Related provisions for BIPRU 12.7.9
Sections 87H and 87I of the Act provide:
Prospectus approved in another EEA State |
||||
87H |
(1) |
A prospectus approved by the competent authority of an EEA State other than the United Kingdom is not an approved prospectus for the purposes of section 85 unless that authority has notified ESMA and provided the competent authority with -3 |
||
(a) |
a certificate of approval; |
|||
(b) |
a copy of the prospectus as approved; and |
|||
(c) |
if requested by the [FCA], a translation of the summary of the prospectus. |
|||
(2) |
A document is not a certificate of approval unless it states that the prospectus - |
|||
(a) |
has been drawn up in accordance with the prospectus directive; and |
|||
(b) |
has been approved, in accordance with that directive, by the competent authority providing the certificate. |
|||
(3) |
A document is not a certificate of approval unless it states whether (and, if so, why) the competent authority providing it authorised, in accordance with the prospectus directive, the omission from the prospectus of information which would otherwise have been required to be included. |
|||
3(3A) |
The competent authority must publish on its website a list of certificates of approval provided to it in accordance with this section. |
|||
3(3B) |
The list referred to in subsection (3A) must - |
|||
(a) |
be kept up-to-date; |
|||
(b) |
retain items on it for a period of at least 12 months; and |
|||
(c) |
include hyperlinks to any certificate of approval and prospectus published on the website of - |
|||
(i) |
the competent authority of the EEA State which provided the certificate; |
|||
(ii) |
the issuer; or |
|||
(iii) |
the regulated market where admission to trading is sought. |
|||
(4) |
"Prospectus" includes a supplementary prospectus. |
Provision of information to host Member State |
|||
87I |
(1) |
The [FCA] must, if requested to do so, supply the competent authority of a specified EEA State with – |
|
(a) |
a certificate of approval; |
||
(b) |
a copy of the specified prospectus (as approved by the [FCA]); and |
||
(c) |
a translation of the summary of the specified prospectus (if the request states that one has been requested by the other competent authority).2 |
||
(1A)2 |
If the competent authority supplies a certificate of approval to the competent authority of the specified EEA State, it must also supply a copy of that certificate to - |
||
(a) |
the person who made the request under this section; and |
||
(b) |
ESMA. |
||
(2) |
Only the following may make a request under this section – |
||
(a) |
the issuer of the transferable securities to which the specified prospectus relates; |
||
(b) |
a person who wishes to offer the transferable securities to which the specified prospectus relates to the public in an EEA State other than (or as well as) the United Kingdom; |
||
(c) |
a person requesting the admission of the transferable securities to which the specified prospectus relates to a regulated market situated or operating in an EEA State other than (or as well as) the United Kingdom. |
||
(3) |
A certificate of approval must state that the prospectus – |
||
(a) |
has been drawn up in accordance with this Part and the prospectus directive; and |
||
(b) |
has been approved, in accordance with those provisions, by the [FCA]. |
||
(4) |
A certificate of approval must state whether (and, if so, why) the [FCA] authorised, in accordance with section 87B, the omission from the prospectus of information which would otherwise have been required to be included. |
||
(5) |
The [FCA] must comply with a request under this section – |
||
(a) |
if the prospectus has been approved before the request is made, within 3 working days beginning with the date the request is received2; or 2 |
||
(b) |
if the request is submitted with an application for the approval of the prospectus, on the first working day after the date on which it approves the prospectus. |
||
(6) |
“Prospectus” includes a supplementary prospectus. |
||
(7) |
“Specified” means specified in a request made for the purposes of this section. |
This table belongs to BIPRU 3.7.1 R
[Note: BCD Annex II]
Category |
Item |
Percentage |
Full risk |
Guarantees having the character of credit substitutes Credit derivatives Acceptances Endorsements on bills not bearing the name of another credit institution Transactions with recourse Irrevocable standby letters of credit having the character of credit substitutes Assets purchased under outright forward purchase agreements Forward deposits The unpaid portion of partly-paid shares and securities Asset sale and repurchase agreements as defined in Article 12(3) and (5) of the Bank Accounts Directive Other items also carrying full risk |
100% |
Medium risk |
Documentary credits issued and confirmed (see also medium/low risk). Warranties and indemnities (including tender, performance, customs and tax bonds) and guarantees not having the character of credit substitutes. Irrevocable standby letters of credit not having the character of credit substitutes. Undrawn credit facilities (agreements to lend, purchase securities, provide guarantees or acceptance facilities) with an original maturity of more than one year. Note issuance facilities (NIFs) and revolving underwriting facilities (RUFs). |
50% |
Medium/low risk |
Documentary credits in which underlying shipment acts as collateral and other self-liquidating transactions. Undrawn credit facilities (agreements to lend, purchase securities, provide guarantees or acceptance facilities) with an original maturity of up to and including one year which may not be cancelled unconditionally at any time without notice or that do not effectively provide for automatic cancellation due to deterioration in a borrower's creditworthiness. |
20% |
Low risk |
Undrawn credit facilities (agreements to lend, purchase securities, provide guarantees or acceptance facilities) which may be cancelled unconditionally at any time without notice, or that do effectively provide for automatic cancellation due to deterioration in a borrower's creditworthiness. Retail credit lines may be considered as unconditionally cancellable if the terms permit the firm to cancel them to the full extent allowable under consumer protection and related legislation. |
0% |
Schedule to the Recognition Requirements Regulations, Paragraph 9A
1(1) |
[A UK RIE] operating a multilateral trading facility must also operate a regulated market. |
|||
(2) |
[A UK RIE] operating a multilateral trading facility must comply with those requirements of- |
|||
(a) |
Chapter I of Title II of [MiFID], and |
|||
(b) |
||||
which are applicable to a market operator ... operating such a facility. |
||||
(3) |
The requirements of this paragraph do not apply for the purposes of section 292(3)(a) of the Act (requirements for overseas investment exchanges and overseas clearing houses). |
1Note: The following definitions relevant to the prospectus rules are extracted from the Glossary.
Act |
||||
admission to trading |
admission to trading on a regulated market. |
|||
advertisement |
(as defined in the PD Regulation) announcements: |
|||
(1) |
relating to a specific offer to the public of securities or to an admission to trading on a regulated market; and |
|||
(2) |
aiming to specifically promote the potential subscription or acquisition of securities.4 |
|||
applicant |
an applicant for approval of a prospectus or supplementary prospectus relating to transferable securities. |
|||
asset backed security |
(as defined in the PD Regulation) securities which: |
|||
(1) |
represent an interest in assets, including any rights intended to assure servicing, or the receipt or timeliness of receipts by holders of assets of amounts payable thereunder; or |
|||
(2) |
are secured by assets and the terms of which provide for payments which relate to payments or reasonable projections of payments calculated by reference to identified or identifiable assets. |
|||
base prospectus |
a base prospectus referred to in PR 2.2.7 R. |
|||
body corporate |
(in accordance with section 417(1) of the Act (Definitions) any body corporate, including a body corporate constituted under the law of a country or territory outside the United Kingdom; |
|||
building block |
(as defined in the PD Regulation) a list of additional information requirements, not included in one of the schedules, to be added to one or more schedules, as the case may be, depending on the type of instrument and/or transaction for which a prospectus or base prospectus is drawn up.4 |
|||
collective investment undertaking other than the closed-end type |
(in PR) (as defined in Article 2.1(o) of the prospectus directive) unit trusts and investment companies: |
|||
(1) |
the object of which is the collective investment of capital provided by the public, and which operate on the principle of risk-spreading; |
|||
(2) |
the units of which are, at the holder's request, repurchased or redeemed, directly or indirectly, out of the assets of these undertakings.4 |
|||
any body corporate. |
||||
Consolidated Admissions and Reporting Directive |
Directive 2001/34/EC of the European Parliament and of the Council on the admission of securities to official stock exchange listing and on information to be published on those securities. |
|||
credit institution |
as defined in article 4(1)(1) of the 7EUCRR.7 77 |
|||
director |
(in accordance with section 417(1)(a) of the Act) a person occupying in relation to it the position of a director (by whatever name called) and, in relation to an issuer which is not a body corporate, a person with corresponding powers and duties. |
|||
EEA State |
(in accordance with paragraph 8 of Schedule 3 to the Act (EEA Passport Rights)) a State which is a contracting party to the agreement on the European Economic Area signed at Oporto on 2 May 1992, as it has effect for the time being; as at 1 May 2004, the following are the EEA States: Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, the Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom. |
|||
equity security |
(as defined in Article 2.1(b) of the prospectus directive) shares and other transferable securities equivalent to shares in companies, as well as any other type of transferable securities giving the right to acquire any of the aforementioned securities as a consequence of their being converted or the rights conferred by them being exercised, provided that securities of the latter type are issued by the issuer of the underlying shares or by an entity belonging to the group of the said issuer. |
|||
equity share |
shares comprised in a company'sequity share capital. |
|||
equity share capital |
(for a company), its issued share capital excluding any part of that capital which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution. |
|||
6ESMA recommendations |
the recommendations for the consistent implementation of the European Commission’s Regulation on Prospectuses No 809/2004 published by the European Securities and Markets Authority (ESMA/2011/81). |
|||
executive procedures |
the procedures relating to the giving of warning notices, decision notices and supervisory notices that are described in DEPP 4 (Decision by FCA staff under executive procedures)2. 22 |
|||
FCA |
the Financial Conduct Authority. |
|||
guarantee |
(as defined in the PD Regulation) any arrangement intended to ensure that any obligation material to the issue will be duly serviced, whether in the form of guarantee, surety, keep well agreement, mono-line insurance policy or other equivalent commitment. |
|||
guarantor |
||||
Home State or Home Member State |
(as defined in section 102C of the Act) in relation to an issuer of transferable securities, the EEA State which is the "home Member State" for the purposes of the prospectus directive (which is to be determined in accordance with Article 2.1(m) of that directive). |
|||
Host State or Host Member State |
(as defined in Article 2.1(n) of the prospectus directive) the EEA State where an offer to the public is made or admission to trading is sought, when different from the home State. |
|||
issuer |
(as defined in section 102A of the Act) a legal person who issues or proposes to issue the transferable securities in question.4 |
|||
(in PR) (as defined in section 87A(9) and (10) of the Act) the information which is essential to enable investors to understand the transferable securities to which the prospectus relates and decide whether to consider the offer further. The key information must include: |
||||
(a) |
the essential characteristics of, and risks associated with, the issuer and any guarantor, including their assets, liabilities and financial positions; |
|||
(b) |
the essential characteristics of, and risks associated with, investment in the transferable securities, including any rights attaching to the securities; |
|||
(c) |
the general terms of the offer, including an estimate of the expenses charged to an investor by the issuer and the offeror, if not the issuer; |
|||
(d) |
details of the admission to trading; and |
|||
(e) |
the reasons for the offer and proposed use of the proceeds. |
|||
(a) |
a body corporate incorporated under the Limited Liability Partnerships Act 2000; |
|||
(b) |
a body corporate incorporated under legislation having the equivalent effect to the Limited Liability Partnerships Act 2000. |
|||
The European Parliament and Council Directive on markets in financial instruments (No. 2004/39/EC). See also MiFID Regulation and MiFID implementing Directive.3 |
||||
non-equity transferable securities |
(as defined in section 102A of the Act) all transferable securities that are not equity securities. |
|||
Note: In the prospectus directive and the PD Regulation, the Commission uses the term "non-equity securities" rather than "non-equity transferable securities". |
||||
offer |
||||
offer of transferable securities to the public |
(as defined in section 102B of the Act), in summary: |
|||
(a) |
a communication to any person which presents sufficient information on:
to enable an investor to decide to buy or subscribe for the securities in question; |
|||
(b) |
which is made in any form or by any means; |
|||
(c) |
including the placing of securities through a financial intermediary; |
|||
(d) |
but not including a communication in connection with trading on:
|
|||
Note: This is only a summary, to see the full text of the definition, readers should consult section 102B of the Act. |
||||
offering programme |
(as defined in Article 2.1(k) of the prospectus directive) a plan which would permit the issuance of non-equity securities, including warrants in any form, having a similar type and/or class, in a continuous or repeated manner during a specified issuing period. |
|||
offeror |
a person who makes an offer of transferable securities to the public. |
|||
(in relation to a body corporate) (as defined in section 400(5) of the Act (Offences by bodies corporate etc)) a director, member of the committee of management, chief executive, manager, secretary, or other similar officer of the body, or a person purporting to act in that capacity or a controller of the body. |
||||
overseas company |
a company incorporated outside the United Kingdom. |
|||
Part 6 rules |
(in accordance with section 73A(1) of the Act), rules made for the purposes of Part 6 of the Act. |
|||
5partnership |
(in accordance with section 417(1) of the Act (Definitions)) any partnership, including a partnership constituted under the law of a country or territory outside the United Kingdom, but not including a limited liability partnership. |
|||
PD |
||||
PD Regulation |
Regulation number 809/2004 of the European Commission. |
|||
person |
(in accordance with the Interpretation Act 1978) any person, including a body of persons corporate or unincorporated that is, a natural person, a legal person and, for example, a partnership). |
|||
PR |
the Prospectus Rules sourcebook. |
|||
profit estimate |
(as defined in the PD Regulation) a profit forecast for a financial period which has expired and for which results have not yet been published. |
|||
profit forecast |
(as defined in the PD Regulation) a form of words which expressly states or by implication indicates a figure or a minimum or maximum figure for the likely level of profits or losses for the current financial period and/or financial periods subsequent to that period, or contains data from which a calculation of such a figure for future profits or losses may be made, even if no particular figure is mentioned and the word "profit" is not used. |
|||
property collective investment undertaking |
(as defined in the PD Regulation) a collective investment undertaking whose investment objective is the participation in the holding of property in the long term. |
|||
prospectus |
a prospectus required under the prospectus directive. |
|||
prospectus directive |
the Directive 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 (No 2003/71/EC). |
|||
Prospectus Rules |
(as defined in section 73A(4) of the Act) rules expressed to relate to transferable securities. |
|||
Public international body |
(as defined in the PD Regulation) a legal entity of public nature established by an international treaty between sovereign States and of which one or more Member States are members. |
|||
qualified investor |
(as defined in section 86(7) of the Act) in relation to an offer of transferable securities:4 |
|||
(a) |
a person or entity described in points (1) to (4) of Section I of Annex II to MiFID, other than a person who, before the making of the offer, has agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with MiFID; or4 4 |
|||
(b) |
a person who has made a request to one or more relevant firms to be treated as a professional client in accordance with Section II of Annex II to MiFID and has not subsequently, but before the making of the offer, agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II of MiFID; or4 4 |
|||
(c) |
a person who is recognised as an eligible counterparty in accordance with article 24 of MiFID and has not, before the making of the offer, agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II of MiFID; or4 4 |
|||
(d) |
a person whom any relevant firm is authorised to continue to treat as a professional client in accordance with article 71(6) of MiFID.4 |
|||
registration document |
a registration document referred to in PR 2.2.2 R. |
|||
regulated information |
(as defined in the PD Regulation) all information which the issuer, or any person who has applied for the admission of securities to trading on a regulated market without the issuer’s consent, is required to disclose under Directive 2001/34/EC or under Article 6 of Directive 2003/6/EC.3 |
|||
regulated market |
a multilateral system operated and/or managed by a market operator, which brings together or facilitates the bringing together of multiple third-party buying and selling interests in financial instruments in the system and in accordance with its non-discretionary rules in a way that results in a contract, in respect of the financial instruments admitted to trading under its rules and/or systems, and which is authorised and functions regularly and in accordance with the provisions of Title III of MiFID.3 |
|||
RIS |
||||
risk factors |
(as defined in the PD Regulation) a list of risks which are specific to the situation of the issuer and/or the securities and which are material for taking investment decisions. |
|||
rule |
(in accordance with section 417(1) of the Act (Definitions)) a rule made by the FCA under the Act. |
|||
schedule |
(as defined in the PD Regulation) a list of minimum information requirements adapted to the particular nature of the different types of issuers and/or the different securities involved. |
|||
securities issued in a continuous and repeated manner |
(as defined in Article 2.1(l) of the prospectus directive) issues on tap or at least two separate issues of securities of a similar type and/or class over a period of 12 months. |
|||
securities note |
a securities note referred to in PR 2.2.2 R. |
|||
small and medium-sized enterprise |
(as defined in Article 2.1(f) of the prospectus directive) companies, which, according to their last annual or consolidated accounts, meet at least two of the following three criteria: an average number of employees during the financial year of less than 250, a total balance sheet not exceeding €43,000,000 and an annual net turnover not exceeding €50,000,000. |
|||
special purpose vehicle |
(as defined in the PD Regulation) an issuer whose objects and purposes are primarily the issue of securities. |
|||
statutory notice associated decision |
a decision which is made by the FCA and which is associated with a decision to give a statutory notice, including a decision: |
|||
statutory notice decision |
a decision by the FCA on whether or not to give a statutory notice. |
|||
(a) |
to determine or extend the period for making representations; |
|||
(b) |
to determine whether a copy of the statutory notice needs to be given to any third party and the period for him to make representations; |
|||
(c) |
to refuse access to FCA material; |
|||
(d) |
as to the information which it is appropriate to publish about the matter to which a final notice or an effective supervisory notice relates. |
|||
summary |
(in relation to a prospectus) the summary included in the prospectus. |
|||
supplementary prospectus |
a supplementary prospectus containing details of a new factor, mistake or inaccuracy. |
|||
transferable security |
(as defined in section 102A of the Act) anything which is a transferable security for the purposes of MiFID3, other than money-market instruments for the purposes of that directive which have a maturity of less than 12 months. 3 |
|||
Note: In the prospectus directive and PD regulation, the Commission uses the term "security" rather than "transferable security". |
||||
umbrella collective investment scheme |
(as defined in the PD Regulation) a collective investment undertaking invested in one or more collective investment undertakings, the asset of which is composed of separate class(es) or designation(s) of securities. |
|||
United Kingdom |
England and Wales, Scotland and Northern Ireland (but not the Channel Islands or the Isle of Man). |
|||
units of a collective investment scheme |
(as defined in Article 2.1(p) of the prospectus directive) securities issued by a collective investment undertaking as representing the rights of the participants in such an undertaking over its assets. |
|||
working day |
(as defined in section 103 of the Act) any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom. |