S.I. No. 202/1992 - European Communities (Transferable Securities and Stock Exchange) Regulations, 1992.

S.I. No. 202 of 1992.

EUROPEAN COMMUNITIES (TRANSFERABLE SECURITIES AND STOCK EXCHANGE) REGULATIONS, 1992.

I, DESMOND O'MALLEY, Minister for Industry and commerce, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to the provisions of Council Directive No. 89/298/EEC of 17 April, 1989⁽¹⁾ and Council Directive No. 90/211/EEC of 23 April, 1990⁽²⁾ hereby make the following Regulations:

PART I. Preliminary.

1 Citation, commencement and construction.

1. (1) These Regulations may be cited as the European Communities (Transferable Securities and Stock Exchange) Regulations, 1992.

(2) These Regulations shall come into operation on the 1st day of September, 192.

(3) These Regulations shall be construed as one with the Companies Acts, 1963 to 1990.

2 Interpretation.

2. (1) In these Regulations—

"the Listing Particulars Directive" means Council Directive No. 80/390/EEC of 17 March 1980,⁽³⁾ as amended by Council Directive No. 87/345/EEC of 22 June 1987⁽⁴⁾ and as further amended by Council Directive No. 90/211/EEC of 20 April 1990⁽²⁾;

"the 1984 Regulations" means the European Communities (Stock Exchange) Regulations, 1984 ( S.I. No. 282 of 1984 ), as amended by the 1991 Regulations;

⁽¹⁾O.J. No. L124, 5-5-1989 pp. 8-15.

⁽²⁾O.J. No. L112, 3.5.1990 pp. 24-25.

⁽³⁾O.J. No. L100, 17-4-1980 pp. 1-26.

⁽⁴⁾O.J. No. L185, 4-7-1987 pp. 81-83.

"the 1991 Regulations" means the European Communities (Stock Exchange) (Amendment) Regulations, 1991 ( S.I. No. 18 of 1991 );

"the directives" means

—Council Directive No. 89/298/EEC of 17 April, 1989,⁽¹⁾ and

—Council Directive No. 90/211/EEC of 23 April, 1990⁽²⁾

set out in the First Schedule and the Second Schedule to these Regulations, respectively;

"the Minister" means the Minister for Industry and Commerce;

"the Irish Stock Exchange" means the Committee of the Irish Unit of the International Stock Exchange of the United Kingdom and the Republic of Ireland Limited.

(2) Reference to ann Article or other provision of either of the directives shall be taken as a reference to that Article or that provision of that directive as set out in the First Schedule and Second Schedule to these Regulations, as appropriate.

(3) A word or expression that is used in these Regulations and is also used in either of the directives shall, unless the contrary intention appears, have in these Regulations the same meaning as it has in the directive in which it is used.

PART II. Application of the Prospectus Directive (No. 89/298/EEC).

3 Interpretation of Part II.

3. In this Part—

"the Prospectus Directive" means Council Directive No. 89/298/EEC of 17 April, 1989⁽¹⁾ set out in the First Schedule to these Regulations;

"securities" has the same meaning as "transferable securities" in Article 3 of the Prospectus Directive.

⁽¹⁾O.J. No. L124, 5-5-1989 pp. 8-15.

⁽²⁾O.J. No. L112, 3.5.1990 pp. 24-25.

4 Application of Prospectus Directive.

4. Subject to the provisions of this Part of these Regulations, the requirements of the Prospectus Directive shall have effect and be applied accordingly.

5 Optional powers conferred on Member States by Prospectus Directive.

5. The Third Schedule to these Regulations shall have effect for the purpose of determining the manner in which the provisions of the Prospectus Directive shall apply for the purposes of these Regulations.

6 Duty to publish a Prospectus where securities are offered to the public.

6. Subject to Regulation 21 of these Regulations, it shall not be lawful to issue any form of application for the securities of a company unless the form is issued with a prospectus which complies with the requirements of this Part and the issue of which does not contravene section 46 of the Companies Act, 1963 .

7 ..

7. The obligation in Regulation 6 shall not apply to,

( a ) the types of offer and types of securities described in Article 2 of the Prospectus Directive;

( b ) securities referred to in Article 5 of the Prospectus Directive.

8 Content of the prospectus.

8. (1) Every prospectus issued by or on behalf of an issuer shall contain the information which, according to the particular nature of the issuer and of the securities concerned, is necessary to enable an informed assessment to be made of the assets and liabilities, financial position, profits and losses and prospects of the company and of the rights attaching to the securities.

(2) Without prejudice to the generality of paragraph (1), a prospectus stating at least the matters specified,

( a ) in Article 11.2 to 11.6 of the Prospectus Directive but subject to the permissible exemptions provided in the said Directive or by these Regulations, and

( b ) so far as not already required therein, but subject to paragraphs (3) and (4), by the Third Schedule to the Companies Act, 1963 ,

shall be regarded as complying with paragraph (1).

(3) The application of the Third Schedule of the Companies Act, 1963 to a prospectus issued under these Regulations shall be modified by the substitution, in paragraphs 6, 8, 11, 13, 14, 19, 20 and 21 of the said Schedule, in each place where they occur, of "3 years" for "5 years" and "3 financial years" for "5 financial years".

(4) Where, having regard to the proposals as to the size and other circumstances of the issue of securities, compliance under paragraph (2) (b) with the requirements of the Third Schedule to the Companies Act, 1963 would be unduly burdensome, the Irish Stock Exchange may allow some of the information specified in the said Schedule to be omitted from the prospectus.

