Annex 1: Detailed outline

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1 Annex 1: Detailed outline Key issues Possible text for proposal for a directive/regulation Comments/Explanations on ongoing and periodic transparency requirements for issuers, and holders, of securities admitted to trading on a regulated market Section A: Purpose and scope of the measures, definitions Objectives 1. Purpose and scope: The purpose of this measure is to harmonise ongoing and periodic minimum disclosure requirements for issuers whose securities are admitted to trading on a regulated market situated or operating within a Member State, and for holders of such securities, in order to improve investor protection throughout the European Union. The proposed text would represent a new legal instrument that would thus replace important parts of the Directive 2001/34/EC. That Directive has, inter alia, codified (= without changing any substance) requirements laid down in Schedules C and D of Directive 79/279/EEC, in Directives 82/121/EEC and 88/627/EEC. The objective of this new instrument is to improve investor protection through higher disclosure standards applicable across all regulated markets (not only officially listed companies). Units issued by collective investment undertakings other than the close-end type are not affected by this initiative. This exemption for UCITS (currently provided for in Articles 2(2), 4(2) and 85(3) of Directive 2001/34/EC) takes account of specific disclosure standards provided for in the recently adopted UCITS Directives.

2 2 Extension of the scope (in particular extension to regulated markets) 2. Definitions The following definitions apply in this text: securities means any shares in companies and other transferable securities equivalent to shares in companies, bonds and other forms of securitised debt which are negotiable and any other transferable securities normally dealt in giving the right to acquire any such transferable securities by subscription or exchange or giving rise to cash settlement; regulated market means a market as defined by Article 1 (13) of Directive 93/22/EEC; The definition of securities is in line with the existing acquis (Article 1 (4) of Directive 93/22/EEC)) and the proposed Directive on prospectus (Article 2 (1) (a), see COM (2001) 280 final). Options and futures in their traditional shape under derivative contracts remain excluded. Not only securities admitted to official stock exchange listing, but also all equity and debt securities admitted to trading on a regulated market would be included. Thus, first tier and second tier markets would be covered. issuer means a legal entity who is governed by private or public law, and whose securities are admitted to trading on a regulated market; home Member State of an issuer should be defined in line with the acquis on disclosure of major holdings and on accounting (in particular the future IAS-Regulation). The definition covers issuers either incorporated in a Member State or in a third country, including sovereign issuers (but see also item 7). Point of references: (1) the acquis on major holdings (Article 96 of Directive 2001/34/EC); (2) Article 4 of the future IAS-Regulation, but also all company law directives at Community level. On implementing measures, please see item 22a

3 3 Section B: outlines basic disclosure obligations for issuers and holders of securities Basic disclosure requirements 3. The issuer s disclosure obligation The issuer discloses periodic information, as provided for in section C, and ongoing information, as provided for under section D1 and D2, to the public. Each investor has access to disclosed information free of charge, unless otherwise provided for in this text. It is important to clarify that it is in the first instance the security issuer who is the addressee of disclosure requirements under this text, and not sponsors, stock exchanges, or others. As a further new element, the issuer should not be allowed to organise disclosure and dissemination of information in form of a profit making activity to be paid by investors. In general, access to information should be free of charge, save for requested paper copies (see item 18). Basic disclosure requirements see also section 5.2 of the present 4. Filing information with the home Member State competent authority The issuer, or a third person duly authorised by the issuer, files any information to be disclosed, and indicates the means of disclosure, under the conditions provided for in this text, under requirements stricter than those provided for in this text, and under Article 6 of the future market abuse directive. All ongoing and periodic information should be filed with the home competent authority. This should enable the competent authority to at least oversee whether disclosure requirements are respected. However, it remains up to the national securities regulators to decide whether they wish to scrutiny the contents of the disclosure requested under this text. Thus, a central filing system via a single national regulator in each Member State would build on the recommendations made in the Lamfalussy Report. Such a system is already part of the prospectus proposal. Whatever distribution channels (see item 19) are in place or offered by the markets, investors should thus also be offered access to the filed information through the home competent authority. On possible implementing measures, see item 22b

