PR 3.1 Approval of prospectus
Prospectus review process
7Articles 2, 3 and 4 of Commission Delegated Regulation (EU) 2016/301 provide that:
7Article 2 Submission of an application for approval |
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1. |
The issuer, offeror or person asking for admission to trading on a regulated market shall submit all drafts of the prospectus in searchable electronic format via electronic means to the competent authority. A contact point to which the competent authority can submit all notifications in writing, via electronic means, shall be specified at the time the first draft of the prospectus is submitted. |
2. |
Along with the first draft of the prospectus submitted to the competent authority, or during the prospectus review process, the issuer, offeror or person asking for admission to trading on a regulated market shall also submit in searchable electronic format (a) where required by the competent authority of the home Member State according to Article 25(4) of Regulation (EC) No 809/2004 or on their own initiative, a cross reference list which shall also identify any items from Annexes I to XXX to Regulation (EC) No 809/2004 that have not been included in the prospectus because, due to the nature of the issuer, offeror or person asking for admission to trading or the securities being offered to the public or admitted to trading, they were not applicable. … (b) where the issuer, offeror or person asking for admission to trading on a regulated market is requesting that the competent authority of the home Member State authorise the omission of information from the prospectus pursuant to Article 8(2) of Directive 2003/71/EC, a reasoned request to that effect; (c) where the issuer, offeror or person asking for admission to trading on a regulated market requests that the competent authority of the home Member State notify the competent authority of a host Member State, upon approval of the prospectus, with a certificate of approval pursuant to Article 18(1) of Directive 2003/71/EC, a request to this effect; (d) any information which is incorporated by reference into the prospectus, unless such information has already been approved by or filed with the same competent authority in accordance with Article 11 of Directive 2003/71/EC; (e) any other information considered necessary, on reasonable grounds, for the review by the competent authority of the home Member State and expressly required by the competent authority for that purpose. |
Article 3 Changes to the draft prospectus |
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1. |
Following submission of the first draft of the prospectus to the competent authority of the home Member State, where the issuer, offeror or person asking for admission to trading on a regulated market submits subsequent drafts of the prospectus, the subsequent drafts shall be marked to highlight all changes made to the preceding unmarked draft of the prospectus as submitted to the competent authority. Where only limited changes are made, marked extracts of the draft prospectus, showing all changes from the preceding draft, shall be considered acceptable. An unmarked draft of the prospectus shall always be submitted along with the draft highlighting all changes. Where the issuer, offeror or person asking for admission to trading on a regulated market is unable to comply with the requirement set out in the first subparagraph due to technical difficulties related to the marking of the prospectus, each change made to the preceding draft of the prospectus shall be identified to the competent authority of the home Member State in writing. |
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Where the competent authority of the home Member State has, in accordance with Article 5(2) of this Regulation, notified the issuer, offeror or person asking for admission to trading on a regulated market that it considers that the draft prospectus does not meet the requirement of completeness, including consistency of the information given and its comprehensibility, the subsequently submitted draft of the prospectus shall be accompanied by an explanation as to how the incompleteness notified by the competent authority has been addressed. Where changes made to a previously submitted draft prospectus are self-explanatory or clearly address the incompleteness notified by the competent authority, an indication of where the incompleteness has been addressed shall be considered sufficient. |
Article 4 Final submission |
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1. |
With the exception of the cross reference list mentioned in Article 2(2)(a), submission for approval of the final draft of the prospectus shall be accompanied by any information mentioned in Article 2(2) which has changed since a previous submission. The final draft of the prospectus shall not be annotated in the margin. |
2. |
Where no changes have been made to the previously submitted information mentioned in Article 2(2), the issuer, offeror or person asking for admission to trading on a regulated market shall confirm in writing that no changes have been made to the previously submitted information. |
Applying for approval
7If the order of disclosure items in the prospectus does not coincide with the order set out in the schedules and building blocks in the PD Regulation, an applicant must provide the FCA with a cross reference list identifying the pages where each disclosure item can be found in the prospectus.
[Note: Articles 25(4) and 26(3) of the PD Regulation and article 2(2) of Commission Delegated Regulation (EU) 2016/301]
6An applicant must take all reasonable care to ensure that any prospectus submitted for approval, for which it is responsible, contains:
- (1)
the necessary information as required under section 87A of the Act; and
- (2)
the information items required in Annexes I to XVII and Annexes XX to XXX of the PD Regulation7, as appropriate to its application.
6An applicant must take all reasonable care to ensure that any prospectus submitted for approval for which it is responsible is, to the best of its knowledge, in accordance with the facts and contains no omission likely to affect its import.
Timeframe for submission
- (1)
The applicant must submit to the FCA by the date specified in paragraph (2):
- (a)
- (b)
the relevant fee; and
7[Note: FEES 3 sets out the relevant fee payable to the FCA.]
- (c)
7the first draft of the prospectus (accompanied, where relevant, by the additional information set out in article 2(2) of Commission Delegated Regulation (EU) 2016/301).
7[Note: Extracts of article 2 of Commission Delegated Regulation (EU) 2016/301 are reproduced for the convenience of readers in PR 3.1.-1EU.]
- (2)
The date referred to in paragraph (1) is:
- (a)
at least 10 working days before the intended approval date of the prospectus; or
- (b)
at least 20 working days before the intended approval date of the prospectus if the applicant does not have transferable securities admitted to trading7 and has not previously made an offer; or
- (c)
as soon as practicable in the case of a supplementary prospectus.
- (a)
- (3)
The applicant must submit the final version of the draft prospectus and the additional information set out in Article 4 of Commission Delegated Regulation (EU) 2016/301 7to the FCA before midday on the day on which approval is required to be granted.
7[Note: Article 4 of Commission Delegated Regulation (EU) 2016/301 is reproduced for the convenience of readers in PR 3.1.-1EU.]
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Copy of resolution to be kept3
3An applicant must keep a copy of the board resolution allotting or issuing the transferable securities for six years after the application for approval of the prospectus for those securities.
Request for certificate of approval
If an applicant wishes the FCA to provide a certificate of approval to another competent authority at the time the prospectus is approved, it should note the requirements set out in PR 3.1.-1EU and 7(PR 5.3.2R. As provided by article 18(1) of the PD, a request may still be submitted to the FCA after the prospectus has been approved (PR 5.3.2R7 sets out the requirements for such a request).
Approval of prospectus
Section 87A(1) of the Act provides for the approval of a prospectus by the FCA:
7[Note: Section 87C of the Act sets out time limits for the FCA to notify an applicant of its decision on an application for approval.]
(1) |
The [FCA] may not approve a prospectus unless it is satisfied that: |
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(a) |
the United Kingdom is the home State in relation to the issuer of the transferable securities to which it relates, |
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(b) |
the prospectus contains the necessary information, and |
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(c) |
all of the other requirements imposed by or in accordance with this Part or the prospectus directive have been complied with (so far as those requirements apply to a prospectus for the transferable securities in question). |
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7Article 5(2) and (4) of Commission Delegated Regulation (EU) 2016/301 provide that:
7… |
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2. |
Where the competent authority of the home Member State considers, on reasonable grounds, that the documents submitted to it are incomplete or that supplementary information is needed, for instance due to inconsistencies or incomprehensibility of certain information provided, it shall notify the issuer, offeror or person asking for admission to trading of the need for supplementary information and the reasons therefor, in writing, via electronic means. |
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4. |
Where the issuer, offeror or person asking for admission to trading on a regulated market is unable or unwilling to provide the supplementary information requested in accordance with paragraph 2, the competent authority of the home Member State shall be entitled to refuse the approval of the prospectus and terminate the review process. |
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Decision-making procedures
The FCA will follow the executive procedures for statutory notice decisions and statutory notice associated decisions if it:
- (1)
proposes to refuse to approve a prospectus; or
- (2)
decides to refuse to approve a prospectus after having given the applicant a written notice.
Note: DEPP 44 sets out the executive procedures for statutory notice decisions and statutory notice associated decisions.
4Prospectus not to be published until approved
A prospectus must not be published until it has been approved by the FCA. [ Note: article 13.1 PD ]
Prospectus comprising separate documents
If the prospectus is not a single document but is comprised of separate documents:
- (1)
an application for approval may relate to one or more of those separate documents; and
- (2)
a reference in this section to a prospectus is, unless the context otherwise requires, to be taken to be a reference to the document or documents to which the application relates.
Transfer to another competent authority
- (1)
A person seeking to have the function of approving a prospectus transferred to the competent authority of another EEA State must make a written request to the FCA at least 10 working days before the date the transfer is sought.
- (2)
The request must:
- (a)
set out the reasons for the proposed transfer;
- (b)
state the name of the competent authority to whom the transfer is sought; and
- (c)
include a copy of the draft prospectus.
- (a)
The FCA will consider transferring the function of approving a prospectus to the competent authority of another EEA State:
Vetting of equivalent documents
A person who wishes the FCA to vet an equivalent document referred to in PR 1.2.2 R (2) or (3) or PR 1.2.3R (3) or (4) must submit to the FCA:
- (1)
a copy of the document;
- (2)
a cross reference list identifying the pages in the document where each item that is equivalent to the disclosure requirements for a prospectus may be found;
- (3)
contact details of individuals who are:
- (a)
sufficiently knowledgeable about the documentation to be able to answer queries from the FCA; and
- (b)
available to answer queries between the hours of 7 a.m. and 6 p.m.; and
- (a)
- (4)
any other information that the FCA may require.
The person must submit the documents referred to in PR 3.1.14 R at least ten working days before the date on which it wishes the vetting to be completed or at least 20 working days before that date if the person does not have transferable securities admitted to trading and has not previously made an offer3.
Service of Notice Regulations
7Regulation 7 of The Financial Services and Markets Act 2000 (Service of Notice Regulations) 2001 (SI 2001/1420) contains provisions relating to the possible methods of serving documents on the FCA. Regulation 7 does not apply to the submission of a draft prospectus or listing particulars to the FCA for approval because of the provisions set out in PR 3.1.-1EU.