ESMA publishes final reports on amendments to the Prospectus Regulation and Civil Prospectus Liability

The European Securities and Markets Authority (“ESMA”), the EU’s financial markets regulator and supervisor, has today released its final reports on the Prospectus Regulation and on civil prospectus liability. The reports set out recommendations designed to support capital markets activity by streamlining regulatory requirements.

Prospectus Regulation

As part of its efforts to enhance access to the capital markets, the European Commission adopted a legislative package – commonly referred to as the ‘Listing Act’ – to simplify the listing requirements to promote better access to public capital markets for EU companies, in particular SMEs, by reducing the administrative burden on companies that seek a listing or want to remain listed on a trading venue.

To this end, ESMA has, on the request of the European Commission, published its final report setting out inter alia proposed amendments to (1) Commission Delegated Regulation (EU) 2019/980 and (2) Commission Delegated Regulation (EU) 2019/979¹.

The most relevant amendments for issuers and advisers will be the amendments to Commission Delegated Regulation (EU) 2019/980 (“CDR 980”) which set out, amongst other things, the relevant disclosure requirements (annexes) to be complied with when drafting a prospectus.

A clean version of the updated CDR 980 is available here. Unfortunately, the markup provided by ESMA is not very helpful, as it does not show all the proposed changes to the CDR. It only reflects the additional changes that ESMA is proposing since the publication of its initial consultation paper on 28

October 2024, which itself included a markup of the earlier proposed updates to CDR 980. It would be helpful if ESMA could publish a consolidated markup showing all proposed changes to CDR 980 to allow for a clearer understanding of the full set of amendments.

Although ESMA has submitted its final report to the European Commission, it is not immediately clear to us when the proposed amendments to the CDR will enter into force.

Civil Prospectus Liability

Under the Prospectus Regulation, the European Commission is required to assess whether further harmonisation of the provisions across the European Union on prospectus liability is warranted. If so, the European Commission is to consider amendments to the liability provisions set out in article 11 of the Prospectus Regulation.

On this basis, on 6 June 2024, the European Commission mandated ESMA to provide technical advice on civil liability regarding the information given in prospectuses to include an assessment and recommendations on whether further harmonisation should be considered.

The European Commission further asked ESMA to compare the civil liability provisions in article 11 of the Prospectus Regulation with those set out in the Markets in Crypto Assets Regulation (MiCAR) and to assess the need for possible alignment with or departure from those provisions.

To this end, ESMA’s final report setting out the technical advice on civil prospectus liability includes:

a summary of feedback to ESMA’s call for evidence on civil prospectus liability, where many respondents consider the current framework to be sufficiently balanced and argue that no changes are required at present – this includes a section of civil liability in Malta;

ESMA’s resulting recommendations; and

an update of the relevant sections of ESMA’s 2013 report on prospectus liability addressing civil prospectus liability. The 2013 report can be accessed here. The updated 2025 report can be accessed here.

The European Commission is required to present a report to the European Parliament and the Council by 31 December 2025. This report will assess the current regime for prospectus liability and consider whether further harmonisation at EU level may be appropriate.

^[1] Commission Delegated Regulation (EU) 2019/979 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council with regard to regulatory technical standards on key financial information in the summary of a prospectus, the publication and classification of prospectuses, advertisements for securities, supplements to a prospectus, and the notification portal, and repealing Commission Delegated Regulation (EU) No 382/2014 and Commission Delegated Regulation (EU) 2016/301.