9 Designation of body.

9. (1) The Irish Stock Exchange is hereby designated for the purposes of Articles 11.7, 11.8, 13.1 and 13.2 of the Prospectus Directive as the body which may authorise the omission or exemption of the information specified in the respective Articles in the circumstances provided. The Irish Stock Exchange is also designated for the purposes of Article 19 of the Prospectus Directive.

(2) Regulations 7, 8 and 9 of the 1984 Regulations shall apply to the Irish Stock Exchange in the discharge of its responsibilities under paragraph (1).

10 Liability of issuer.

10. (1) In the event of noncompliance with or contravention of the obligation referred to in Article 4 of the Prospectus Directive, the person making the offer shall not incur any liability by reason of the non-compliance or contravention if—

( a ) in relation to any matter not disclosed, he proves that he did not know it; or

( b ) he proves that the noncompliance or contravention arose from an honest mistake of fact on his part; or

( c ) the noncompliance or contravention was in respect of matters which, in the opinion of the Court dealing with the case, were immaterial or were otherwise such as ought, in the opinion of the Court, having regard to all the circumstances of the case, reasonably to be excused.

(2) Nothing in this Regulation shall be construed so as to limit or diminish any liability which any person may incur under the law of the State apart from these Regulations.

(3) An issuer shall not be liable in damages by reason only of noncompliance with, or contravention of, the provisions of these Regulations (other than paragraph (1) of this Regulation) provided that any such non compliance or contravention does not give rise to any liability under any provision of the Companies Act, 1963 .

11 Registration of prospectus.

11. Every prospectus issued under these Regulations shall be registered with the registrar of companies in compliance with section 47 of the Companies Act, 1963 .

12 Publication of prospectus.

12. Prospectuses issued under these Regulations, for which admission to official Stock Exchange listing is not sought, must be made available to the public:

( a ) by notice in one or more national daily newspapers circulating in the State, and

( b ) in the form of a prochure to be made available, free of charge, to the public at the registered office of the issuer and at the offices of the financial organisation retained to act as the issuers paying agent.

13 Time of publication.

13. Prospectuses issued under these Regulations must be published or made available to the public, not later than the time the offer is made to the public.

14 Designation of body.

14. The registrar of companies is hereby designated for the purposes of Articles 14 and 19 of the Prospectus Directive and shall have all the powers required to be conferred on, or which the State is permitted to confer on, the competent authority by the directive.

15 Liability of designated body.

15. (1) The registrar of companies shall not be liable in damages by reason only of noncompliance with, or contravention of, any obligation imposed by or by virtue of these Regulations, nor shall he be so liable in respect of anything done or omitted to be done by him in connection with the exercise by him of his functions as designated body, unless the act or omission complained of was done or omitted to be done in bad faith.

(2) No transaction shall be void or voidable by reason only of the fact that it was entered into in contravention of, or not in conformity with, these Regulations.

16 Office of designated body.

16. (1) The Companies REgistration Office, being the office maintained for the purposes of the registration of companies under the Companies Acts, 1963 to 1990, is hereby designated as the office of the registrar of companies.

(2) Any document may be served on the registrar of companies by leaving it at, or sending it by post to, the office maintained pursuant to paragraph (1) of this Regulation.

17 Annual Report of designated body.

17. (1) The registrar of companies shall report annually to the Minister on the exercise of his functions as the designated body in the State under the Prospectus Directive and under these Regulations.

(2) The Irish Stock Exchange shall include in its annual report required under Regulation 11 of the 1984 Regulations a report on the exercise of its functions as the designated body in the State under the Prospectus Directive and under these Regulations.

18 Co-operation with authorities outside the State.

18. The registrar of companies and the Irish Stock Exchange shall, within the framework of their respective responsibilities under these Regulations, comply with Article 19 of the Prospectus Directive.

19 Scrutiny of prospectuses.

19. It is hereby declared, for the avoidance of doubt, that the Irish Stock Exchange, which is designated as the competent authority by Regulation 7 of the 1984 Regulations for, inter alia, the Listing Particulars Directive, shall be the competent authority for the purposes of the application of Articles 7, 10 and 12 of the Prospectus Directive.

20 Offences.

20. (1) The restrictions referred to in Article 23 of the Prospectus Directive shall apply to all persons employed, or formerly employed, by the Irish Stock Exchange in the exercise of its functions as competent authority.

(2) Any person who fails to comply with the provisions of paragraph (1) of this Regulation or who knowingly publishes any information required to be published by the Directives which is false or misleading in any material respect shall be guilty of an offence and shall be liable on summary conviction to imprisonment for a term not exceeding 12 months or to a fine not exceeding £1,000 or to both.

(3) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent or connivance of or to be attributable to any neglect on the part of a director, manager, secretary or other officer of that body, the director, manager, secretary, other officer or any person purporting to act in such a capacity shall be guilty of an offence.

(4) Proceedings in relation to an offence under these Regulations may be brought and prosecuted by the Minister.

21 Non application of certain provisions of the Companies Act, 1963 .

21. (1) Where the relevant documents have been registered with the registrar of companies in accordance with Articles 14 and 21 of the Prospectus Directive, the provisions of these Regulations shall apply.

(2) Where application has been made to the Irish Stock Exchange for admission to listing and the relevant listing particulars have been approved by the Irish Stock Exchange in accordance with Article 7 of the Prospectus Directive, the provisions of this Regulation shall also apply.

