(1)

As part of the Listing Act initiative, which aims to make public capital markets in the Union more attractive for companies and to facilitate access to capital for small and medium-sized enterprises (SMEs), Regulation (EU) 2024/2809 of the European Parliament and of the Council (2) introduced two new types of short-form prospectuses aiming to reduce costs and burdens for issuers: the EU Growth issuance prospectus, mainly designed for SMEs and companies listed or to be listed on SME growth markets, and the EU Follow-on prospectus, for secondary issuances of securities by companies already listed on a regulated market or an SME growth market. Those new prospectuses are to be submitted to the European Securities and Markets Authority (ESMA) and published through the storage mechanism referred to in Article 21(6) of Regulation (EU) 2017/1129. Accordingly, the list of the machine-readable data that competent authorities provide to ESMA, laid down in Annex VII to Commission Delegated Regulation (EU) 2019/979 (3), should be updated to include those prospectuses.

(2)

Pursuant to Article 14 of Regulation (EU) 2023/2631 of the European Parliament and of the Council (4) issuers that issue bonds to be designated as European Green Bonds (‘EuGBs’) are to publish a prospectus in accordance with Regulation (EU) 2017/1129. Such prospectuses are to be included in the storage mechanism referred to in Article 21(6) of Regulation (EU) 2017/1129. It is therefore appropriate to require competent authorities to provide ESMA with machine-readable data indicating (i) which securities qualify as EuGBs or as securitisation bonds, as defined in Article 2(22) of Regulation (EU) 2023/2631, when designated as EuGBs; and (ii) which securities qualify as bonds marketed as environmentally sustainable, as defined in Article 2, point (5) of that Regulation, or as sustainability-linked bonds as defined in Article 2, point (6), of that Regulation where the issuers of those bonds make voluntary disclosures pursuant to Article 20 of that Regulation. The list of metadata laid down in Annex VII to Delegated Regulation (EU) 2019/979 should be updated accordingly.

(3)

Regulation (EU) 2024/2809 introduced a requirement for issuers to file with their competent authorities the exemption documents referred to in Article 1(4), first subparagraph, points (da) and (db), and Article 1(5), first subparagraph, point (ba), of Regulation (EU) 2017/1129, as amended by Regulation (EU) 2024/2809. It also introduced a requirement for ESMA to include in its yearly report prepared in accordance with Article 47(1) of Regulation (EU) 2017/1129 an analysis and statistics in relation to the extent to which such exemptions are used throughout the Union. To minimise the burden on competent authorities, they should be able to submit those documents to ESMA via the storage mechanism referred to in Article 21(6) of Regulation (EU) 2017/1129. That submission should include the metadata that enables ESMA to prepare such statistics. Delegated Regulation (EU) 2019/979 should therefore be updated to reflect those changes, including the list of metadata set out in Annex VII to that Delegated Regulation.

(4)

Article 21a of Regulation (EU) 2017/1129 requires competent authorities to build, to the extent possible, on the mechanisms implemented for the purposes of Article 25(6) of that Regulation for making the information referred to in Article 21a(1) thereof accessible on the European Single Access Point (ESAP). To minimise the compliance burden on both competent authorities and issuers, the obligation to make the information referred to in Article 21a(1) of Regulation (EU) 2017/1129 accessible on ESAP may be fulfilled by making such information available to ESMA via the notification portal referred to in Article 25(6) of that Regulation. The notification portal is to be used to submit the information referred to in Article 21(1) of Regulation (EU) 2017/1129 in accordance with Article 21(5) of that Regulation and any additional information required by Article 21a thereof that is not currently in the scope of the storage mechanism referred to in Article 21(6) of Regulation (EU) 2017/1129, accompanied by the relevant metadata. Delegated Regulation (EU) 2019/979 should be updated to reflect those changes.

(5)

Further amendments to the submissible machine-readable data are necessary to address minor issues identified by ESMA. Those amendments concern an addition of a new data field and changes to the information to be included in data fields. The list of metadata laid down in Annex VII to Delegated Regulation (EU) 2019/979 should be updated accordingly.

