On 15 July 2020, ESMA published its final report on guidelines on disclosure requirements (the “Guidelines”) under Regulation (EU) 2017/1129 of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “Prospectus Regulation”).
Purpose and scope
The Guidelines (which update and replace the recommendations of CESR, ESMA’s predecessor (the “CESR Recommendations”)) are intended to provide guidance on the various disclosure requirements pursuant to the Prospectus Regulation and related legislation, in particular Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 supplementing the Prospectus Regulation.
Content and key changes
The content of the Guidelines generally carries over the content of the CESR Recommendations, but in a limited number of cases, ESMA included new Guidelines as well as added some new content in the explanatory text. In particular, changes were introduced in Guidelines 11 and 13 relating to profit forecasts, Guideline 18 relating to pro forma financial information, Guidelines 33, 36 and 37 relating to working capital statements and Guidelines 38 and 39 relating to capitalisation and indebtedness statements. The content of some Q&As from ESMA’s Question and Answers on prospectuses were (in some cases only partially) also carried over to the Guidelines.
A couple of sections of the CESR recommendations were not carried over. In particular, the CESR recommendations relating to selected financial information (paragraphs 20-26) were not converted into the Guidelines, because selected financial information is not required under the Prospectus Regulation.
The Guidelines will become effective two months after their publication on ESMA’s website in all the official languages. From that time and unlike the CESR Recommendations, the comply or explain principle will apply to the Guidelines.