(3) Notwithstanding the provisions of section 44 (3) or 361 (4) of the Companies Act, 1963 , a form of application for securities to which the Prospectus Directive applies need not have attached to it a prospectus in the form required by that Act if the form of application is issued with a document which sets out the details required by these Regulations or indicates where such particulars can be obtained or inspected.

(4) Where an offer for a subscription or purchase of securities to which the Prospectus Directive applies is made in the manner referred to in paragraph (3) of this Regulation, the details registered with the registrar of companies or the listing particulars approved by the Irish Stock Exchange, as appropriate, shall be deemed to be a prospectus within the meaning of the Companies Act, 1963 , and in any such case the provisions of sections 43, 44 (1), 45, 361 (1) (b), 361 (2), 362 and 364 of that Act shall not apply.

PART III. Application of Directive 90/211/EEC.⁽²⁾

22 Interpretation of Part III.

22. In this Part—

"the 1990 Directive" means Council Directive No. 90/211/EEC of 23 April 1990⁽²⁾ set out in the Second Schedule to these Regulations;

⁽²⁾O.J. No. L112, 3.5.1990 pp. 24-25.

"the 1987 Directive" means Council Directive No. 87/345/EEC of 22 June 1987⁽⁴⁾.

23 Amendment of the 1984 Regulations.

23. (1) Regulation 2 (1) of the 1984 Regulations, as amended by Regulation 3 (1) (c) of the 1991 Regulations, is hereby further amended by the substitution for the definition of "the Listing Particulars Directive" of the following:

" 'the Listing Particulars Directive' means Council Directive No. 80/390/EEC of 17 March 1980 as amended by Council Directive No. 87/345/EEC of 22 June 1987 and as further amended by Council Directive No. 90/211/EEC of 20 April 1990, the texts of which, in the English language, are set out in the Third and Fourth Schedules, respectively, to these Regulations;".

(2) The 1984 Regulations, as amended by the 1991 Regulations, are hereby further amended by the insertion of the text of the Second Schedule to these Regulations as the Fourth Schedule to the 1984 Regulations.

24 References in the 1984 Regulations to Articles of Directive 80/390/EEC.

24. (1) Reference in paragraph (e) of Regulation 11 of the 1984 Regulations to Article 24 of the Listing Particulars Directive shall be construed as reference to Article 24c, as inserted by the 1987 Directive.

(2) Reference in paragraph 11 of the Second Schedule to the 1984 Regulations, as inserted by the 1991 Regulations, to Article 24b of the Listing Particulars Directive shall be construed as references too that Article as amended by the 1990 Directive.

FIRST SCHEDULE.

THE PROSPECTUS DIRECTIVE.

COUNCIL DIRECTIVE.

of 17 April 1989,

coordinating the requirements for the drawing-up, scrutiny and distribution of the prospectus to be published when transferable securities are offered to the public.

(89/298/EEC)

The Council of the European Communities,

Having regard to the Treaty establishing the European Economic Community, and in particular Article 54 thereof,

⁽⁴⁾O.J. No. L185, 4-7-1987 pp. 81-83.

Having regard to the proposal from the Commission⁽¹⁾

In cooperation with the European Parliament⁽²⁾

Having regard to the opinion of the Economic and Social Committee⁽³⁾

Whereas investment in transferable securities, like any other form of investment, involves risks; whereas the protection of investors requires that they be put in a position to make a correct assessment of such risks so as to be able to take investment decisions in full knowledge of the facts;

Whereas the provision of full, appropriate information concerning transferable securities and the issuers of such securities promotes the protection of investors;

Whereas, moreover, such information is an effective means of increasing confidence in transferable securities and thus contributes to the proper functioning and development of transferable securities markets;

Whereas a genuine Community information policy relating to transferable securities should therefore be introduced; whereas, by virtue of the safeguards that it offers investors and its impact on the proper functioning of transferable securities markets, such an information policy is capable of promoting the interpretation of national transferable securities markets and thus encouraging the creation of a genuine European capital market;

Whereas Council Directive 80/390/EEC of 17 March 1980 coordinating the requirements for the drawing-up, scrutiny and distribution of the listing particulars to be published for the admission of securities to official stock exchange listing⁽⁴⁾, as last amended by Directive 87/345/EEC⁽⁵⁾, represents an important step in the implementation of such a Community information policy; whereas that Directive coordinates the information to be published when securities are admitted to stock exchange listing concerning the nature of the securities offered and the issuers of such securities, so as to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of issuers and of the rights attaching to such securities;

Whereas such an information policy also requires that when transferable securities are offered to the public for the first time in a Member State, whether by, or on behalf of the issuer or a third party, whether or not they are subsequently listed, a prospectus containing information of this nature must be made available to investors; whereas it is also necessary to coordinate the contents of that prospectus in order to achieve equivalence of the minimum safeguards afforded to investors in the various Member States;

Whereas, so far, it has proved impossible to furnish a common definition of the term 'public offer' and all its constituent parts;

Whereas, in cases where a public offer is of transferable securities which are to be admitted to official listing on a stock exchange, information similar to that required by Directive 80/390/EEC, whilst being adapted to the circumstances of the public offer, must be supplied; whereas, for public offers of transferable securities that are not to be admitted to official stock exchange listing, less detailed information can be required so as not to burden small and medium-sized issuers unduly; whereas, for public offers of transferable securities that are to be admitted to official stock exchange listing, the degree of coordination achieved is such that a prospectus approved by the competent authorities of a Member State can be used for public offers of the same securities in another Member State on the basis of mutual recognition; whereas mutual recognition should also apply where public offer prospectuses comply with the basic standards laid down in Directive 80/390/EEC and are approved by the competent authorities even in the absence of a request for admission to official stock exchange listing;

⁽¹⁾O.J. No. C226, 31, 8, 1982, p. 4.

