Directive 2013/50/EU of the European Parliament and of the CouncilShow full title

Article 1 Amendments to Directive 2004/109/EC

Directive 2004/109/EC is hereby amended as follows:

(1)

Article 2 is amended as follows:

(a)

paragraph 1 is amended as follows:

(i)

point (d) is replaced by the following:

‘(d)

“issuer” means a natural person, or a legal entity governed by private or public law, including a State, whose securities are admitted to trading on a regulated market.

In the case of depository receipts admitted to trading on a regulated market, the issuer means the issuer of the securities represented, whether or not those securities are admitted to trading on a regulated market;’;

(ii)

point (i) is amended as follows:

(i)

in point (i), the second indent is replaced by the following:

• ‘where the issuer is incorporated in a third country, the Member State chosen by the issuer from amongst the Member States where its securities are admitted to trading on a regulated market. The choice of home Member State shall remain valid unless the issuer has chosen a new home Member State under point (iii) and has disclosed the choice in accordance with the second paragraph of this point [letter] (i);’;

(ii)

point (ii) is replaced by the following:

‘(ii)

for any issuer not covered by point (i), the Member State chosen by the issuer from among the Member State in which the issuer has its registered office, where applicable, and those Member States where its securities are admitted to trading on a regulated market. The issuer may choose only one Member State as its home Member State. Its choice shall remain valid for at least three years unless its securities are no longer admitted to trading on any regulated market in the Union or unless the issuer becomes covered by points (i) or (iii) during the three-year period;’;

(iii)

the following point is added:

‘(iii)

for an issuer whose securities are no longer admitted to trading on a regulated market in its home Member State as defined by the second indent of point (i) or (ii) but instead are admitted to trading in one or more other Member States, such new home Member State as the issuer may choose from amongst the Member States where its securities are admitted to trading on a regulated market and, where applicable, the Member State where the issuer has its registered office;’;

(iv)

the following paragraphs are added:

‘An issuer shall disclose its home Member State as referred to in points (i), (ii) or (iii) in accordance with Articles 20 and 21. In addition, an issuer shall disclose its home Member State to the competent authority of the Member State where it has its registered office, where applicable, to the competent authority of the home Member State and to the competent authorities of all host Member States.

In the absence of disclosure by the issuer of its home Member State as defined by the second indent of point (i) or (ii) within a period of three months from the date the issuers’ securities are first admitted to trading on a regulated market, the home Member State shall be the Member State where the issuer’s securities are admitted to trading on a regulated market. Where the issuer’s securities are admitted to trading on regulated markets situated or operating within more than one Member State, those Member States shall be the issuer’s home Member States until a subsequent choice of a single home Member State has been made and disclosed by the issuer.

For an issuer whose securities are already admitted to trading on a regulated market and whose choice of home Member State as referred to in the second indent of point (i) or in point (ii) has not been disclosed prior to 27 November 2015, the period of three months shall start on 27 November 2015.

An issuer that has made a choice of a home Member State as referred to in the second indent of point (i) or in point (ii) or (iii) and has communicated that choice to the competent authorities of the home Member State prior to 27 November 2015 shall be exempted from the requirement under the second paragraph of this point [letter] (i), unless such issuer chooses another home Member State after 27 November 2015’;

(iii)

the following point is added:

‘(q)

“formal agreement” means an agreement which is binding under the applicable law.’;

(b)

the following paragraph is inserted:

‘2a. Any reference to legal entities in this Directive shall be understood as including registered business associations without legal personality and trusts.’;

(2)

Article 3 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1. The home Member State may make an issuer subject to requirements more stringent than those laid down in this Directive, except that it may not require issuers to publish periodic financial information on a more frequent basis than the annual financial reports referred to in Article 4 and the half-yearly financial reports referred to in Article 5.’;

(b)

the following paragraph is inserted:

‘1a. By way of derogation from paragraph 1, the home Member States may require issuers to publish additional periodic financial information on a more frequent basis than the annual financial reports referred to in Article 4 and the half-yearly financial reports referred to in Article 5, where the following conditions are met:

• the additional periodic financial information does not constitute a disproportionate financial burden in the Member State concerned, in particular for the small and medium-sized issuers concerned, and

• the content of the additional periodic financial information required is proportionate to the factors that contribute to investment decisions by the investors in the Member State concerned.

Before taking a decision requiring issuers to publish additional periodic financial information, Member States shall assess both whether such additional requirements may lead to an excessive focus on the issuers’ short-term results and performance and whether they may impact negatively on the ability of small and medium-sized issuers to have access to the regulated markets.

