Implementation of EU Prospectus Directive in CEE

Transcription

1 Implementation of EU Prospectus Directive in CEE Contents Czech Republic. 2 Hungary. 4 Poland. 6 This publication is a summary of the current information available on how the Prospectus Directive (PD) is being implemented in Czech Republic, Hungary, Poland and Slovakia. If you would like information about how the Prospectus Directive is being implemented in Western Europe please contact us. Slovakia. 8 1 August

2 Czech Republic. At what date will the PD be implemented? Implementation of the PD is not expected until at least the last quarter of How is the PD being implemented? By an amendment to the act on business activities in capital markets (the Capital Markets Act ). A preliminary draft of the new law has been produced and discussed in the Legislative Council of the Government. It was returned with comments to the Ministry of Finance, the author of the draft, one month ago. The time scale for the adoption of the amendment is not yet known, but the legislative process will take at least until the last quarter of Is any additional clarificatory wording to be included in the definition of Public Offer contained in the PD? The draft amendment does not contain any material clarification to the definition of Public Offer set out in the PD. Instead of a communication to persons a Public Offer is defined in the draft amendment as a communication to a wider group of persons. The draft amendment amends slightly the current definition of Public Offer in the Capital Markets Act. Article 2(1)(e)(iv) and (v) of the PD provide that member states may choose to authorise natural persons and small and medium size enterprises as qualified investors if they meet certain criteria. Does your jurisdiction intend to exercise this choice? The draft amendment currently provides that a natural person or a small and medium sized enterprise can be considered a qualified investor if it requests registration as a qualified investor with the Security Exchange Commission or with a relevant authority in another Member State and it meets criteria identical to those set out in the PD. What rules will apply regarding the publication and availability of a prospectus once it has been approved? According to the draft amendment implementing the PD the prospectus shall be published in full without undue delay after its approval, in one or more of the following ways: 2 1 August 2005

3 (i) (ii) (iii) (iv) (v) in electronic form on the issuer's website and, if applicable, on the website of the financial intermediaries placing or selling the securities; or by publication in one or more newspapers circulated throughout the Czech Republic and at the same time in the manner stipulated under (i); or in a printed form to be made available, free of charge, to the public at the offices of the market on which the securities are being admitted to trading, or at the registered office of the issuer and at the offices of the financial intermediaries placing or selling the securities, and at the same time in the manner stipulated under (i); or in electronic form on the website of the regulated market where the admission to trading is sought; or in electronic form on the website of the person selling the securities if it is a person different from the issuer. It can be published in Czech or English, though a summary will always be required in Czech. The PD requires that at least one of several specified persons be identified as responsible for a prospectus. How is this being implemented? E.g. will it be possible for the responsibility statement to be given by the Issuer, or will the directors be required to make that statement? The persons who produced the prospectus (i.e. the issuer or a person wishing to offer the securities to the public or seeking the admission to trading on the official market) or a guarantor of the correctness of the information if he is mentioned in the prospectus are responsible for the correctness and completeness of the information provided in the prospectus. According to the wording of the draft, the issuing entity is taking responsibility, its directors act on its behalf but do not take the personal responsibility. Is a translation of the summary required where the prospectus is in a different language from that of the Member State? A summary in Czech is required in all circumstances. Contact. For further information on the issues discussed in this article please contact Jiri Pilar on or your usual Linklaters contact. 3

4 Hungary. When was the PD be implemented? The Hungarian Parliament voted on the relevant proposal on 20 June 2005, the new rules came into effect as of 1 July How was the PD implemented? An act amending the Hungarian Act CXX of 2001 on the capital markets was accepted. Is any additional clarificatory wording included in the definition of Public Offer contained in the PD as implemented? The Hungarian Capital Markets Act continues to use the definition of private placement and defines public offers as all securities issues which do not qualify as private placements. The definition of private placements includes all the exemptions from the public offer rules set out in the PD (commonly referred to as "wholesale exemptions"). So in practice, the same offering and selling restriction rules apply in Hungary. Article 2(1)(e)(iv) and (v) of the PD provides that member states may choose to authorise natural persons and small and medium size enterprises as qualified investors if they meet certain criteria. Has your jurisdiction exercised this choice? Hungary chose to authorise private individuals and small and mediumsized enterprises, pursuant to the Directive, as qualified investors, if they meet certain criteria. However, as such criteria relate primarily to size and frequency of securities transactions and/or the size of the investor's securities portfolio, it will be surprising if many private individuals request to be admitted to the publicly available list of such authorised "qualified investors" in Hungary. What rules apply regarding the publication and availability of a prospectus once it has been approved? The prospectus will have to be (i) published or (ii) free copies made available at the registered office of the issuer or at the offices of the dealers and the selling agents. The act defines various alternative places for publication: a) a daily newspaper with national coverage, or b) the website of the issuer and, if it has a website, the website of the lead manager, or c) the website of the regulated market on which the securities are traded, or d) the website of the Hungarian Financial Supervisory Authority. 4 1 August 2005