⁽²⁾O.J. No. C125, 17.5.1982, p. 176 and O.J. No. C69, 20.3.1989.

⁽³⁾O.J. No. C. 310, 30.11.1981, p. 50.

⁽⁴⁾O.J. No. L100, 17.4.1980, p. 1.

⁽⁵⁾O.J. No. L185, 4.7.1987, p. 81.

Whereas in order to ensure that the purposes of this Directive will be fully realized it is necessary to include within the scope of this Directive transferable securities issued by companies or firms governed by the laws of third countries;

Whereas it is advisable to provide for the extension, by means of agreements to be concluded by the Community with third countries, of the recognition of prospectuses from those countries on a reciprocal basis:

Has adopted this directive:

SECTION I.

General provisions.

Article 1.

1. this Directive shall apply to transferable securities which are offered to the public for the first time in a Member State provided that these securities are not already listed on a stock exchange situated or operating in that Member State.

2. Where an offer to the public is for part only of the transferable securities from a single issue, the Member States need not require that another prospectus be published if the other part is subsequently offered to the public.

Article 2.

This Directive shall not apply:

1. To the following types of offer:

( a ) where transferable securities are offered to persons in the context of their trades, professions or occupations, and/or

( b ) where transferable securities are offered to a restricted circle of persons, and/or

( c ) where the selling price of all the transferable securities offered does not exceed ECU 40,000, and/or

( d ) where the transferable securities offered can be acquired only for a consideration of at least ECU 40,000 per investor;

2. To transferable securities of the following types:

( a ) to transferable securities offered in individual denominations of at least ECUu 40,000;

( b ) to units issued by collective investment undertakings other than of the closed-end type;

( c ) to transferable securities issued by a State or by one of a State's regional or local authorities or by public international bodies of which one or more Member States are members;

( d ) to transferable securities offered in connection with a take-over bid;

( e ) to transferable securities offered in connection with a merger;

( f ) to shares allotted free of charge to the holders of shares;

( g ) to shares or transferable securities equivalent to shares offered in exchange for shares in the same company if the offer of such new securities does not involve any overall increase in the company's issued shares capital;

( h ) to transferable securities offered by their employer or by an affiliated undertaking to or for the benefit of serving or former employees;

( i ) to transferable securities resulting from the conversion of convertible debt securities or from the exercise of the rights conferred by warrants or to shares offered in exchange for exchangeable debt securities, provided that a public offer prospectus or listing particulars relating to those convertible or exchangeable debt securities or those warrants were published in the same Member State;

( j ) to transferable securities issued, with a view to their obtaining the means necessary to achieve their disinterested objectives, by associations with legal status or non-profit-making bodies, recognized by the State;

( k ) to shares or transferable securities equivalent to shares, ownership of which entitles the holder to avail himself of the services rendered by bodies such as 'building societies', 'Crédits populaires', 'Genossenschaftsbanken', or 'Industrial and Provident Societies', or to become a member of such a body;

( l ) to Euro-securities which are not the subject of a generalized campaign of advertising or canvassing.

Article 3.

For the purposes of this Directive:

( a ) 'collective investment undertakings other than of the closed-end type' shall mean unit trusts and investment companies:

—the object of which is the collective investment of capital provided by the public, and which operate on the principle of risk spreading, and

—the units of which are, at the holders' request, repurchased or redeemed, directly or indirectly, out of the assets of those undertakings. Action taken by such undertakings to ensure that the stock exchange value of their units does not significantly vary from mtheir net asset value shall be regarded as equivalent to such repurchase or redemption;

( b ) 'units of a collective investment undertaking' shall mean transferable securities issued by a collective investment undertaking representing the rights of the participants in such an undertaking over its assets;

( c ) 'issuers' shall mean companies and other legal persons and any undertakings the transferable securities of which are offered to the public;

( d ) 'credit institution' shall mean an undertaking the business of which is to receive deposits or other repayable funds from the public and to grant credits for its own account, including credit institutions such as referred to in Article 2 of Directive 77/780/EEC⁽¹⁾, as last amended by Directive 86/524/EEC⁽²⁾;

( e ) 'transferable securities' shall mean shares in companies and other transferable securities equivalent to shares in companies, debt securities having a maturity of at least one year and other transferable securities equivalent to debt securities, and any other transferable security giving the right to acquire any such transferable securities by subscription or exchange;

( f ) 'Euro-securities' shall mean transferable securities which:

— are to be underwritten and distributed by a syndicate at least two of the members of which have their registered offices in different States, and

— are offered on a significant scale in one or more States other than that of the issuer's registered office, and

— may be subscribed for or initially acquired only through a credit institution or other financial institution.

Article 4.

Member States shall ensure that any offer of transferable securities to the public within their territories is subject to the publication of a prospectus by the person making the offer.

Article 5.

Member States may provide for partial or complete exemption from the obligation to publish a prospectus where the transferable securities being offered to the public are:

( a ) debt securities or other transferable securities equivalent to debt securities issued in a continuous or repeated manner by credit institutions or other financial institutions equivalent to credit institutions which regularly publish their annual accounts and which, within the Community, are set up or governed by a special law or pursuant to such a law, or are subject to public supervision intended to protect savings;

( b ) debt securities or other transferable securities equivalent to debt securities issued by companies and other legal persons which are nationals of a Member State and which:

— in carrying on their business, benefit from State monopolies, and

— are set up or governed by a special law or pursuant to such a law or whose borrowings are unconditionally and irrevocably guaranteed by a Member State or one of a Member State's regional or local authorities;

( c ) debt securities issued by legal persons, other than companies, which are nationals of a Member State, and

— were set up by special law, and

— whose activities are governed by that law and consist solely in

⁽¹⁾O.J. No. L322, 17.12.1977, p.30.