4 4 Basic disclosure requirements 5. Scope of the disclosure obligation The issuer whose securities are traded on regulated markets situated or operating in one or more than one Member State ensures that all information disclosed to one of these regulated markets is disclosed to all the other regulated markets at the same time and on equal terms. The text builds on existing requirements for equities (Article 69 of Directive 2001/34/EC), corporate debt securities (Article 82) and sovereign debt securities (Article 84). However, the envisaged strengthened level of disclosure (in particular IAS, management report) would no longer be consistent with a reference to equivalent treatment that gives the issuer discretion over how to ensure transparency. Instead, it is envisaged to introduce an equal access-rule for the benefit for investors. As a result, the issuer would be required to justify any different treatment on objective grounds. In particular, different transparency rules on segments of a regulated market or on regulated markets in different Member States (even under stock exchange rules or contractual arrangements) should not result in more favourable treatment by an issuer to particular investors, but guarantee that the highest transparency standards required of an issuer in any regulated market are respected wherever the security is traded in the EU. The issuer whose securities are traded on regulated markets situated or operating in one or more Member States and in one or more third countries ensures that any additional information which it discloses to the regulated markets of any Member State or third country and which may be of importance for the investors is disclosed to the others at the equivalent time and on equivalent terms. The situation is different in the event of securities also traded in a third country. Equivalence should continue to prevail at two levels: equivalence between the rules applicable both in the third country and in the EU, but also on the means for disclosing and disseminating information. If an issuer, however, provides additional information at his discretion/by virtue of any rules going beyond Community law, he should do it vis-à-vis any investor regardless of location. In the context of third countries, the principle of equal access is not possible. Therefore, the text is based on already existing requirements for equity securities (Article 69 of Directive 2001/34/EC), corporate debt securities (Article 82) and sovereign debts (Article 84), aimed at equivalent treatment not only in the rules with third countries (see item), but also in the relationship between issuers and investors.

5 5 Save as otherwise provided, the issuer who discloses information shall ensure that such information remains available until disclosure of the next annual financial report to the public. Permanent access to disclosed information should allow investors to track back information at least until the next annual financial report. Annual financial reports, however, should be kept available for a longer period (see item 8). On possible implementing measures, see item 22 b

6 6 Basic disclosure requirements 6. Issuers incorporated in third countries Issuers incorporated in third countries should be subject to equivalent disclosure requirement in order to ensure the effective protection of investors. In principle, discrimination to the detriment of EU-issuers, and in favour of third country issuers should be avoided. However, important third countries (like the US) are already subject to some stricter disclosure rules. Equivalence should be assessed on a caseby-case basis. Such an approach should follow the same approach as the proposed Directive on a single prospectus (Article 18 of the proposal) and builds on Article 76 (4) of Directive 2001/34/EC. Basic disclosure requirements 7. Sovereign debts If a State, a regional or local authority of that State, public international bodies, the European Central Bank, or national central banks have issued securities, each investor shall have free and equal access to disclosed information. Items 4, 5, 6, 13, 14 letters d, h and j, 19 and 20 shall apply. Transparency requirements would be upgraded compared to Article 2 (2) of Directive 2001/34/EC in that a minimum set of requirements would become mandatory, such as equal treatment for debt security holders. Periodic reporting remains excluded because the future IAS Regulation will not be applicable to public bodies.

7 7 Section C: Periodic information Annual and interim reporting 8. Annual financial report Annual financial report The issuer discloses its annual financial report to the public as soon as possible, but at the latest three months after the expiry of each financial year. This text is based on Articles 67 and 80 of Directive 2001/34/EC, subject to the following changes reflecting the results of the previous : see section 3.1. of the present The published annual financial report remains available for at least three years as from the date of publication. a time limit of three months for disclosing the report is envisaged. This deadline is consistent with quarterly frequency for interim reporting. In addition, the existing Community listing particular rules only admit the same delay for previous annual report; a time limit of three years for keeping the report available. On possible implementing measures, see item 22 c and d