(6)

A reference to Directive 2003/71/EC of the European Parliament and of the Council (5) was removed from Article 19(1), point (a), of Regulation (EU) 2017/1129. As a result of that change, it was no longer possible to incorporate by reference documents which have been approved by a competent authority, or filed with it in accordance with Directive 2003/71/EC. That impacted fungible issuances of non-equity securities that were originally offered to the public or admitted to trading on a regulated market under Directive 2003/71/EC, since the terms and conditions of those securities were normally incorporated by reference into the prospectus approved under Regulation (EU) 2017/1129. To avoid increasing issuers’ administrative burden, it is necessary to lay down a list of additional documents that may be incorporated by reference into prospectuses, beyond those listed in Article 19(1) of Regulation (EU) 2017/1129. That would make it possible to include documents which have been approved by a competent authority, or filed with it, in accordance with Directive 2003/71/EC, so as to maintain the pre-existing requirements and avoid duplication of information that has already been disclosed and published under other Union law.

(7)

Regulation (EU) 2023/2631 introduced optional sustainable disclosure templates for bonds marketed as environmentally sustainable and for sustainability-linked bonds to facilitate comparison and address greenwashing. To incentivise issuers to use those optional pre-issuance disclosure templates, it is necessary to add them to the list of additional documents that may be incorporated by reference into prospectuses. That would reduce the costs associated with drawing up the additional disclosures on the ESG-related aspects of securities and help minimising burdens for issuers drawing up a prospectus, in line with the objectives to reduce the regulatory burden and costs for companies, especially for SMEs and small mid-caps, associated with the listing process.

(8)

This Regulation is based on the draft regulatory technical standards submitted to the Commission by ESMA. ESMA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (6). ESMA did not conduct a separate open public consultation and analysis in relation to the draft regulatory technical standards on the incorporation by reference of additional documents into prospectuses, considering it disproportionately burdensome, given the limited scope and impact of the proposed changes. In relation to the incorporation by reference of optional pre-issuance disclosure documents under Regulation (EU) 2023/2631, ESMA gathered feedback from stakeholders in its Consultation Paper on draft technical advice concerning the Prospectus Regulation and on updating the CDR on metadata (7) with most stakeholders supporting the proposal by ESMA.

(9)

To minimise the burden on competent authorities and on issuers, the date of application of this Regulation should be aligned with the date of application of the requirements laid down in Article 21a of Regulation (EU) 2017/1129. That alignment is to enable the use of the notification portal established in Article 25(6) of Regulation (EU) 2017/1129 to ensure that the information specified in Article 21a(1) of that Regulation is accessible on ESAP.

(10)

The provisions laid down in this Regulation are substantively linked to each other, as they amend the same Delegated Regulation and mostly relate to the new types of prospectuses or the nature of information included therein, either on mandatory or on voluntary basis, resulting from the amendments introduced by Regulation (EU) 2024/2809,

(1)

The following Articles 11a and 11b are inserted:

(2)

Article 12 is replaced by the following:

(3)

the following Chapter VIa is inserted:

‘CHAPTER VIa

DOCUMENTS FOR INCORPORATION BY REFERENCE INTO A PROSPECTUS AS REFERRED TO IN ARTICLE 19 OF REGULATION (EU) 2017/1129

(*1)  Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ L 345, 31.12.2003, p. 64, ELI: http://data.europa.eu/eli/dir/2003/71/oj)."

(*2)  Regulation (EU) 2023/2631 of the European Parliament and of the Council of 22 November 2023 on European Green Bonds and optional disclosures for bonds marketed as environmentally sustainable and for sustainability-linked bonds (OJ L, 2023/2631, 30.11.2023, ELI: http://data.europa.eu/eli/reg/2023/2631/oj).’;"

()  Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ L 345, 31.12.2003, p. 64, ELI: http://data.europa.eu/eli/dir/2003/71/oj).

()  Regulation (EU) 2023/2631 of the European Parliament and of the Council of 22 November 2023 on European Green Bonds and optional disclosures for bonds marketed as environmentally sustainable and for sustainability-linked bonds (OJ L, 2023/2631, 30.11.2023, ELI: http://data.europa.eu/eli/reg/2023/2631/oj).’;

(4)

Annex VII is replaced by the Annex to this Regulation.