⁽²⁾O.J. No. L309, 4.11.1986, p. 15.

(i) raising funds under state control through the issue of debt securities; and

(ii) financing production by means of the resources which they have raised and resources provided by a Member State and/or acquiring a holding in such production, and

— the debt securities of which are, for the purposes of admission to official listing, considered by national law as debt securities issued or guaranteed by the State.

Article 6.

If a full prospectus has been published in a Member State within the previous 12 months, the following prospectus drawn up by the same issuer in the same State, but relating to different transferable securities, may indicate only those changes likely to influence the value of the securities which have occurred since publication of the full prospectus.

However, that prospectus may be made available only accompanied by the full prospectus to which it relates or by a reference thereto.

SECTION II.

Contents and arrangements for the scrutiny and distribution of the prospectus for transferable securities for which admission to official stock exchange listing is sought.

Article 7.

Where a public offer relates to transferable securities which at the time of the offer are the subject of an application for admission to official listing on a stock exchange situated or operating within the same Member State, the contents of the prospectus and the procedures for scrutinizing and distributing it shall, subject to adaptations appropriate to the circumstances of a public offer, be determined in accordance with Directive 80/390/EEC.

Article 8.

1. Where a public offer is made in one Member State and admission is sought to official listing on a stock exchange situated in another Member State, the person making the public offer shall have the possibility in the Member State in which the public offer is to be made of drawing up a prospectus the contents and procedures for scrutiny and distribution of which shall, subject to adaptations appropriate to the circumstances of a public offer, be determined in accordance with Directive 80/390/EEC.

2. Paragraph 1 shall apply only in those Member States which in general provide for the prior scrutiny of public offer prospectuses.

Article 9.

A prospectus must be published or made available to the public not later than the time when an offer is made to the public.

Article 10.

1. Where a prospectus in accordance with Article 7 or 8 is or is to be published, the advertisements, notices, posters and documents announcing the public offer must be communicated in advance to the competent authorities. The aforementioned documents must mention that there is a prospectus and state where the prospectus is published.

2. If the Member States authorize the distribution of the documents referred to in paragraph 1 before the prospectus is available, those documents must state that a prospectus will be published and indicate where members of the public will be able to obtain it.

3. The prospectus must be published either:

— by insertion in one or more newspapers circulated throughout the Member State in which the public offer is made, or

— in the form of a brochure to be made available, free of charge, to the public in the Member State in which the public offer is made and at the registered office of the person making the public offer and at the offices of the financial organizations retained to act as paying agents of the latter in the Member State where the offer is made.

4. In addition, either the complete prospectus or a notice stating where the prospectus has been published and where it may be obtained by the public must be inserted in a publication designated by the Member State in which the public offer is made.

SECTION III.

Contents and arrangements for the distribution of the prospectus for transferable securities for which admission to official stock-exchange listing is not sought.

Article 11.

1. Where a public offer relates to transferable securities other than those referred to in Articles 7 and 8, the prospectus must contain the information which, according to the particular nature of the issuer and of the transferable authorities offered to the public, is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses and prospects of the issuer and of the rights attaching to the transferable securities.

2. In order to fulfil the obligation referred to in paragraph 1, the prospectus shall, subject to the possibilities for exemption provided for in Articles 5 and 13, contain in as easily analysable and comprehensible a form a possible, at least the information listed below:

( a ) those responsible for the prospectus (names, functions and declarations by them that to the best of their knowledge the information contained in the prospectus is in accordance with the facts and that the prospectus makes no omission likely to affect its import);

( b ) the offer to the public and the transferable securities being offered (nature of the securities being offered, the amount and purpose of the issue, the number of securities issued and the rights attaching to them; the income tax withheld at source; the period during which the offer is open; the date on which entitlement to dividends or interest arises; the persons underwriting or guaranteeing the offer; any restrictions on the free transferability of the securities being offered and the markets on which they may be traded; the establishments serving as paying agents; if known, the price at which the securities are offered, or else, if national fules so provide, the procedure and timetable for fixing the price if it is not known when the prospectus is being drawn up; methods of payment; the procedure for the exercise of any right of pre-emption and the methods of and time-limits for delivery of the securities);

( c ) the issuer (name, registered office; its date of incorporation, the legislation applicable to the issuer and the issuer's legal form, its objects, indication of the register and of the entry number therein) and its capital (amount of the subscribed capital, the number and main particulars of the securities of which the capital consists and any part of the capital still to be paid up; the amount of any convertible debt securities, exchangeable debt securities or debt securities with warrants and the procedures for conversion, exchange or subscription; where appropriate, the group of undertakings to which the issuer belongs, in the case of shares, the following additional information must be supplied: any shares not representing capital, the amount of the authorized capital and the duration of the authorization; in so far as they are known, indication of the shareholders who directly or indirectly exercise or could exercise a determining role in the management of the issuer);

( d ) the issuer's principal activities (description of its principal activities, and, where appropriate, any exceptional factors which have influenced its activities; any dependence on patents, licences or contracts if these are of fundamental importance; information regarding investments in progress where they are significant; any legal proceedings having an important effect on the issuer's financial position);

