Einde inhoudsopgave
Cross-border Enforcement of Listed Companies' Duties to Inform (IVOR nr. 87) 2012/3.2
3.2 Legal obligation to publish a prospectus
mr.drs. T.M.C. Arons, datum 07-05-2012
- Datum
07-05-2012
- Auteur
mr.drs. T.M.C. Arons
- JCDI
JCDI:ADS370853:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Art. 1 PD 2003.
The Prospectus Directive is not applicable to units issued by collective investment undertakings other than the closed-end type (i.e. the open-end type) (Art. 1(2)(a) PD 2003/s. 52a Exemption Act regarding the Financial Supervision Act (Vrijstellingswet Fei). The Prospectus Directive is applicable to closed-end type units on the conditions that the units are transferable. Closed-end type units and open-end type units are subject to the obligation to publish a prospectus on the basis of s. 4:49 FSA. However, s. 4:49(6) FSA excludes the closed-end type transferable units. Open-end type units can be divided in the units for collective investment in undertakings ('UCITS') which are subject to European legislation and non-UCITS which are only subject to national legislation. Notice that Annex II of the UCPD refers to the obligation to publish a prospectus laid down in art. 1(9) of the UCITS Directive.
Art. 3(2) PD 2003 as amended by 1(3)(a)(1) PTAD 2010 /s. 5:3 FSA.
Art. 4 PD 2003/ss. 5:4 FSA.
Whether the misleading advertising rules are also applicable to the other private parties involved in the IPO will be discussed in subsequent paragraphs.
The unfair commercial practices rules are also applicable to the other private parties involved in the IPO if they qualify as a trader in the sense of s. 6:193a (1)(b) DCC. This will be discussed in section 3.5.
The Prospectus Directive 2003 harmonises the requirements for the drawing up, approval and distribution of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated markets situated or operating within one of the Member States of the European Union.1 The Prospectus Regulation 2004 lays down rules with respect to the format and publication of pro spectuses and the dissemination of advertisements with respect to the securities to be issued. Notice that investment funds are also subject to a legal duty to publish a prospectus.2
The legal duty for issuers on the EU securities market to publish a prospectus is laid down in article 3(1) of the Prospectus Directive. In the Netherlands, this obligation is implemented in section 5:2 of the Financial Services Act. The other provisions with respect to the publication of the prospectus are laid down in title 5.1 of the FSA. In accordance with the Prospectus Directive, the FSA provides exceptions3 to as well as exemptions4 from the obligation to publish a prospectus.
The aforementioned rules and regulations with respect to the obligation to publish a prospectus and the requirements with respect to its content, publication and approval have a public law nature. These rules primarily determine the legal relationship between the issuer of securities and the competent authority that has to approve the prospectus. However, as will be explained in section 2.6.1, these public law provisions influence the private law norms with respect to the publication and distribution of the prospectus.
The misleading advertisement rules are applicable to legal relationships between the issuer5 and investors that do not qualify as consumer. The unfair commercial practices rules determine the legal relationship between the issuer6 of the securities and the consumers that acquire these securities directly or indirectly on the basis of the prospectus.
The aforementioned public law exceptions to the obligation to publish a prospectus remove the public law enforcement with respect to the content of a prospectus in the event the issuer voluntarily publishes a prospectus as a marketing instrument for the securities on offer. In that case, the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten, AFM) has no authority to approve the prospectus. The private law enforcement through the rules of liability laid down in the unfair commercial practices rule of the DCC are, however, applicable to securities on offer, for example, with a denomination per unit of at least EUR 50,000.