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New Guidelines on Disclosure Requirements under the Prospectus Regulation

On 20 April 2021, the Luxembourg Commission de Surveillance du Secteur Financier (CSSF) issued Circular CSSF 21/771 whereby it informs market participants that it will apply starting from 5 May 2021 the Guidelines of the European Securities and Markets Authority on disclosure requirements under the Prospectus Regulation [1] (the "ESMA Guidelines").

The objectives of the ESMA Guidelines are to establish consistent, efficient and effective supervisory practices among competent authorities when assessing the completeness, comprehensibility and consistency of information in prospectuses as well as to ensure the common, uniform and consistent application of the disclosure requirements set out in the Prospectus Delegated Regulation [2].

The ESMA Guidelines cover the information required to be disclosed under the annexes to the Prospectus Delegated Regulation. Such annexes address the content of a prospectus to be published under the Prospectus Regulation. The ESMA Guidelines update and replace the recommendations of the Committee of European Securities Regulators which had applied since January 2005 (the "CESR Recommendations"). The ESMA Guidelines are similar in content to the CESR Recommendations, with some differences however, notably the fact that they do not contain certain CESR recommendations which relate to information no longer required to be published under the Prospectus Regulation or which will be addressed by ESMA in different guidelines.

It is also notable that ESMA now encourages ESG disclosures in the operating and financial review section of a prospectus.

Other key points addressed in the ESMA Guidelines are the content of the capital resources section, the profit forecasts and estimates section, the historical financial information section, the pro forma financial information section (where there are significant changes in relation to the aggregation of transactions for the purposes of preparing pro forma financial information).

For further information and/or advice on capital markets issues, feel free to contact our Capital Markets, Securities Law and Regulation team at:

Alex Schmitt, Partner

Nicolas Widung, Partner

Françoise Pfeiffer, Senior Counsel

This publication is for general guidance only and does not constitute definitive legal advice.

[1] Regulation (EU) 2017/1129 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market.

[2] Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the format, content, scrutiny and approval of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market.

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