Reaction Paper to Commission Delegated Regulation (Eu) No 486/2012 of 30.3.2012 Amending Regulation (Ec) No 809/2004

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Tomáš Vakrman 30. 11. 2012, Praha By July 2012, European Economic Area Member States were required to implement new rules regarding prospectus regime. The changes were introduced in the Commission Delegated Regulation (EU) No 486/2012 of 30.3.2012 amending Regulation (EC) No 809/2004. The document presented rather evolutionary than revolutionary changes, however, some parts will have a significant impact in practice. The Amending Directive applies to majority of the issues with few exceptions:   securities offerings with total consideration below EUR 5m (increased from 2.5m) offers where the securities are non-equity securities issued in continuous or repeated manner by credit institutions where the total consideration is less than EUR 75m (increased from EUR 50m)

Nevertheless, the main focus should be on the cases where the directive applies. There are several fields where the Amending Directive is trying to tackle the shortfalls of the original document. Namely we can categorize the changes into 3 categories. Firstly, it changes the rules of when it is obligatory to publish a Prospectus. Secondly, it brings out new rules regarding form and content of a Prospectus. Finally, there are other aspects of the regulation that does not fall into any of previously mentioned categories. Except of the previously mentioned examples for which the Prospectus Directive is not valid, there are several exemptions from the Directive presented in the amendments. Arguably, the most important exemption applies on the issues addressed solely to qualified investors, where the definition of qualified investor was amended to match the MiFID definitions. Such harmonization is a welcomed modification since it would allow the investment firms to use existing list of investors. The exemption from writing the prospectus also applies on offerings to restricted number of investors(less than 150 investors, other than qualified, per member state); the small offers where the total...
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