Securities: prospectus to be published when offered to the public or admitted to trading: implementing powers conferred on the Commission

PURPOSE: to amend Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading, by introducing a reference to the new regulatory procedure with scrutiny (comitology).

LEGISLATIVE ACT: Directive 2008/11/EC of the European Parliament and of the Council amending Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading, as regards the implementing powers conferred on the Commission.

CONTENT: Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission (comitology) has been amended by Council Decision 2006/512/EC (CNS/2002/0298).

The amended Decision introduces a new regulatory procedure with scrutinyto be used for measures of general scope which seek to amend non-essential elements of a basic instrument, adopted under the co-decision procedure, including by deleting some of those elements or by supplementing the instrument by the addition of new non-essential elements.

This procedure allows the legislator to oppose the adoption of "quasi-legislative" measures implementing a codecision-based instrument in cases where:

• the draft exceeds the implementing powers provided for in the basic instrument,
• the draft is incompatible with the aim or the content of that instrument,
• it fails to respect the principles of subsidiarity or proportionality.

In a joint statement, the three institutions agreed on a list of 26 basic instruments already in force to be adjusted without delay in accordance with the new regulatory procedure with scrutiny (see ACI/2006/2152). Each case has been assessed on its own merits, notably in view of the nature of the implementing powers conferred on the Commission and the specificity of each sector.

The purpose of this Directive, therefore, is to amend Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading, by introducing a reference to the new regulatory procedure with scrutiny.

By 31 December 2010, and thereafter at least every three years, the Commission shall review the provisions concerning its implementing powers and present a report to the European Parliament and to the Council on the functioning of those powers and on the need for the Commission to propose possible amendments.

ENTRY INTO FORCE: 20 March 2008.