8 8 9. Contents of the annual financial report see section 3.1. of the present The annual financial report comprises the financial statements, accompanied by a report drawn up by the management, together with the audit report submitted by the person responsible for auditing the financial statements. The auditor s report, and any qualifications to this report, is reproduced in full. The financial statements should be the issuer s consolidated accounts in accordance with the future IAS Regulation, or its accounts for the financial year, where the issuer has no subsidiary. The contents of the annual financial report is mainly governed by other existing Community rules, such as on the mandatory application of International Accounting Standards, but also existing company law. The report which should accompany the financial statements is drawn up by the management, in accordance with Article 46 of the 4th Company Law Directive 78/660/EEC, or Article 36 of the 7th Company Law Directive 83/749/EEC, and should also indicate: a) the amount, the contents and the holders of special control rights, as well as representatives or proxies acting on behalf of such holders; In line with the recommendations made by the High Level Group of Company Law Experts in its report of 10 January 2002, specific disclosure requirements for security issuers would be envisaged. This overview is limited to securities. b) the person, or body, empowered to issue securities and the rules applicable to such person or body; c) a description of any employee securities scheme of the issuer and, if its control is exercised not by the employees, but on behalf of them, by another person, a description of the control system; d) shares, and rights to acquire shares, of personnel in managerial or supervisory posts of the issuer. On possible implementing measures, see item 22 c and d

9 9 Quarterly financial report for equity issuers see section of the present 10. Quarterly financial reports for equity issuers The issuer whose shares are admitted to trading on a regular market discloses a quarterly financial report to the public as soon as possible, but at the latest two months after the expiry of the three-month period covered. The quarterly financial report comprises the condensed set of financial statements accompanied by a management report for the three-month period covered. The components that the condensed set of financial statements include would be provided on the basis of the future IAS Regulation. The management report contains only the information referred to in Article 46 of the Fourth Company Law Directive 78/660/EEC, or Article 36 of the Seventh Company Law Directive 83/749/EEC. Half yearly reporting within four months (Articles 70 to 77 of Directive 2001/34/EC) would be replaced by quarterly reporting with a publication deadline of two months, the maximum time limit referred to in IAS 34. The contents of the interim financial statements are defined in accordance with future IAS Regulation (IAS 34). In addition, the conditions for the management report would not be minimum, but exclusive conditions. The forthcoming Commission proposal for amending the company law directives only seeks clarification of the information of management reports, but not its upgrading nor a reduction. Where the quarterly financial report has been reviewed by auditors, any such auditor s review report is reproduced in full. Member States would continue to be free to decide whether they wish to impose a limited review or fully audited report for certain interim reports. The issuer is exempted from publishing a quarterly financial report for the last quarter of a financial year where the annual financial report has been published within 2 months after the expiry of that financial year. This text would encourage issuers to provide an annual report earlier than the envisaged mandatory 3 months.

10 10 Quarterly figures for small issuers of equities see section of the present The issuer is exempted from disclosing a quarterly financial report if he is below two of the three following criteria in two consecutive financial years: balance sheet total of , net turnover of , or average number of employees during the financial year of 250. In such a case, the issuer should at least disclose, on a quarterly basis, to the public figures, presented in table form, indicating as a minimum the net turnover, the profit or loss before or after deduction of tax, and an explanatory statement relating to the issuer s activities and profits and losses during the relevant three-month period. Special provision for SMEs. The turnover threshold is taken from Articles 12 and 27 of the 4th company law Directive (as amended by Council Directive 1999/60/EC and limited to the annual turnover). As a result, small issuers of equities would be required to report at a quarterly basis what they currently report on a half-yearly basis in accordance with the Community acquis (article 73 of Directive 2001/34/EC). Please note that currently lots of Member States provide for more detailed and more complete half yearly reports. On possible implementing measures, see item 22 c) and d)

11 11 Half-yearly reports for debt security issuers whose shares are not admitted to trading on a regulated market See section of the present 11. Half-yearly financial reports for particular debt security issuers The issuer whose shares are not admitted to trading on a regular market discloses an interim financial report, hereinafter referred to as the half-yearly financial report, to the public without delay, but at the latest two months after the expiry of the relevant six-month period. The half-yearly financial report comprises the same information as required for quarterly financial reports, but for the six-month period covered. Debt security issuers will be required to follow IAS on the basis of the future IAS Regulation. Investors in debt securities need information in order to judge the ability of a debt security issuer to meet its commitment: in particular information from cash flow statements, balance sheets, and explanatory notes about off balance sheet elements. This would also facilitate the work of rating agencies and financial analysts in making an informed appraisal of the situation of an issuer. Nevertheless, quarterly figures seem less essential than in the case of equity issuers. Half-yearly reports would reflect the minimum standard recommended in paragraph 1 of IAS 34. The objective of ensuring an EU level playing field requires that equity issuers who also act as debt security issuers would be subject to quarterly reporting. It is felt that an exemption for SME s is in practice not necessary in the area of debt securities. On possible implementing measures, see item 22 c) and d)

12 12 Section D-1: Ongoing information enabling security holders to exercise their rights derived from those securities 12. Rights and treatment of shareholders Consolidation and corporate governance See section 4.2. of the present The issuer shall ensure equal treatment for all shareholders who are in the same position. The issuer shall ensure, at least in each Member State, in which its shares are admitted to trading on a regulated market, that all the facilities and information necessary to enable shareholders to exercise their rights are available. In particular, it should: a) provide information on the place, time and agenda of meetings, the total number of shares and voting rights, rights of shareholders to participate in meetings by electronic means at a distance, in accordance with Directive 1999/93/EC on a Community framework for electronic signatures, and enable shareholders to exercise their right to vote, The text is based on Article 65 of Directive 2001/34/EC and reflects the equal treatment principle which is not restricted to disclosure requirements as in the case of investors (see item 5). Letter a) could also facilitate online general meetings. Shareholders benefit from the safeguards on legal recognition of electronic signatures, as provided for in Directive 1999/93/EC (OJ No L 13 of ). However, future position of DG Internal Market will also depend on the Second Report of the High Level Group of Company Law Expert that is due by mid b) make available a proxy form with the notice concerning the meetings of shareholders to each person entitled to vote at the meeting; A requirement for proxy forms (see b) is introduced since shareholders should have the ability to delegate their voting rights to a third party entitled to vote at meetings. c) designate as its agent an investment firm within the meaning of Directive 93/22/EEC through which shareholders may exercise their rights, unless the issuer itself provides financial services; d) publish notices by electronic or other equivalent means, or distribute circulars concerning the allocation and payment of dividends, the issue of new shares including allotment, subscription, renunciation and conversion arrangements. In addition, the agent to be designated under c) could be an investment firm in any Member State (not only a financial institution as under the current text). Letter d) should also take into account the option of making information available on the Internet.

13 Rights and treatment of debt securities holders Consolidation and corporate governance See section 4.2. of the present The issuer ensures that all holders of debt securities ranking pari passu are given equal treatment in respect of all the rights attaching to those debt securities. Provided they are made in accordance with national law, this condition does not prevent offers of early repayment of certain debt securities being made to holders by an undertaking in derogation from the conditions of issue and in particular with social priorities. The issuer ensures that, at least in each Member State where its debt securities are admitted to trading on a regulated market, all the facilities and information necessary to enable holders to exercise their rights are available. In particular, it should: a) publish notices by electronic or other equivalent means, or distribute circulars concerning at least the place, time and agenda of meetings of holders of debt securities, the payment of interest, the exercise of any conversion, exchange, subscription or renunciation rights, and repayment, as well as of their rights to participate therein by electronic means at a distance, in accordance with Directive 1999/93/EC on a Community framework for electronic signatures; The text is based on Article 78 of Directive 2001/34/EC and reflects the equal treatment principle which is not limited to disclosure and transparency as in the case of investors (see item 5). Letter a) follows the approach already envisaged for shareholders (item 12). b) make available a proxy form with the notice concerning the meetings of holders of debt securities to each person entitled to vote at the meeting; c) designate as its agent an investment firm within the meaning of Directive 93/22/EEC through which holders of debt securities may exercise their rights, unless the issuer itself provides financial services.

