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THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies(1) and in particular Articles 3a(8), 3b(6) and 3c(3) thereof,
Whereas:
(1) Directive 2007/36/EC gives the right to listed companies to identify their shareholders and requires intermediaries to cooperate in that identification process. That Directive also aims to improve the communication by listed companies to their shareholders, in particular the transmission of information along the chain of intermediaries and requires intermediaries to facilitate the exercise of shareholders rights. Those rights include the right to participate and vote in general meetings, and financial rights such as the right to receive the distributions of profits or participate in other corporate events initiated by the issuer or third party.
(2) This Regulation aims to prevent the diverging implementation of the provisions of Directive 2007/36/EC, which could result in the adoption of incompatible national standards, thereby increasing the risks and costs of cross-border operations and thus jeopardising their effectiveness and efficiency, and resulting in additional burdens for intermediaries. The use of common formats of data and message structures in transmissions should enable efficient and reliable processing and interoperability between intermediaries, the issuer and its shareholders, thus ensuring the efficient functioning of Union capital markets for shares.
(3) Consistent with the scope of the empowerments and the principles of proportionality this Regulation only includes minimum requirements. Intermediaries and other market participants are encouraged to further self-regulate these formats according to the needs of different markets. They could also endeavour to further standardise the messages referred to in this Regulation and any other message types necessary to facilitate the exercise of shareholders rights and to adopt new technologies that could enhance transparency and trust.
(4) In order to facilitate the exercise of shareholders rights and make it more efficient, particularly across borders, the use of modern technologies in communication between issuers and their shareholders and by intermediaries, including other service providers which are deployed for these processes, should be encouraged. Any communication between intermediaries should, to the extent possible be transmitted using machine-readable and standardised formats which are interoperable between operators and which allow straight-through processing. However, intermediaries should make accessible to shareholders, who are not intermediaries, information and the means to react using widely available modalities, which enable straight-through processing by intermediaries.
(5) The minimum requirements as regards the request to disclose shareholder information and the response to be transmitted should be established to ensure a uniform, automated and smooth application of the issuer's right to know its shareholders.
(6) Without prejudice to the convocation of the general meeting, in order to ensure straight-through processing it is necessary to lay down the minimum requirements as regards the types and format of information in the standardised Meeting Notice to be transmitted, where necessary, along the chain of intermediaries to the shareholders. The aim is also to facilitate the handling of electronic voting instructions from shareholders to the issuer.
(7) This Regulation covers the different holding models for shares that exist across the Member States without favouring any particular one.
(8) The national law of the registered office of the issuer will determine which obligations concretely intermediaries need to comply with in order to facilitate the exercise of rights by the shareholders. These will include, where necessary, the obligation to confirm the entitlement of the shareholder to participate in a general meeting, and the obligation to transmit the notice of participation to the issuer. For that purpose, it is necessary to lay down minimum types of information to be included in such notice of participation.
(9) There is still a need to standardise the confirmation of entitlement to participate in a general meeting, as accurate information regarding the entitled positions may not be known to the issuer, or efficiently communicated to it, in particular because of cross-border communication. The confirmations of entitlement are communicated in divergent ways such as electronically through the chain of intermediaries, or directly by the last intermediary to the issuer, or by the last intermediary in paper or electronic format to the shareholder or client, depending on the securities holding model in the relevant market. This Regulation lays down minimum types of information to be included in confirmations or receipt of votes and the recording and counting of votes.
(10) A swift processing of transmissions within the chain of intermediaries, particularly when it consists of custodians or other operators in multiple layers and, when omnibus client accounts are used, is crucial in order to ensure that information reaches the shareholders cross-border, and that they can react within a reasonable time-frame and within the deadlines set by for corporate events by issuers and the intermediaries. To protect and balance out the reasonable interests of shareholders with those of the issuers and intermediaries, it is important to define the deadlines to be complied with in the transmission of information on corporate events and shareholder actions.
(11) As voluntary market standards for corporate actions processing comprising corporate events of a financial nature, such as distributions and corporate reorganisations affecting the underlying share, are for the most part applied, this Regulation only lays down the key elements and principles to be complied with in those processes.
(12) It is essential that trustworthy data is produced and that confidential data is transmitted securely. Intermediaries, issuers and issuers' service providers should have the appropriate processes in place to ensure in particular the integrity and security of those processes, which comprise personal data for the purposes defined in Directive 2007/36/EC.
(13) The measures provided for in this Regulation are in accordance with the opinion of the European Securities Committee.
HAS ADOPTED THIS REGULATION: