Compliance with ESMA Guidelines on disclosure requirements pursuant to the Prospectus Regulation (Consob Warning notice no. 5/21 of 29 April 2021)

Consob Warning notice no. 5/21 of 29 April 2021

Subject: Compliance with ESMA Guidelines on disclosure requirements pursuant to the Prospectus Regulation

On 15 July 2020, the European Securities and Markets Authority (ESMA) published, pursuant to Article No 16, paragraph 1, of Regulation (EU) No 2010/1095 (ESMA regulation), the final report on the feedback from the public consultation concerning its draft Guidelines on disclosure requirements pursuant to the Prospectus Regulation[1] (ESMA/31-62-1426).

On 4 March 2021, ESMA published the translation into the official EU languages of the same Guidelines. The aforementioned final report and the translation into Italian of these ESMA Guidelines (ESMA 32-382-1138) are also available on the CONSOB website http://www.consob.it/web/area-pubblica/prodotti-orientamenti-esma.

The Guidelines apply from 5 May 2021 and they are addressed to competent authorities under the Prospectus Regulation and to market participants, including persons responsible for a prospectus.

The Guidelines update the previous CESR Recommendations (ESMA/2013/319, in the revised version of 20 March 2013) with the exception of those concerning specialist issuers referred to in Annex No 29 of the Delegated Regulation (EU) 2019/980, which have not been converted into Guidelines and still remain applicable[2].

Therefore, starting from 5 May 2021, the references made by previous CONSOB communications to the aforementioned CESR Recommendations on the prospectus are consequently replaced with the aforementioned ESMA Guidelines, including the references in Communication No DEM/6064293 dated 28 July 2006 concerning the net financial position.

The purpose of the Guidelines is to establish uniform, efficient and effective supervisory practices among competent authorities when assessing the completeness, comprehensibility and consistency of the information contained in the prospectuses, as well as to ensure the common, uniform and consistent application of the disclosure requirements established by the Delegated Regulation (EU) 2019/980.

In accordance with Article No 16, paragraph 3, of the ESMA regulation, competent authorities and financial market participants must make every effort to comply with the ESMA Guidelines. CONSOB complies with these Guidelines by incorporating them into its supervisory practices and by monitoring that the issuers and other persons responsible for the preparation of the prospectus comply with them, being able, where necessary, to exercise the powers provided for by Article No 114, paragraph 5, of the Consolidated Law on Finance (TUF).

Since the prospectuses approved by CONSOB, starting from 5 May 2021, must comply with the ESMA Guidelines, the attention of financial market participants is drawn to the need that the draft prospectus submitted for CONSOB's approval be in accordance with these Guidelines.

For further evidence, the scope and terms of application of the Guidelines are summarized below.

Persons required to comply

The Guidelines apply to:

- the competent authorities, as defined in the Prospectus Regulation and

- market participants, including persons responsible for a prospectus, pursuant to Article No 11, paragraph 1, of the Prospectus Regulation.

Purpose

The Guidelines are aimed at helping market participants to comply with the disclosure obligations established in the Delegated Regulation (EU) 2019/980 and to encourage a more uniform interpretation of the annexes of this regulation throughout the Union.

Application

The Guidelines are applicable from 5 May 2021.

THE PRESIDENT

Paolo Savona


[1] Regulation (EU) 1129/2017.

[2] The CESR Recommendations were partly updated by ESMA, most recently in 2013; see ESMA update of the CESR recommendations for the consistent implementation of the Commission Regulation (EC) No 809/2004, ESMA/2013/319|20 March 2013. In the Statement published on 30 September 2020 (available on the CONSOB website at: http://www.consob.it/web/area-pubblica/prodotti-orientamenti-esma ), ESMA highlighted the parts of the aforementioned CESR recommendations that still remain applicable. The main changes made by the ESMA Guidelines in question to the aforementioned CESR Recommendations are analyzed in the "Annex I: Cost-benefit analysis" of the document ESMA 31-62-1426 of 15 July 2020: Final Report ESMA Guidelines on disclosure requirements under the Prospectus Regulation (available on the CONSOB website at: http://www.consob.it/web/area-pubblica/prodotti-orientamenti-esma).