14 14 Ongoing information and corporate governance See sections 4.1., 4.2. of the present 14. Additional information The issuer should inform the public without delay of a) any amendment to the instrument of incorporation or statutes. The issuer planning such an amendment shall communicate a draft thereof to the home Member State competent authority and to the regulated market to which the security is admitted without delay, but at the latest on the date of calling the general meeting which is to vote thereupon, or is to be informed about; b) any amendment to the rules applicable to the appointment, removal and the powers of personnel in managerial or supervisory bodies, including those for issuing securities; c) any amendment to the rules applicable to the holders of special control rights, and representatives or proxies acting on behalf of such holders; d) any amendment to the rules empowering a person, or body, to issue securities on behalf of the issuer; e) any amendment to the rules applicable to the control system of any employee securities scheme, if its control is exercised on behalf of them, by another person; f) any amendment to the rules applicable to shares, and rights to acquire shares, of personnel in managerial or supervisory posts of the issuer. g) any changes in the rights attaching to the various classes of shares, including those related to convertible or exchangeable debentures, or debentures with warrants; h) any changes in the rights of holders of debt securities resulting in particular from a change in loan terms or in interest rates; j) new loan issues and in particular of any guarantee or security in respect thereof. This text should ensure that capital markets have available, in accordance with the filing system proposed under item 5, capital market related information beyond both the general company law disclosure requirements (see Articles 2 c, d, 14, 19, 25 (2) of the 2 nd company law directive) and Article 6 of the future market abuse directive replacing the existing ad-hoc disclosure provisions (Articles 68 (1) and 81 (1) of Directive 2001/34/EC). Particular comments: Letter a) is based on Articles 66 and 79 of Directive 2001/34/EC. Letter b), c), d), e), f) reflect new aspects, as suggested by the High Level Group of Company Law Experts in its report of 10 January See also item 9 Letters g), h), j) are based on Articles 68 (2) and 81 (2), (3) and (4) of Directive 2001/34/EC).

15 15 Section D-2: Information on major holdings Ongoing information on major holdings See section 4.3. of the present 15. Information when a major holding is acquired or disposed of The natural person or legal entity notifies the issuer and at the same time the home Member State competent authority of the proportion of voting rights and of capital he holds, provided that a) the natural person or legal entity acquires or disposes of, directly or indirectly, a holding in an issuer whose shares are admitted to a regulated market; acquiring means not only purchasing a holding, but also acquiring by any other means whatsoever, and b) the acquisition or disposal leads to a change in the proportion of voting rights and of capital held by that natural person, or legal entity, in that the proportion reaches, exceeds or falls below one of the thresholds of 5%, 10%, 15%, 20%, 25%, 30%, a third, 50%, two thirds and 75%. Text based on Art. 85 (1), 86, 89 (1) of Directive 2001/34/EC. Following wishes expressed in the first, it is envisaged to lower the thresholds triggering a disclosure from 10% to 5% of voting rights and of capital, but also to advance in steps of 5% until 30%. Beyond the ceilings of 30%, investors have an interest to know whether changes in the proportion lead to blocking minorities or effective controls. Thirdly, information on the proportion of voting rights might currently differ from the proportion of capital. In future, information on both items could become mandatory for all Member States (Article 89 (2) of Directive 2001/34/EC leaves this to their discretion). Where the acquisition or disposal of a major holding as defined above is effected by means of certificates representing shares, the same obligations shall not apply to the issuers of those certificates, but to the bearers thereof. If the natural person, or legal entity, acquiring or disposing of a major holding is a member of a group of undertakings required under Directive 83/349/EEC to draw up consolidated accounts, that person or entity shall be exempted from the obligation to make the required notification if it is made by the parent undertaking. This text is based on Article 85 (2) of Directive 2001/34/EC. This text is based on Article 93 of Directive 2001/34/EC. On possible implementing measures, see item 22 e)

16 Determination of the voting rights Ongoing information on major holdings To determine whether a natural person/legal entity should make a notification, the following shall be regarded as voting rights held by that person or entity: a) voting rights held by other natural persons or legal entities in their own names but on behalf of that person or entity; The text is based on Article 92 of Directive 2001/34/EC. See section 4.3. of the present b) voting rights held by an undertaking controlled by that person or entity; c) voting rights held by a third party with whom that person or entity has concluded an effective agreement which obliges them to adopt, by concerted exercise of the voting rights they hold, a lasting common policy towards the management of the issuer in question, d) voting rights held by a third party under an effective agreement concluded with that person or entity or with an undertaking controlled by that person or entity providing for the temporary transfer for consideration of the voting rights in question, Letters c) and d) should not only cover written agreements, but all agreements. e) voting rights attaching to shares owned by that person or entity which are lodged as security, except where the person or entity holding the security controls the voting rights and declares his intention of exercising them, in which case they shall be regarded as the latter's voting rights, f) voting rights attaching to shares of which that person or entity has the life interest, g) voting rights which that person or entity or one of the other persons or entities mentioned in points (a) to (f) is entitled to sell or acquire, on his own initiative alone, under a formal agreement or on the basis of derivatives; h) voting rights attaching to shares deposited with that person or entity which that person or entity can exercise at its discretion in the absence of specific instructions from the holders. At present, letter g) only requires a notification at the point when the formal agreement is made. This should be aligned with the general time limit of 5 calendar days (see item 16). It should also cover calland put options to provide a more complete information on situations where investors can change the situation by a unilateral declaration.