( e ) the issuer's assets and liabilities, financial position and profits and losses (own accounts and, where appropriate, consolidated accounts; if the issuer prepares consolidated annual accounts only, it shall include those accounts in the prospectus; if the issuer prepares both own and consolidated accounts, it shall include both types of account in the prospectus; however, the issuer may include only one of the two, provided that the accounnts which are not included do not provide any significant additional information); interim accounts if any have been published since the end of the previous financial year; the name of the person responsible for auditing the accounts; if that person has qualified them or refused an audit report, the fact must be stated and the reasons given;

( f ) the issuer's administration, management and supervision (names, addresses, functions; in the case of an offer to the public of shares in a limited-liability company, remuneration of the members of the issuer's administrative, management and supervisory bodies);

( g ) to the extent that such information would have a significant impact on any assessment that might be made of the issuer, recent developments in its business and prospects (the most significant recent trends concerning the development of the issuer's business since the end of the proceeding financial year, information on the issuer's prospects for at least the current financial year).

3. Where a public offer relates to debt securities guaranteed by one or more legal persons, the information specified in paragraph 2 (c) to (g) must also be given with respect to the guarantor or guarantors.

4. Where a public offer relates to convertible debt securities, exchangeable debt securities or debt securities with warrants or to the warrants themselves, information must also be given with regard to the nature of the shares or debt securities to which they confer entitlement and the conditions of and procedures for conversion, exchange or subscription. Where the issuer of the shares or debt securities is not the issuer of the debt securities or warrants the information specified in paragraph 2 (c) to (g) must also be given with respect to the issuer of the shares or debt securities.

5. If the period of existence of the issuer is less than any period mentioned in paragraph 2, the information need be provided only for the period of the issuer's existence.

6. Where certain information specified in paragraph 2 is found to be inappropriate to the issuer's sphere of activity or its legal form or to the transferable securities being offered, a prospectus giving equivalent information must be drawn up.

7. Where shares are offered on a pre-emptive basis to shareholders of the issuer on the occasion of their admission to dealing on a stock exchange market, the Member States or bodies designated by them may allow some of the information specified in paragraph 2 (d), (e) and (f) to be omitted, provided that investors already possess up-to-date information about the issuer equivalent to that required by Section III as a result of stock exchange disclosure requirements.

8. Where a class of shares has been admitted to dealing on a stock exchange market, the Member States or bodies designated by them may allow a partial or complete exemption from the obligation to publish a prospectus if the number or estimated market value or the nominal value or, in the absence of a nominal value, the accounting par value of the shares offered amounts to less than 10 per cent of the number or of the corresponding value of shares of the same class already admitted to dealing, provided that investors already possess up-to-date information about the issuer equivalent to that required by Section III as a result of stock exchange disclosure requirements.

Article 12.

1. However, the Member States may provide that the person making a public offer shall have the possibility of drawing up a prospectus the contents of which shall, subject to adaptations appropriate to the circumstances of a public offer, be determined in accordance with Directive 80/390/EEC.

2. The prior scrutiny of the prospectus referred to in paragraph 1 must be carried out by the bodies designated by the Member States even in the absence of a request for admission to official stock-exchange listing,

Article 13.

1. The Member States or the bodies designated by them may authorize the omission from the prospectus referred to in Article 11 of certain information prescribed by this Directive:

( a ) if that information is of minor importance only and is not likely of influence assessment of the issuer's assets and liabilities, financial position, profits and losses and prospects; or

( b ) if disclosure of that information would be contrary to the public interest or seriously detrimental to the issuer, provided that, in the latter case, omission would not be likely to mislead the public with regard to facts and circumstances essential for assessment of the transferable securities.

2. Where the initiator of an offer is neither the issuer nor a third party acting on the issuer's behalf, the Member States or the bodies designated by them may authorize omission from the prospectus of certain information which would not normally be in the initiator's possession.

3. The Member States or the bodies designated by them may provide for partial or complete exemption from the obligation to publish a prospectus where the information which those making the offer are required to supply by law, regulation or rules made by bodies enabled to do so by national laws is available to investors not later than the time when the prospectus must be or should have been published or made available to the public, in accordance with this Directive, in the form of documents giving information at least equivalent to that required by Section III.

Article 14.

A prospectus must be communicated, before its publication, to the bodies designated for that purpose in each Member State in which the transferable securities are offered to the public for the first time.

Article 15.

A prospectus must be published or made available to the public in the Member State in which an offer to the public is made in accordance with the procedures laid down by that Member State.

Article 16.

A prospectus must be published or made available to the public not later than the time when an offer is made to the public.

Article 17.

1. When a prospectus complying with Article 11 or 12 is or must be published, the advertisements, notices, posters and documents announcing the public offer distributed or made available to members of the public by the person making the public offer, must be communicated in advance to the bodies designated in accordance with Article 14, if such bodies carry out prior scrutiny of public offer prospectuses. In such a case, the latter shall determine whether the documents concerned should be checked before publication. Such documents must state that a prospectus exists and indicate where it is published.

2. If Member States authorize the dissemination of the documents referred to in paragraph 1 before the prospectus is available, those documents must state that a prospectus will be published and indicate where members of the public will be able to obtain it.

Article 18.

Any significant new factor or significant inaccuracy in a prospectus capable of affecting assessment of the transferable securities which arises or is noted between the publication of the prospectus and the definitive closure of a public offer must be mentioned or rectified in a supplement to the prospectus, to be published or made available to the public in accordance with at least the same arrangements as were applied when the original prospectus was disseminated or in accordance with procedures laid down by the Member States or by the bodies designated by them.

