus and Transparency (Amendment etc.) (EU Exit) Regulations 2019.
”
M11
;
c
omit paragraph 5;
d
in paragraph 11, before “Directive 2004/109/EC” insert “
the UK law which implemented
”
;
e
in paragraph 12—
i
in the first subparagraph, for “Article 4 of Directive 2004/109/EC” substitute “
Section 1 of Chapter 4 of the Disclosure Guidance and Transparency Rules Sourcebook
”
;
ii
in the second subparagraph, for “Article 5 of Directive 2004/109/EC” substitute “
Section 2 of Chapter 4 of the Disclosure Guidance and Transparency Rules Sourcebook
”
;
f
omit paragraph 13;
g
for paragraph 14, substitute—
14
The Treasury may make regulations to supplement this Regulation by specifying the criteria for the scrutiny and review of the universal registration document and any amendments thereto, and the procedures for the approval and filing of those documents as well as the conditions under which the status of frequent issuer is lost.
Prospectuses consisting of separate documentsI839
In Article 10, in paragraph 1, in the first subparagraph, for “a competent” insert “
the competent
”
.
Responsibility attaching to the prospectusI940
Omit Article 11.
Minimum information and formatI1041
In Article 13—
a
in paragraph 1—
i
in the first subparagraph, for “The Commission shall adopt delegated acts in accordance with Article 44 to” substitute “
The Treasury may by regulations
”
;
ii
in the third subparagraph, for “Commission” substitute “
Treasury
”
;
b
in paragraph 2, in the first subparagraph, for “The Commission shall, by 21 January 2019, adopt delegated acts in accordance with Article 44 to” substitute “
The Treasury may by regulations
”
;
c
in paragraph 3, for “The delegated acts” substitute “
Regulations
”
.
Simplified disclosure regime for secondary issuersI1142
In Article 14—
F9a
for paragraph 2 substitute—
2
By way of derogation from Article 6(1), and without prejudice to Article 18(1), the simplified prospectus shall contain the relevant reduced information which is necessary to enable investors to understand—
a
the prospects of the issuer and the significant changes in the business and the financial position of the issuer and the guarantor that have occurred since the end of the last financial year, if any;
b
the rights attaching to the securities;
c
the reasons for the issuance and its impact on the issuer, including on its overall capital structure, and the use of the proceeds.
The information contained in the simplified prospectus shall be written and presented in an easily analysable, concise and comprehensible form and shall enable investors to make an informed investment decision. It shall also take into account the regulated information that has already been disclosed to the public pursuant to—
a
provisions of the law of the United Kingdom relied on at the time of the disclosure in question to implement Directive 2004/109/EC, where applicable, in relation to disclosures made before IP completion day,
b
the UK law which implemented Directive 2004/109/EC, where applicable, in relation to disclosures after IP completion day, and
c
Regulation (EU) No 596/2014.
Those issuers referred to in point (d) of the first subparagraph of paragraph 1 of this Article that are or are not required to prepare consolidated accounts in line with section 399 of the Companies Act 2006F10 after their securities' admission to trading on a regulated market shall compile the most recent financial information pursuant to point (a) of the second subparagraph of paragraph 3 of this Article, containing comparative information for the previous year included in the simplified prospectus, in accordance with Article 23a of Regulation (EU) 2019/980F11.
Third country issuers whose securities have been admitted to trading on an SME growth market shall compile the most recent financial information pursuant to point (a) of the second subparagraph of paragraph 3 of this Article, containing comparative information for the previous year included in the simplified prospectus in accordance with Article 23a of Regulation (EU) 2019/980.
b
in paragraph 3—
i
in the first subparagraph, for “The Commission shall, by 21 January 2019, adopt delegated acts in accordance with Article 44 to” substitute “
The Treasury may by regulations
”
;
ii
in the third subparagraph—
aa
for “Commission” in each place it occurs, substitute “
Treasury
”
;
bb
for “Directive 2004/109/EC, where applicable, and Regulation (EU) No 596/2014” substitute “
the provisions referred to in the second sentence of paragraph 2 of this Article
”
.
EU Growth prospectusI1243
In Article 15—
a
for the heading, substitute “
UK Growth prospectus
”
b
in paragraph 1—
i
in the first subparagraph—
aa
in the opening words, for “an EU” substitute “
a UK
”
;
bb
in point (c) for “Union” substitute “
United Kingdom
”
;
ii
in the second subparagraph—
aa
for “An EU” substitute “
A UK
”
;
bb
for “the EU” substitute “
the UK
”
;
cc
for “delegated act” substitute “
regulations
”
.
c
in paragraph 2—
i
for the first subparagraph, substitute—
The Treasury may by regulations supplement this Regulation by specifying the reduced content and the standardised format and sequence for the UK Growth prospectus, as well as the reduced content and the standardised format of the specific summary.
ii
in the second, third and fourth subparagraphs—
aa
for “Commission” substitute “
Treasury
”
;
bb
for “the EU” substitute “
the UK
”
;
iii
in the fifth subparagraph, for “delegated acts” substitute “
regulations
”
.