17 17 A controlled undertaking means any undertaking in which a natural person or legal entity: a) has a majority of the shareholders or members voting rights; b) has the right to appoint or remove a majority of the members of the administrative, management or supervisory body and is at the same time a shareholder in, or member of, the undertaking in question; or c) is a shareholder or member and alone controls a majority of the shareholders or members voting rights pursuant to an agreement entered into with other shareholders or members of the undertaking. The text is based on Article 87 (1) of Directive 2001/34/EC. A parent undertaking s rights as regards voting, appointment and removal includes the rights of any other controlled undertaking and those of any natural person or legal entity acting in his own name, but on behalf of the parent undertaking or of any other controlled undertaking. The text is based on Article 87 (2) of Directive 2001/34/EC.

18 18 Ongoing information on major holdings See section 4.3. of the present 17. Contents, time limits and disclosure of the notifications The notification of the proportion of voting rights and of capital includes information on the actual change in the structure (shareholders and breakdowns of holdings) as compared with the previously disclosed proportion on that subject, on the date on which the acquisition or disposal will be effected, and is accompanied by a copy of the agreement on voting rights. A notification to the issuer, as well as to the home Member State competent authority, is effected within five calendar days The period shall commence at the point when the natural person or legal entity in its capacity as owner of the major holding learns of the acquisition or disposal, or from the time when, in view of the circumstances, he should have learned of it. The issuer who has received the notification referred to above must in turn disclose it to the public as soon as possible, but not more than five calendar days after the receipt of that notification.. Notification requirements are extended to cover full information on the entire structure on voting rights. The current periods are seven calendar days for the owner (Article 89 (1) of Directive 2001/34/EC); the issuer shall in turn disclose this information to the public at the latest within nine calendar days (Article 91 (1)). Disclosure to the public should take place in conformity with the general requirements under item 5. On possible implementing measures, see item 22 f) 18. Phasing in of new transparency requirements on major holdings Any natural person or legal entity notifies the issuer and at the same time the competent authority, on 31 December 2004 at the latest a) of the proportion of voting rights and of capital he holds, specifying the proportion of voting rights actually held unless that person or entity has already made a declaration in accordance with item 14; This text should allow phasing-in the new thresholds of 5%, 15%, and 30%, as well as new requirements on shareholder agreements. b) the contents of shareholder agreements referred to under item 16 and applicable after 31 December 2004.

19 19 Section E: Disseminating disclosed information to the public 19. Means for disclosing information to the public see also section 5.1 of the present The information referred to in sections B, C and D is considered to be disclosed to the public : a) by insertion in one or more newspapers distributed throughout or widely in the Member State in which the securities are admitted to trading on a regulated market, or b) by announcement of places where the information is available to the public to be published in one or more newspapers distributed throughout the Member State or widely distributed therein, or c) in electronic form on the web site of the issuer itself. On request, the issuer delivers a paper copy of the disclosed information. The price of such a copy should not exceed its administrative costs. This requirement should modernise Article 102 of Directive 2001/34/EC by adding a further basic means: publication in electronic form (letter c)), as already proposed under Article 12 of the proposed Directive on a single prospectus. It should be made clear that dissemination is a basic responsibility for the issuer. That said, issuers should continue to be able to make use of additional opportunities for disseminating information, such as services offered by stock exchanges, news agencies, or other third parties. see also section 5 of the present 20. Languages The information to be disclosed under this Directive should be drawn up in a language accepted by the home Member State. Where the security is traded on a regulated market in more than one Member State, the information is also be made available in a language customary in the sphere of finance. On possible implementing measures, see item 22 g) This requirement should modernise the existing language regime in Article 103 of Directive 2001/34/EC and facilitate cross-border investments in securities