This is without prejudice to the ability of Member States to require the publication of additional periodic financial information by issuers who are financial institutions.

The home Member State may not make a holder of shares, or a natural person or legal entity referred to in Article 10 or 13, subject to requirements more stringent than those laid down in this Directive, except when:

(i)

setting lower or additional notification thresholds than those laid down in Article 9(1) and requiring equivalent notifications in relation to thresholds based on capital holdings;

(ii)

applying more stringent requirements than those referred to in Article 12; or

(iii)

applying laws, regulations or administrative provisions adopted in relation to takeover bids, merger transactions and other transactions affecting the ownership or control of companies, supervised by the authorities appointed by Member States pursuant to Article 4 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids(1).’;

(3)

Article 4 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1. The issuer shall make public its annual financial report at the latest four months after the end of each financial year and shall ensure that it remains publicly available for at least 10 years.’;

(b)

the following paragraph is added:

‘7. With effect from 1 January 2020 all annual financial reports shall be prepared in a single electronic reporting format provided that a cost-benefit analysis has been undertaken by the European Supervisory Authority (European Securities and Markets Authority) (ESMA) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council(2).

ESMA shall develop draft regulatory technical standards to specify the electronic reporting format, with due reference to current and future technological options. Before the adoption of the draft regulatory technical standards, ESMA shall carry out an adequate assessment of possible electronic reporting formats and conduct appropriate field tests. ESMA shall submit those draft regulatory technical standards to the Commission at the latest by 31 December 2016.

Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’;

(4)

in Article 5, paragraph 1 is replaced by the following:

‘1. The issuer of shares or debt securities shall make public a half-yearly financial report covering the first six months of the financial year as soon as possible after the end of the relevant period, but at the latest three months thereafter. The issuer shall ensure that the half-yearly financial report remains available to the public for at least 10 years.’;

(5)

Article 6 is replaced by the following:

‘Article 6 Report on payments to governments

Member States shall require issuers active in the extractive or logging of primary forest industries, as defined in Article 41(1) and (2) of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC(3), to prepare on an annual basis, in accordance with Chapter 10 of that Directive, a report on payments made to governments. The report shall be made public at the latest six months after the end of each financial year and shall remain publicly available for at least 10 years. Payments to governments shall be reported at consolidated level.’;

(6)

Article 8 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1. Articles 4 and 5 shall not apply to the following issuers:

(a) a State, a regional or local authority of a State, a public international body of which at least one Member State is a member, the European Central Bank (ECB), the European Financial Stability Facility (EFSF) established by the EFSF Framework Agreement and any other mechanism established with the objective of preserving the financial stability of European monetary union by providing temporary financial assistance to the Member States whose currency is the euro and Member States’ national central banks whether or not they issue shares or other securities; and

(b) an issuer exclusively of debt securities admitted to trading on a regulated market, the denomination per unit of which is at least EUR 100 000 or, in the case of debt securities denominated in a currency other than euro, the value of such denomination per unit is, at the date of the issue, equivalent to at least EUR 100 000.’;

(b)

paragraph 4 is replaced by the following:

‘4. By way of derogation from point (b) of paragraph 1 of this Article, Articles 4 and 5 shall not apply to issuers exclusively of debt securities the denomination per unit of which is at least EUR 50 000 or, in the case of debt securities denominated in a currency other than euro, the value of such denomination per unit is, at the date of the issue, equivalent to at least EUR 50 000, which have already been admitted to trading on a regulated market in the Union before 31 December 2010, for as long as such debt securities are outstanding.’;

(7)

Article 9 is amended as follows:

(a)

paragraph 6 is replaced by the following:

‘6. This Article shall not apply to voting rights held in the trading book, as defined in Article 11 of Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions(4), of a credit institution or investment firm provided that:

(a) the voting rights held in the trading book do not exceed 5 %; and

(b) the voting rights attached to shares held in the trading book are not exercised or otherwise used to intervene in the management of the issuer.’;

(b)

the following paragraphs are inserted:

‘6a. This Article shall not apply to voting rights attached to shares acquired for stabilisation purposes in accordance with Commission Regulation (EC) No 2273/2003 of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards exemptions for buy-back programmes and stabilisation of financial instruments(5), provided the voting rights attached to those shares are not exercised or otherwise used to intervene in the management of the issuer.

6b. ESMA shall develop draft regulatory technical standards to specify the method of calculation of the 5 % threshold referred to in paragraphs 5 and 6, including in the case of a group of companies, taking into account Article 12(4) and (5).

ESMA shall submit those draft regulatory technical standards to the Commission by 27 November 2014.

Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’;

(8)

in Article 12(2), the introductory wording is replaced by the following:

‘The notification to the issuer shall be effected promptly, but not later than four trading days after the date on which the shareholder, or the natural person or legal person referred to in Article 10,’;

(9)

Article 13 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1. The notification requirements laid down in Article 9 shall also apply to a natural person or legal entity who holds, directly or indirectly:

(a) financial instruments that, on maturity, give the holder, under a formal agreement, either the unconditional right to acquire or the discretion as to his right to acquire, shares to which voting rights are attached, already issued, of an issuer whose shares are admitted to trading on a regulated market;

(b) financial instruments which are not included in point (a) but which are referenced to shares referred to in that point and with economic effect similar to that of the financial instruments referred to in that point, whether or not they confer a right to a physical settlement.

The notification required shall include the breakdown by type of financial instruments held in accordance with point (a) and financial instruments held in accordance with point (b) of that subparagraph, distinguishing between the financial instruments which confer a right to a physical settlement and the financial instruments which confer a right to a cash settlement.’;

(b)

the following paragraphs are inserted:

‘1a. The number of voting rights shall be calculated by reference to the full notional amount of shares underlying the financial instrument except where the financial instrument provides exclusively for a cash settlement, in which case the number of voting rights shall be calculated on a “delta-adjusted” basis, by multiplying the notional amount of underlying shares by the delta of the instrument. For this purpose, the holder shall aggregate and notify all financial instruments relating to the same underlying issuer. Only long positions shall be taken into account for the calculation of voting rights. Long positions shall not be netted with short positions relating to the same underlying issuer.

ESMA shall develop draft regulatory technical standards to specify:

(a) the method for calculating the number of voting rights referred to in the first subparagraph in the case of financial instruments referenced to a basket of shares or an index; and

(b) the methods for determining delta for the purposes of calculating voting rights relating to financial instruments which provide exclusively for a cash settlement as required by the first subparagraph.

ESMA shall submit those draft regulatory technical standards to the Commission by 27 November 2014.

Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

1b. For the purposes of paragraph 1, the following shall be considered to be financial instruments, provided they satisfy any of the conditions set out in points (a) or (b) of the first subparagraph of paragraph 1:

(a) transferable securities;

(b) options;

(c) futures;

(d) swaps;

(e) forward rate agreements;

(f) contracts for differences; and

(g) any other contracts or agreements with similar economic effects which may be settled physically or in cash.

ESMA shall establish and periodically update an indicative list of financial instruments that are subject to notification requirements pursuant to paragraph 1, taking into account technical developments on financial markets.’;

(c)

paragraph 2 is replaced by the following:

‘2. The Commission shall be empowered to adopt, by means of delegated acts in accordance with Article 27(2a), (2b) and (2c), and subject to the conditions laid down by Articles 27a and 27b, the measures to specify the contents of the notification to be made, the notification period and to whom the notification is to be made as referred to in paragraph 1.’;

(d)

the following paragraph is added:

‘4. The exemptions laid down in Article 9(4), (5) and (6) and in Article 12(3), (4) and (5) shall apply mutatis mutandis to the notification requirements under this Article.

ESMA shall develop draft regulatory technical standards to specify the cases in which the exemptions referred to in the first subparagraph apply to financial instruments held by a natural person or a legal entity fulfilling orders received from clients or responding to a client’s requests to trade otherwise than on a proprietary basis, or hedging positions arising out of such dealings.

ESMA shall submit those draft regulatory technical standards to the Commission by 27 November 2014.

Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’;

(10)

the following article is inserted:

‘Article 13a Aggregation

1. The notification requirements laid down in Articles 9, 10 and 13 shall also apply to a natural person or a legal entity when the number of voting rights held directly or indirectly by such person or entity under Articles 9 and 10 aggregated with the number of voting rights relating to financial instruments held directly or indirectly under Article 13 reaches, exceeds or falls below the thresholds set out in Article 9(1).

The notification required under the first subparagraph of this paragraph shall include a breakdown of the number of voting rights attached to shares held in accordance with Articles 9 and 10 and voting rights relating to financial instruments within the meaning of Article 13.