5 The PD requires that at least one of several specified persons be identified as responsible for a prospectus. How was this implemented E.g. is it possible for the responsibility statement to be given by the Issuer, or are the directors required to make that statement? With regard to the liability for the prospectus, a responsibility statement will have to be given by the Issuer (and/or the Selling Shareholder and/or the Guarantor, etc.). The directors are not required to make the responsibility statement. Is a translation of the summary required where the prospectus is in a different language from that of the Member State? Yes, the summary will have to be translated into Hungarian in cases where securities are offered to the public on the basis of a foreign language prospectus which has already been approved by another EU member state's competent authority. Contact. For further information on the issues discussed in this article please contact Andrea Miskolczi on or your usual Linklaters contact. 5

6 Poland. At what date will the PD be implemented? The bill implementing the PD is awaiting a second reading by the Polish Parliament. Although it is not known when it will be passed or come into force, it is expected to be implemented in August How is the PD being implemented? It will be implemented by way of a new law - the law on public offers and conditions for introduction of financial instruments to an organised trading system and on public companies (the Bill ). The Bill will replace the current law of 21 August 1997 on Public Trading in Securities ( The Securities Law ). Is any additional clarificatory wording to be included in the definition of Public Offer contained in the PD? The Bill contains two material clarifications to the definition of Public Offer set out in the PD. Information is defined as information which provides a satisfactory basis for reaching a decision on whether to acquire the relevant securities for payment or not and a communication to persons is defined as a communication to at least 100 people or unknown addressees within the territory of the Republic of Poland. Article 2(1)(e)(iv) and (v) of the PD provide that member states may choose to authorise natural persons and small and medium size enterprises as qualified investors if they meet certain criteria. Does your jurisdiction intend to exercise this choice? The Bill considers natural persons as well as small and medium size enterprises as qualified investors provided that they have their residency (seat) in the territory of the Republic of Poland and have been registered in the register of qualified investors or they have their residency (seat) in another Member State and have the status of qualified investors in that Member State. What rules will apply regarding the publication and availability of a prospectus once it has been approved? The approved prospectus must be made available to the public in any of the following ways: (i) by publication in one or more national newspapers, or 6 1 August 2005

7 (ii) (iii) (iv) by having a printed version of the prospectus available for the public at the offices of the regulated market on which the securities are listed, or at the registered office of the issuer and the offices of the relevant agents, or in electronic form on the website of the issuer and, if applicable, on the website of the relevant agents, or in electronic form on the website of the regulated market on which the securities are listed. The PD requires that at least one of several specified persons be identified as responsible for a prospectus. How is this being implemented? E.g. will it be possible for the responsibility statement to be given by the Issuer, or will the directors be required to make that statement? The Polish Bill, with regard to persons responsible for a prospectus, refers to Commission Regulation (EC) 809/2004. The responsibility for the information given in a prospectus rests with the natural persons which are members of the Issuer s management or supervisory bodies and are authorised to act on behalf of the Issuer. However, in the opinion of the Bill s authors, persons preparing different parts of the prospectus are also liable through making declarations that the information prepared by them and contained in the prospectus is in accordance with the facts and that the prospectus makes no omission. Is a translation of the summary required where the prospectus is in a different language from that of the Member State? If the prospectus is issued to Polish investors, the Securities and Exchange Commission requires that the summary be translated into Polish. Contact. For further information on the issues discussed in this article please contact Malgorzata Jaraszek on or your usual Linklaters contact. 7

8 Slovakia. At what date will the PD be implemented? The PD is effective from 1 August How is the PD being implemented? The PD has been implemented via an amendment to the Act on Securities (Zákon o cenných papieroch 566/2001; the Amendment ). The Amendment has been approved by the Slovak Parliament, and published in the official Collection of Laws 27 July Is any additional clarificatory wording to be included in the definition of Public Offer contained in the PD as implemented? The definition in the Amendment is almost verbatim the same as the definition in the PD and no additional wording shall be included. Article 2(1)(e)(iv) and (v) of the PD provides that member states may choose to authorise natural persons and small and medium sized enterprises as qualified investors if they meet certain criteria. Does your jurisdiction intend to exercise this choice? Pursuant to the Amendment natural persons may be eligible as qualified investors if they are registered in any Member State or in Slovakia with the Financial Market Office (the FMO ) as qualified investors within the meaning of the PD. Small and medium sized enterprises may be eligible as qualified investors if they are registered in any Member State (in Slovakia with the FMO) as qualified investors within the meaning of the PD and meet at least 2 of the following 3 criteria: (i) the investor has made significant operations on the securities market, i.e. at least 10 operations on average per quarter within the 4 preceding quarters, significant operation is to be understood as an operation with securities where the value of the operation exceeds EUR 6,000, (ii) the value of the investor's securities portfolio exceeds EUR 500,000, and (iii) the investor works or worked in the financial sector for at least 1 year in a profession requiring knowledge relating to investment in securities. 8 1 August 2005