20 20 Section F: Putting the Lamfalussy recommendations into practice Competent authorities 21. Competent authorities in the Member States and their powers Each Member State shall designate the same competent administrative authority as under the future Directive on a prospectus and inform the Commission thereof. The competent authority must have all the powers necessary for the performance of its functions and shall at least be empowered to: a) require issuers, and the persons that control them or are controlled by them to provide all the information which the authority considers necessary to protect investors or to ensure the smooth operation of the market; b) require issuers to disclose the information required under letter a) to the public by means and within time limits established. The authority may publish such information in the event of failure of the issuer to do so and after having given the opportunity to the issuer to make representations; c) carry out on site inspections; d) require auditors and managers to provide information the authority considers necessary; It was recommended to ensure that each Member State has a single competent authority responsible for initial, periodic and ongoing disclosure of information. Text based on Article 105 of Directive 2001/34/EC, but more explicit following the Lamfalussy Report endorsed by the European Council and the European Parliament. Letter a) is based on Article 16 of Directive 2001/34/EC. Letter b) is based on Article 17 of Directive 2001/34/EC. e) suspend, or request the relevant regulated market to suspend, the trading of securities for a maximum of 10 days if it has grounds for suspecting that the requirements under this text have been infringed or if, in its opinion, the issuer s situation is such that trading would be detrimental to investors interests; f) prohibit trading if it finds that the requirements under this text have been infringed; Letters c) to g) build on Article 19 of the proposed Directive on a single prospectus, except for letter e) that is essentially based on Article 18 of Directive 2001/34/EC. g) make public the fact that an issuer is failing to comply with its obligations.

21 21 New regulatory approach recommended see section 6 of the present 22. Implementing measures The Commission, assisted by the European Securities Committee, should adopt implementing measures which a) clarify and adapt definitions (see item 2) in order to take account of technical developments on financial markets and to ensure uniform application of this Directive; b) ensure uniform application of disclosure obligations, enforcement of filing obligations, and, if necessary, facilitate investors access to the information filed (see items 4, 5, 6); c) clarify and adapt the time limits for annual and interim reporting in order to take account of developments in financial markets (see items 8, 10 and 11); d) clarify and adapt the terminology, contents, and exemptions for subsidiaries wholly owned by issuers in respect of periodic reports in order to follow-up accounting and reporting standards amended under the future IAS Regulation as well as company law directives (see items 9, 10 and 11); e) may reduce the thresholds for disclosing ongoing information on major holdings (see item 15) to ensure a uniform disclosure in the European Union; or to add or delete further proportions of voting rights and capital to take account of developments in Community company law; f) adapt the contents and time limits for disclosing ongoing information on major holdings in order to take account of developments in Community or national law and to ensure uniform application of the Directive (see item 17); g) clarify and adapt the means for disclosing information to the public, add other equivalent means for disseminating disclosed information (see item 19). To meet the challenge of regulating modern financial markets and following the request in the Lamfalussy-Report, a split between essential principles (the so-called Level 1) and "non-essential" technical implementing measures (the so-called Level 2) is envisaged. Use of comitology procedure would be necessary to take account of developments in financial markets, on information technology, Community company law, and in accounting and reporting standards. Comitology should also ensure uniform application of this legislative text within the EU.

22 22 Section G: Final provisions 23. Penalties and right of appeal Competent authorities and sanctions The Member States should lay down the rules on penalties, including administrative sanctions, applicable to infringement of the national provisions adopted pursuant to this text, and shall take all measures necessary to ensure that they are implemented. The penalties and administrative sanctions provided for should be effective, proportionate and dissuasive. Member States should ensure that decisions taken under laws, directives and administrative provisions adopted in accordance with this Directive are properly justified and subject to the right to apply to the courts. This draft provision is similar to the one of the proposed Directive on prospectuses (Articles 23 and 24) and would replace existing provisions in Articles 17 and 19 of Directive 2001/34/EC. This text is common to all Internal Market Directives and reflects obligations for Member States already provided for under Article 10 of the EC Treaty. 24. Entry into force The entire text or national rules necessary to comply with this text should apply by 1 January The timetable for a new regulation or directive should be aligned to two target dates: - Implementation of the Financial Services Action Plan by 2005 as agreed at the summit of Lisbon in March 2000; - application of IAS standards as from 1 January 2005

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