2. Voting rights relating to financial instruments that have already been notified in accordance with Article 13 shall be notified again when the natural person or the legal entity has acquired the underlying shares and such acquisition results in the total number of voting rights attached to shares issued by the same issuer reaching or exceeding the thresholds laid down by Article 9(1).’;

(11)

Article 16(3) is deleted;

(12)

in Article 19(1), the second subparagraph is deleted;

(13)

Article 21(4) is replaced by the following:

‘4. The Commission shall be empowered to adopt, by means of delegated acts in accordance with Article 27(2a), (2b) and (2c), and subject to the conditions laid down in Articles 27a and 27b, measures to specify the following:

(a) minimum standards for the dissemination of regulated information, as referred to in paragraph 1;

(b) minimum standards for the central storage mechanisms as referred to in paragraph 2;

(c) rules to ensure the interoperability of the information and communication technologies used by the mechanisms referred to in paragraph 2 and access to regulated information at the Union level, referred to therein.

The Commission may also specify and update a list of media for the dissemination of information to the public.’;

(14)

the following article is inserted:

‘Article 21a European electronic access point

1. A web portal serving as a European electronic access point (“the access point”) shall be established by 1 January 2018. ESMA shall develop and operate the access point.

2. The system of interconnection of officially appointed mechanisms shall be composed of:

• the mechanisms referred to in Article 21(2),

• the portal serving as the European electronic access point.

3. Member States shall ensure access to their central storage mechanisms via the access point.’;

(15)

Article 22 is replaced by the following:

‘Article 22 Access to regulated information at Union level

1. ESMA shall develop draft regulatory technical standards setting technical requirements regarding access to regulated information at Union level in order to specify the following:

(a) the technical requirements regarding communication technologies used by the mechanisms referred to in Article 21(2);

(b) the technical requirements for the operation of the central access point for the search for regulated information at Union level;

(c) the technical requirements regarding the use of a unique identifier for each issuer by the mechanisms referred to in Article 21(2);

(d) the common format for the delivery of regulated information by the mechanisms referred to in Article 21(2);

(e) the common classification of regulated information by the mechanisms referred to in Article 21(2) and the common list of types of regulated information.

2. In developing the draft regulatory technical standards, ESMA shall take into account the technical requirements for the system of interconnection of business registers established by Directive 2012/17/EU of the European Parliament and of the Council(6).

ESMA shall submit those draft regulatory technical standards to the Commission by 27 November 2015.

Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’;

(16)

in Article 23(1), the following subparagraph is added:

‘The information covered by the requirements laid down in the third country shall be filed in accordance with Article 19 and disclosed in accordance with Articles 20 and 21.’;

(17)

in Article 24, the following paragraphs are inserted:

‘4a. Without prejudice to paragraph 4, competent authorities shall be given all investigative powers that are necessary for the exercise of their functions. Those powers shall be exercised in conformity with national law.

4b. Competent authorities shall exercise their sanctioning powers, in accordance with this Directive and national law, in any of the following ways:

• directly,

• in collaboration with other authorities,

• under their responsibility by delegation to such authorities,

• by application to the competent judicial authorities.’;

(18)

in Article 25(2), the following subparagraph is added:

‘In the exercise of their sanctioning and investigative powers, competent authorities shall cooperate to ensure that sanctions or measures produce the desired results, and shall coordinate their action when dealing with cross-border cases.’;

(19)

the following title is inserted after Article 27b:

‘CHAPTER VIA SANCTIONS AND MEASURES’;

(20)

Article 28 is replaced by the following:

‘Article 28 Administrative measures and sanctions

1. Without prejudice to the powers of competent authorities in accordance with Article 24 and the right of Member States to provide for and impose criminal sanctions, Member States shall lay down rules on administrative measures and sanctions applicable to breaches of the national provisions adopted in transposition of this Directive and shall take all measures necessary to ensure that they are implemented. Those administrative measures and sanctions shall be effective, proportionate and dissuasive.

2. Without prejudice to Article 7, Member States shall ensure that where obligations apply to legal entities, in the event of a breach, sanctions can be applied, subject to the conditions laid down in national law, to the members of administrative, management or supervisory bodies of the legal entity concerned, and to other individuals who are responsible for the breach under national law.’;

(21)

the following articles are inserted:

‘Article 28a Breaches

Article 28b shall apply at least to the following breaches:

(a)

failure by the issuer to make public, within the required time limit, information required under the national provisions adopted in transposition of Articles 4, 5, 6, 14 and 16;

(b)

failure by the natural or the legal person to notify, within the required time limit, the acquisition or disposal of a major holding in accordance with the national provisions adopted in transposition of Articles 9, 10, 12, 13 and 13a.