Risk factorsI1344
In Article 16—
a
in paragraph 2, before “Directive 2014/59/EU” insert “
the UK law which implemented
”
;
b
omit paragraph 4;
c
in paragraph 5, for “The Commission is empowered to adopt delegated acts in accordance with Article 44 to” substitute “
The Treasury may by regulations
”
.
Final offer price and amount of securitiesI1445
In Article 17, in paragraph 2, omit “of the home Member State”.
Omission of informationI1546
In Article 18—
a
in paragraph 1—
i
in the first subparagraph, omit “of the home Member State”;
ii
omit the second subparagraph;
b
in paragraph 3, for “Member State”, both times it occurs, substitute “
state
”
;
c
for paragraph 4, substitute—
4
The FCA may make technical standards to specify the cases where information may be omitted in accordance with paragraph 1.
Incorporation by referenceI1647
In Article 19—
a
in paragraph 1, in the first subparagraph —
i
in the opening words, after “Article 27” insert “
as it had effect immediately before exit day where the information was published before F3IP completion day,
”
;
ii
for point (a) substitute—
a
a document which has—
i
before F4IP completion day, been approved by or filed with a competent authority (as defined in this Regulation as it had effect immediately before exit day) in accordance with this Regulation (as it had effect immediately before exit day), or a competent authority (as defined in Directive 2003/71/EC) in accordance with that Directive; or
ii
on or after F4IP completion day, been approved by or filed with the competent authority in accordance with this Regulation or the UK law implementing Directive 2003/71/EC;
iii
for point (j), substitute—
j
annual reports or any disclosure of information required under—
— provisions of the law of the United Kingdom relied on at the time of the disclosure in question to implement Articles 22 and 23 of Directive 2011/61/EU, in relation to disclosures made before F5IP completion day,
— the UK law which implemented Articles 22 and 23 of Directive 2011/61/EC, in relation to disclosures after F5IP completion day.
b
in paragraph 4—
i
in the first subparagraph—
aa
for “ESMA may, or where the Commission so requests shall, develop draft regulatory” substitute “
The FCA may make
”
;
bb
for “Union law” substitute “
the law of the United Kingdom
”
.
ii
omit the second subparagraph.
Scrutiny and approval of the prospectusI1748
In Article 20—
a
in paragraph 1, omit “relevant”;
b
in paragraph 2, omit the third subparagraph;
c
in paragraph 6, omit “, including frequent issuers using the notification procedure provided for in Article 26”;
d
in paragraph 7, for “Competent authorities shall provide on their websites” substitute “
The competent authority must provide on its website
”
;
e
omit paragraphs 8 and 9;
f
in paragraph 10, omit “of the home Member State”;
g
in paragraph 11, for “The Commission shall, by 21 January 2019, adopt delegated acts in accordance with Article 44 to”, substitute “
The Treasury may by regulations
”
;
h
omit paragraphs 12 and 13.
Publication of the prospectusI1849
In Article 21—
a
in paragraph 5—
i
in the first subparagraph omit “of the home Member State” and the words from “as well as” to the end of that sentence;
ii
omit the second and third subparagraphs;
b
omit paragraph 6;
c
in paragraph 7, for “paragraphs 2 and 6” substitute “
paragraph 2
”
;
d
in paragraph 10, omit “of the home Member State”;
e
in paragraph 11, in the third sentence, omit “or where the admission” to the end;
f
in paragraph 12—
i
in the first subparagraph, for “ESMA may, or where the Commission so requests shall, develop draft regulatory” substitute “
The FCA may make
”
;
ii
omit the second subparagraph;
g
in paragraph 13—
i
in the first subparagraph, for “ESMA shall develop draft regulatory” substitute “
The FCA may make
”
;
ii
omit the second and third subparagraphs.
AdvertisementsI1950
In Article 22—
a
in paragraph 6—
i
in the first subparagraph, omit “of the Member State where the advertisements are disseminated”;
ii
omit the second subparagraph;
iii
in the third subparagraph—
aa
for “a competent” substitute “
the competent
”
;
bb
for “any host Member State” substitute “
the United Kingdom
”
;
iv
omit the fourth subparagraph;
b
omit paragraphs 7 and 8;
c
for paragraph 9 substitute—
9
The FCA may make technical standards to specify further the provisions concerning advertisements laid down in paragraphs 2 to 4, including to specify the provisions concerning the dissemination of advertisements.
d
omit paragraph 10;
e
in paragraph 11, for “Union law” substitute “
the law of the United Kingdom
”
.
Supplements to the prospectusI2051
In Article 23—
a
in paragraph 1, in the second subparagraph, omit “, and any translations thereof,”;
b
in paragraph 7—
i
in the first subparagraph, for “ESMA shall develop draft regulatory” substitute “
The FCA may make
”
;
ii
omit the second and third subparagraphs.
Omission of Articles 24 to 27I2152
Omit Articles 24 to 27.
Third country issuers - prospectus drawn up in accordance with Regulation (EU) 2017/1129I2253
In Article 28—
a
in the first subparagraph—
i
for “Union”, in both places it occurs, substitute “
United Kingdom
”
;
ii
omit “of its home Member State”;
b
in the second subparagraph, omit “of the home Member State”.