SECTION IV.

Cooperation between Member States.

Article 19.

The Member States shall designate the bodies, which may be the same as those referred to in Article 14, which shall cooperate with each other for the purposes of the proper application of this Directive and shall use their best endeavours, within the framework of their responsibilities, to exchange all the information necessary to that end. Member States shall inform the Commission of the bodies thus designated. The Commission shall communicate that information to the other Member States.

Member States shall ensure that the bodies designated have the powers required for the accomplishment of their task.

Article 20.

1. Where, for the same transferable securities, public offers are made simultaneously or within a short interval of one another in two or more Member States and where a public offer prospectus is drawn up in accordance with Article 7, 8 or 12, the authority competent for the approval of the prospectus shall be that of the Member State in which the issuer has its registered office if the public offer or any application for admission to official listing on a stock exchange is made in that Member State.

2. However, if the Member State referred to in paragraph 1 does not provide in general for the prior scrutiny of public offer prospectuses and if only the public offer or an application for admission to listing is made in that Member State, as well as in all other cases, the person making the public offer must choose the supervisory authority from those in the Member States in which the public offer is made and which provide in general for the prior scrutiny of public offer prospectuses.

SECTION V.

Mutual recognition.

Article 21.

1. If approved in accordance with Article 20, a prospectus must, subject to translation if required, be recognized as complying or be deemed to comply with the laws of the other Member States in which the same transferable securities are offered to the public simultaneously or within a short interval of one another, without being subject to any form of approval there and without those States being able to require that additional information be included in the prospectus. Those Member States may, however, require that the prospectus include information specific to the market of the country in which the public offer is made concerning in particular the income tax system, the financial organizations retained to act as paying agents for the issuer in that country, and the way in which notices to investors are published.

2. A prospectus approved by the competent authorities within the meaning of Article 24a of Directive 80/390/EEC must be recognized as complying or be deemed to comply with the laws of another Member State in which the public offer is made, even if partial exemption or partial derogation has been granted pursuant to this Directive, provided, however, that:

( a ) the partial exemption or partial derogation in question is of a type that is recognized in the rules of the other Member State concerned; and

( b ) the circumstances that justify the partial exemption or partial derogation also exist in the other Member State concerned.

Even if the conditions laid down in (a) and (b) of the first subparagraph are not fulfilled, the Member State concerned may deem a prospectus approved by the competent authorities within the meaning of Article 20 to comply with its laws.

3. The person making the public offer shall communicate to the bodies designated by the other Member States in which the public offer is to be made the prospectus that it intends to use in that State. That prospectus must be the same as the prospectus approved by the authority referred to in Article 20.

4. The Member States may restrict the application of this Article to prospectuses concerning transferable securities of issuers who have their registered office in a Member State.

SECTION VI.

Cooperation.

Article 22.

1. The competent authorities shall cooperate wherever necessary for the purpose of carrying out their duties and shall exchange any information required for that purpose.

2. Where a public offer concerning transferable securities giving a right to participate in company capital, either immediately or at the end of a maturity period, is made in one or more Member States other than that in which the registered office of the issuer of the shares to which those securities give entitlement is situated, while that issuer's shares have already been admitted to official listing in that Member State, the competent authorities of the Member State of the offer may act only after having consulted the competent authorities of the Member State in which the registered office of the issuer of the shares in question is situated in cases where the public offer prospectus is scrutinized.

Article 23.

1. Member States shall provide that all persons then or previously employed by the authorities referred to in Article 20 shall be bound by the obligation of professional secrecy. This shall mean that they may not divulge any confidential information received in the course of their duties to any person or authority whatsoever, except by virtue of provisions laid down by law.

2. Paragraph 1 shall not prevent the various Member State authorities referred to in Article 20 from forwarding information as provided for in this Directive. The information thus exchanged shall be covered by the obligation of professional secrecy applying the persons employed then or previously by the authority receiving such information.

3. Without prejudice to cases covered by criminal law, the authorities referred to in Article 20 receiving information pursuant to Article 21 may use it only to carry out their functions or in the context of an administrative appeal or in court proceedings relating to the carrying out of those functions.

SECTION VII.

Negotiations with non-member countries.

Article 24.

The Community may, by means of agreements with one or more non-member countries concluded pursuant to the Treaty, recognize public offer prospectuses drawn up and scrutinized in accordance with the rules of the non-member country or countries concerned as meeting the requirements of this Directive, subject to reciprocity, provided that the rules concerned give investors protections equivalent to that afforded by this Directive, even if those rules differ from the provisions of this Directive.

SECTION VIII.

Contact Committee.

Article 25.

1. The Contact Committee set up by Article 20 of Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of transferable securities to official stock-exchange listing⁽¹⁾, as last amended by Directive 82/148/EEC⁽²⁾, shall also have as its function:

( a ) to facilitate, without prejudice to Articles 169 and 170 of the Treaty, the harmonized implementation of this Directive through regular consultations on any practical problems arising from its application on which exchanges of views are deemed useful;

( b ) to facilitate consultation between the Member States on the supplements and improvements to prospectuses which they are entitled to require or recommend at national level;

( c ) to advise the Commission, if necessary, on any additions or amendments to be made to this Directive.

2. It shall not be the function of the Contact Committee to appraise the merits of decisions taken in individual cases.

SECTION IX.

Final provisions.

Article 26.

1. Member States shall take the measures necessary for them to comply with this Directive by 17 April 1989. They shall forthwith inform the Commission thereof.