Article 28b Sanctioning powers

1. In the case of breaches referred to in Article 28a, competent authorities shall have the power to impose at least the following administrative measures and sanctions:

(a) a public statement indicating the natural person or the legal entity responsible and the nature of the breach;

(b) an order requiring the natural person or the legal entity responsible to cease the conduct constituting the breach and to desist from any repetition of that conduct;

(c) administrative pecuniary sanctions of;

(i)

in the case of a legal entity,

• up to EUR 10 000 000 or up to 5 % of the total annual turnover according to the last available annual accounts approved by the management body; where the legal entity is a parent undertaking or a subsidiary of a parent undertaking which has to prepare consolidated financial accounts pursuant to Directive 2013/34/EU, the relevant total turnover shall be the total annual turnover or the corresponding type of income pursuant to the relevant accounting Directives according to the last available consolidated annual accounts approved by the management body of the ultimate parent undertaking, or

• up to twice the amount of the profits gained or losses avoided because of the breach, where those can be determined,

whichever is higher;

(ii)

in the case of a natural person:

• up to EUR 2 000 000, or

• up to twice the amount of the profits gained or losses avoided because of the breach, where those can be determined,

whichever is higher.

In Member States where the euro is not the official currency, the corresponding value to euro in the national currency shall be calculated taking into account the official exchange rate on the date of entry into force of Directive 2013/50/EU of the European Parliament and of the Council of 22 October 2013 amending Directive 2004/109/EC of the European Parliament and of the Council on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, Directive 2003/71/EC of the European Parliament and of the Council on the prospectus to be published when securities are offered to the public or admitted to trading and Commission Directive 2007/14/EC laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC(7).

2. Without prejudice to the powers of competent authorities under Article 24 and the right of Member States to impose criminal sanctions, Member States shall ensure that their laws, regulations or administrative provisions provide for the possibility of suspending the exercise of voting rights attached to shares in the event of breaches as referred to in point (b) of Article 28a. Member States may provide that the suspension of voting rights is to apply only to the most serious breaches.

3. Member States may provide for additional sanctions or measures and for higher levels of administrative pecuniary sanctions than those provided for in this Directive.

Article 28c Exercise of sanctioning powers

1. Member States shall ensure that, when determining the type and level of administrative sanctions or measures, the competent authorities take into account all relevant circumstances, including where appropriate:

(a) the gravity and the duration of the breach;

(b) the degree of responsibility of the natural person or legal entity responsible;

(c) the financial strength of the natural person or legal entity responsible, for example as indicated by the total turnover of the legal entity responsible or the annual income of the natural person responsible;

(d) the importance of profits gained or losses avoided by the natural person or legal entity responsible, in so far as they can be determined;

(e) the losses sustained by third parties as a result of the breach, in so far as they can be determined;

(f) the level of cooperation of the natural person or legal entity responsible with the competent authority;

(g) previous breaches by the natural person or legal entity responsible.

2. The processing of personal data collected in or for the exercise of the supervisory and investigatory powers in accordance with this Directive shall be carried out in accordance with Directive 95/46/EC and Regulation (EC) No 45/2001 where relevant.’;

(22)

the following title is inserted before Article 29:

‘CHAPTER VIB PUBLICATION OF DECISIONS’;

(23)

Article 29 is replaced by the following:

‘Article 29 Publication of decisions

1. Member States shall provide that competent authorities are to publish every decision on sanctions and measures imposed for a breach of this Directive without undue delay, including at least information on the type and nature of the breach and the identity of natural persons or legal entities responsible for it.

However, competent authorities may delay publication of a decision, or may publish the decision on an anonymous basis in a manner which is in conformity with national law, in any of the following circumstances:

(a) where, in the event that the sanction is imposed on a natural person, publication of personal data is found to be disproportionate by an obligatory prior assessment of the proportionality of such publication;

(b) where publication would seriously jeopardise the stability of the financial system or an ongoing official investigation;

(c) where publication would, in so far as can be determined, cause disproportionate and serious damage to the institutions or natural persons involved.

2. If an appeal is submitted against the decision published under paragraph 1, the competent authority shall be obliged either to include information to that effect in the publication at the time of the publication or to amend the publication if the appeal is submitted after the initial publication.’;

(24)

Article 31(2) is replaced by the following:

‘2. Where Member States adopt measures pursuant to Article 3(1), 8(2) or 8(3) or Article 30, they shall immediately communicate those measures to the Commission and to the other Member States.’.

(1)

OJ L 142, 30.4.2004, p. 12.’;

(2)

OJ L 331, 15.12.2010, p. 84.’;

(3)

OJ L 182, 29.6.2013, p. 19.’;

(4)

OJ L 177, 30.6.2006, p. 201.’;

(5)

OJ L 336, 23.12.2003, p. 33.’;

(6)

OJ L 156, 16.6.2012, p. 1.’;

(7)

OJ L 294, 6.11.2013, p. 13.’;