[Newsflash n. 64]

On 20 June 2019 Consob submitted to public consultation  certain  amendments to the relevant secondary Consob Regulation n. 11971/1999 (also “Issuers’ Regulation”) as required to implement the Prospectus Regulation (Regulation (EU) 2017/1129).

Prospectus Regulation (“PR”)

As of 21 July 2019, the Prospectus Regulation (repealing the Prospectus Directive 2003/71/EC) will become applicable in its entirety.
As at today, the following provisions have been already applicable: Article 1(5) subparagraph 1 (a, b, c) regarding some exemptions from the obligation to publish a prospectus for securities fungible with securities already admitted to trading or securities or shares resulting from the conversion or exchange of other securities (applicable from 20 July 2017) and Articles 1(3) and 3(2) regarding exemptions from the obligation to publish a prospectus for offers not exceeding a specific monetary amount (applicable from 21 July 2018). In accordance with such provisions Consob amended its Issuers’ Regulation through Resolution n.20250/2017  and Resolution n.20686/2018 (see our Newsflash n.55).

Meanwhile, on 21 June 2019 two delegated acts have been also published on the EU Official Journal:

  • Commission Delegated Regulation (EU) 2019/979 with regard to regulatory technical standards on key financial information in the summary of a prospectus, the publication and classification of prospectuses, advertisements for securities, supplements to a prospectus, and the notification portal, and
  • Commission Delegated Regulation (EU) 2019/980 as regards the format, content, scrutiny and approval of the prospectus repealing Regulation (EC) No 809/2004.

The Prospectus Regulation aims at facilitating the access to different forms of finance in the EU by simplifying and streamlining the rules and procedures to issue and offer securities to the public. To this end, some of the key provisions of the PR can be summarized as follows:

  • the obligation to publish a prospectus does not apply for capital raising or crowdfunding projects below EUR 1 million (previously the limit was EUR 100,000) (Articles 1(3));
  • the possibility for EU Member States (also “MS”) to exempt offers of securities to the public below EUR 8 million (exemption that has already been adopted in Italy)(Article 3(2)(b));
  • the faculty for the issuer, offeror or person, asking for admission to trading to substitute the summary of the prospectus with the information set out in PRIIPs’ KID and the possibility for each home Member State to require such substitution (Consob position is not to require such substitution) (Article 7(7));
  • the possibility for entities frequently issuing securities to obtain a Universal Registration Document to secure fast-track approval within 5 days (Article 9); and
  • the establishment of two standardized and simplified prospectus: simplified disclosure regime for secondary issuances (Article 14) and EU growth prospectus (Article 15).

Italian regime

While the Prospectus Regulation is almost entirely directly applicable in the national legal system of the EU Member States, some provisions need to be implemented by each MS.
In Italy, the criteria for such implementation – affecting the Italian Financial Act (also “TUF”) and the Issuers’ Regulation – are envisaged by Draft Law n. 944/2018 (“LDE 2018”), currently under examination.
The amendments to TUF will mainly concern the repealing of conflicting provisions with the PR, the provision of additional supervisory powers and the fine tuning of the sanctioning system with the specific regime set forth in Chapter VIII of the Prospectus Regulation.

In advance to the final approval of the LDE, thorough this Consultation, Consob has now started the process to make the necessary amendments to the Issuers’ Regulation to adequately implement the PR. In short, the changes will concern, inter alia, the following provisions of Consob Issuers’ Regulation:

  • repealing incompatible provisions with the PR;
  • simplification of the requirements and the content of the application to be filed for approval of a prospectus (Article 4);
  • reduction of the timeframe of Consob’s vetting on prospectuses (Article 8.5);
  • fine tuning of the exemption regime the obligation to publish a prospectus (Article 34-ter);
  • introduction of the Universal Registration Document (Article 81.1 as well as the relevant Annexes);
  • provision in Section II of the admission and trading on regulated markets of closed-end funds; and
  • amendments concerning the exemption regime for mergers, demergers, and public exchange offers, including the introduction of a document substituting the prospectus.

Responses to the Consultation can be submitted until 10 July 2019. Please feel free to contact us should you wish our assistance to prepare and submit your comment to the Consultation.

Contacts:

Vito Vittore
Partner

Elena Pagnoni
Partner

Roberta Talone
Associate