Third country issuers - prospectus drawn up in accordance with laws of a third countryI2354
In Article 29—
a
in paragraph 1—
i
in the opening words, omit “of the home Member state of a third country issuer”;
ii
in point (b), omit “of the home Member State”;
b
omit paragraph 2;
c
in paragraph 3—
i
in the first subparagraph, for “The Commission is empowered to adopt delegated acts in accordance with Article 44 to” substitute “
The Treasury may by regulations
”
;
ii
in the second subparagraph—
aa
for “the Commission may adopt an implementing decision stating” substitute “
the Treasury may by regulations state
”
;
bb
omit the last sentence.
Cooperation with third countriesI2455
In Article 30—
a
for paragraph 1, substitute—
1
For the purpose of Article 29 and, where deemed necessary, for the purpose of Article 28, the competent authority shall conclude cooperation arrangements with supervisory authorities of third countries concerning the exchange of information with supervisory authorities in third countries and the enforcement of obligations arising under this Regulation in third countries unless that third country is a high-risk third country within the meaning of regulation 33 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017. Those cooperation arrangements shall at least ensure an efficient exchange of information that allows the competent authority to carry out its duties under this Regulation.
b
omit paragraph 2;
c
in paragraph 3—
i
for “The competent authorities” substitute “
The competent authority
”
;
ii
for “those competent authorities” substitute “
the competent authority
”
;
d
in paragraph 4—
i
in the first subparagraph, for “ESMA may, or where the Commission so requests shall, develop draft regulatory” substitute “
The FCA may make
”
;
ii
omit the second subparagraph.
Amendment of heading of Chapter 7I2556
For the heading of Chapter 7, substitute “
The competent authority
”
.
Omission of Article 31I2657
Omit Article 31.
Powers of competent authoritiesI2758
In Article 32—
a
in the heading, for “competent authorities” substitute “
the competent authority
”
;
b
omit paragraphs 1 to 3;
c
in paragraph 4—
i
for “laws and regulations” substitute “
the law of the United Kingdom
”
;
ii
for “that transpose” substitute “
which implemented
”
;
d
omit paragraph 6.
Omission of Articles 33 and 34I2859
Omit Articles 33 and 34.
Professional secrecyI2960
In Article 35—
a
in paragraph 1—
i
for “competent authorities” substitute “
competent authority, the Treasury and any other authority (including a third country authority), or received by the competent authority, the Treasury or any other authority (including a third country authority) from another authority
”
ii
for “competent authority” substitute “
authority from which the information is received
”
;
b
in paragraph 2, for “Union or national law” substitute “
the law of the United Kingdom or any part of the United Kingdom
”
.
Data protectionI3061
In Article 36—
a
in the first paragraph—
i
for “competent authorities shall carry out their” substitute “
the competent authority shall carry out its
”
;
ii
at the end insert “
and the Data Protection Act 2018
”
M13
;
b
omit the second subparagraph.
Omission of Articles 37 to 41I3162
Omit Articles 37 to 41.
Publication of decisionsI3263
In Article 42—
a
omit paragraphs 1 to 3;
b
in paragraph 4, for the first sentence substitute “
The competent authority shall ensure that any information about an infringement of this Regulation which the authority publishes under section 391(4) of FSMA is published on its website (whether or not also published in any other way) and then remains on that website for a period of at least five years after its publication.
”
M14
.
Omission of Article 43I3364
Omit Article 43.
Amendment of heading of Chapter 9I3465
For the heading of Chapter 9, substitute “
Treasury regulations
”
.
Omission of Articles 44 and 45 and insertion of Article 45aI3566
1
Omit Articles 44 and 45.
2
Before Chapter 10, insert—
Article 45aTreasury regulations
1
Any power to make regulations conferred on the Treasury by this Regulation is exercisable by statutory instrument.
2
Such regulations may—
a
contain incidental, supplemental, consequential, transitional and saving provision; and
b
make different provision for different purposes.
3
A statutory instrument containing regulations under this Regulation is subject to annulment in pursuance of a resolution of either House of Parliament.
Omission of Articles 47 and 48I3667
Omit Articles 47 and 48.
Entry into force etc.I3768
In Article 49, omit paragraph 3.
Final provisionsI3869
Omit the words “This Regulation shall be binding in its entirety and directly applicable in all Member States.” following Article 49.
AnnexesI3970
1
The Annexes are amended as follows.
2
In Annex 3, point 4 C, before “Directive” insert “
the UK law which implemented
”
.
3
In Annex 4—
a
in the heading, for “EU Growth” substitute “
UK Growth
”
;
b
in point 5—
i
for “Articles 19 and 29 of Directive 2013/34/EU” substitute “
rules 4.1.8 and 4.1.11 of the Disclosure Guidance and Transparency Rules Sourcebook
”
;
ii
for “EU Growth” substitute “
UK Growth
”
.
4
In Annex 5, in the heading for “EU Growth” substitute “
UK Growth
”
.