9 What rules will apply regarding the publication and availability of a prospectus once it has been approved? The prospectus may be made publicly available by means of one of the following: a) publication in a newspaper of nationwide distribution or with broad coverage in the Member States in which the securities are publicly offered or listed (in this case the prospectus also needs to be published in accordance with section c) below, if the aggregate value of the offered securities exceeds EUR 20,000,000), b) a printed brochure available free of charge either from the holder/organiser of the regulated market or from the issuer or the manager(s) (in this case the prospectus also needs to be published in accordance with section c) below, if the aggregate value of the offered securities exceeds EUR 20,000,000), c) posting on the website of the issuer and, if applicable, the manager(s), d) posting on the website of the holder/organiser of the regulated market or e) posting on the website of the regulator if this facility is offered. Except for section a) above, information regarding where the prospectus is publicly available and the place where such prospectus may be obtained needs to be published in a newspaper of nationwide distribution or with broad coverage in the Member States in which the securities are publicly offered or listed. The PD requires that at least one of several specified persons be identified as responsible for a prospectus. How is this being implemented E.g. will it be possible for the responsibility statement to be given by the Issuer, or will the directors be required to make that statement? The Amendment provides that either an issuer or its statutory representatives/supervising body, or an offeror (either individual or legal entity) or a person who requests the listing on the regulated market or the guarantor, are the responsible person(s) for the information provided in a prospectus. The prospectus must clearly set out the responsible persons, in the case of individuals with their name and function and in the case of a legal person with its business name and registered office. The prospectus must also contain a declaration of such responsible persons stating that, to their knowledge, the information provided in the prospectus is correct and complete. The Amendment does not oblige the directors to make any other responsibility statements. 9

10 Central & Eastern European Offices: Bratislava Hlavné námestie 5, 1st Floor Bratislava Slovakia Telephone: (421-2) Facsimile: (421-2) Bucharest 8 Nicolae Iorga Sector 1, Bucharest Romania Telephone: (40-21) Facsimile: (40-21) Budapest Akadémia Bank Center Széchenyi rakpart 3. H-1054 Budapest Hungary Telephone: (36-1) Facsimile: (36-1) Is a translation of the summary required where the prospectus is in a different language from that of the Member State? The Amendment states that where the prospectus is in a language other than Slovak and an offer to the public is being made in the Slovak republic or a request for listing on the regulated market of the Slovak Republic us being made the FMO may request the translation of the summary into Slovak. Contact. For further information on the issues discussed in this article please contact Pavol Blanar on or Oldrich Vdolecek on or your usual Linklaters contact. Moscow Paveletskaya Square 2, bld. 2 Moscow Russia Telephone: (7-095) Facsimile: (7-095) Prague Palác Myslbek Na Příkopě Prague 1 Czech Republic Telephone: (420) Facsimile: (420) Warsaw Warsaw Towers ul. Sienna 39 7th floor Warsaw Poland Telephone: (48-22) Facsimile: (48-22) Other offices: London One Silk Street London EC2Y 8HQ United Kingdom Telephone: (44-20) Facsimile: (44-20) Alicante Amsterdam Antwerp Bangkok Beijing Berlin Brussels Cologne Frankfurt am Main Hong Kong Lisbon Luxembourg Madrid Milan Munich New York Paris Rome Sao Paulo Shanghai Singapore Stockholm Tokyo 10 This publication is intended merely to highlight issues and not to be comprehensive, nor to provide legal advice. Should you have any questions on issues reported here or on other areas of law, please contact one of your regular contacts at Linklaters, or contact the editors. Linklaters. All Rights reserved 2005 We currently hold your contact details, which we use to send you newsletters such as this and for other marketing and business communications. We use your contact details for our own internal purposes only. This information is available to our offices worldwide and to those of our associated firms. If any of your details are incorrect or have recently changed, or if you no longer wish to receive this newsletter or other marketing communications, please let us know by ing us at marketing.database@linklaters.com