2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive.

Article 27.

This Directive is addressed to the Member States.

Done at Luxembourg, 17 April 1989.

For the Council,

The President,

C. SOLCHAGA CATALAN.

SECOND SCHEDULE.

THE 1990 DIRECTIVE.

COUNCIL DIRECTIVE.

of 23 April 1990,

amending Directive 80/390/EEC in respect of the mutual recognition of public-offer prospectuses as stock-exchange listing particulars.

(90/211/EEC)

The Council of the European Communities,

Having regard to the Treaty establishing the European Economic Community, and in particular Article 54 thereof,

⁽¹⁾O.J. No. L66, 16.3.1979, p. 1.

⁽²⁾O.J. No. L62, 5. 3. 1982, p. 22.

Having regard to the proposal from the Commission⁽¹⁾,

In cooperation with the European Parliament⁽²⁾

Having regard to the opinion of the Economic and Social Committee⁽³⁾,

Whereas Article 21 of Directive 89/298/EEC⁽⁴⁾ provides that where public offers are made simultaneously or within short intervals of one another in two or more Member States, a public-offer prospectus drawn up and approved in accordance with Article 7, 8 or 12 of that Directive must be recognized as a public-offer prospectus in the other Member States concerned on the basis of mutual recognition;

Whereas it is also desirable to provide the recognition of a public-offer prospectus as listing particulars where admission to official stock-exchange listing is requested within a short period of the public offer;

Whereas, therefore, it is appropriate to amend Article 24b of Directive 80/390/EEC⁽⁵⁾, as last amended by Directive 87/345/EEC⁽⁶⁾;

Whereas the mutual recognition of public-offer prospectuses does not in itself confer the right to admission to official stock-exchange listing,

Has adopted this Directive:

Article 1.

The following is hereby added to the beginning of Article 6 of Directive 80(390/EEC:

'Without prejudice to Article 24b (1).'

Article 2.

Paragraph 1 of Article 24b of Directive 80/390/EEC is hereby replaced by the following:

'1. Where application for admission to official listing in one or more Member States is made and the securities have been the subject of a public-offer prospectus drawn up and approved in any Member State in accordance with Article 7, 8 or 12 of Directive 89/298/EEC^(*) in the three months preceding the application for admission, the public-offer prospectus shall be recognized, subject to any translation, as listing particulars in the Member State or States in which application for admission to official listing is made, without its being necessary to obtain the approval of the competent authorities of that Member State or those Member States and without their being able to require that additional information be included in the prospectus. The competent authorities may, however, require that the prospectus include information specific to the market of the country of admission concerning, in particular, the income tax system, the financial organizations retained to act as paying agents for the issuer in the country of admission and the ways in which notices to investors are published.

⁽¹⁾O.J. No. C101, 22.4.1989, p. 13.

⁽²⁾O.J. No. C304, 8.12.1989, p. 34, O.J. No. C 38.19.2. 1990, p. 40.

⁽³⁾O.J. No. C. 201, 7.8.1989, p. 5.

⁽⁴⁾O.J. No. L124, 5.5.1989, p. 8.

⁽⁵⁾O.J. No. L100, 17.4.1980, p. 1.

⁽⁶⁾O.J. No. L185, 4.7.1987, p. 81.

^(*)O.J. No. L124, 5.5.1989, p. 8.

Article 3.

1. The Member States shall take the measures necessary for them to comply with this Directive by 17 April 1991. They shall forthwith inform the Commission thereof.

2. The Member State shall communicate to the Commission the texts of the main laws, regulations or administrative provisions which they adopt in the field covered by this Directive.

Article 4.

This Directive is addressed to the Member States.

Done at Luxembourg, 23 April 1990.

For the Council,

The President,

A. REYNOLDS

THIRD SCHEDULE.

Optional powers conferred on Member States by the Prospectus Directive (89/298/EEC).

1. Where an offer to the public is for part only of the securities from a single issue, it shall not be necessary to publish another prospectus if the other part is subsequently offered to the public.

2. The publication referred to in Article 10.4 of the Prospectus directive shall be "The Stock Exchange Official List — Irish".

3. The person making a public offer may draw up the prospectus in a manner described in Article 12 of the Prospectus Directive.

4. There shall be added to the information contained in a prospectus as approved by a competent authority in another Member State of the European Communities pursuant to Article 20 of the Prospectus Directive, so far as not included therein as so approved, the following information:—

( a ) a summary of the tax treatment of Irish resident holders of the securities,

( b ) the names and addresses of the paying agents for the securities in Ireland (if any), and

( c ) a statement of how notice of meetings and other notices from the issuer of the securities will be given to Irish resident holders of the securities.

5. Article 21 of the Prospectus Directive shall apply and have effect only in relation to prospectuses concerning transferable securities of issuers who have their registered offices in a Member State of the European Communities.

GIVEN under my Official Seal this 17th day of July, 1992.

DESMOND O'MALLEY,

Minister for Industry and Commerce.

EXPLANATORY NOTE.

The purpose of these Regulations is to implement two EEC Directives with effect from 1 September 1992.

The first, Council Directive 89/298/EEC of 17 April 1989, co-ordinates the requirements for the drawing up, scrutiny and distribution of the prospectus to be published when transferable securities are offered to the public.

The second, Council Directive 90/211/EEC of 23 April 1990, extends the principle of mutual recognition to provide that, where any public offer prospectus is approved by a Member State competent authority, then the prospectus can be used as a full listing particulars prospectus in any other Member State.