In the working instructions below, BaFin addresses the most urgent questions regarding the application of the new prospectus law. These questions are addressed and resolved in the form of FAQs. The answers provided here are BaFin’s responses to both the questions being asked on the market regarding the application of the legislation and the questions BaFin deems particularly urgent from the viewpoint of its administrative practice. BaFin’s administrative practice is based on these working instructions.

On 28 May 2019, BaFin also conducted a workshop with external participants regarding the EU Prospectus Regulation. The presentation documents from this BaFin workshop are available on the BaFin website.

I. Grandfathering provision in Article 46(3) of the EU Prospectus Regulation

1. What does the grandfathering provision under Article 46(3) of the EU Prospectus Regulation stipulate?

One of the key provisions governing the preparation for the new EU Prospectus Regulation is the grandfathering provision in Article 46(3). It stipulates that prospectuses approved before 21 July 2019 will continue to be governed by the previous national law (in the version applicable until 20 July 2019) until the end of their validity, or until twelve months have elapsed after 21 July 2019.

2. What impact does the grandfathering provision have on

a) prospectuses that were drawn up and submitted for approval before 21 July 2019 under the law applicable up to that point, but were not yet approved by such date?

Prospectuses that were drawn up and submitted to BaFin for scrutiny in accordance with the legal requirements applicable until 20 July 2019, but were not approved before the 21 July 2019 deadline, must afterwards be adapted to the new law in accordance with the EU Prospectus Regulation. In its first notices of hearing after the deadline, BaFin will point out the changes in the legal situation and instruct the applicant to revise the prospectus accordingly. Thereafter, the notices of hearing will reference specific points under the EU Prospectus Regulation and its delegated acts. Issuers who have not yet submitted their prospectuses can no longer expect approval to be granted before 21 July 2019.

b) supplements to prospectuses that were approved before 21 July 2019?

Supplements to prospectuses that were approved before 21 July 2019 must still be drawn up and submitted under the previous law (in the version applicable until 20 July 2019). This is due to the fact that under Article 46(3) of the EU Prospectus Regulation, prospectuses approved in accordance with the previous law are to be governed by that previous law until the end of their validity, or until twelve months have elapsed after 21 July 2019 (whichever occurs first). Consequently, supplements to these prospectuses must also be drawn up and scrutinised in accordance with the previous law (see also Q&A 1.4 of ESMA’s Questions and Answers on the Prospectus Regulation, version 1 of 27 March 2019 – ESMA/2019/ESMA31-62-1258).

c) final terms for base prospectuses that were approved before 21 July 2019?

Final terms for base prospectuses approved before 21 July 2019 must still be drawn up and submitted in accordance with the previous law (in the version applicable until 20 July 2019). This is due to the fact that under Article 46(3) of the EU Prospectus Regulation, prospectuses approved in accordance with the previous law are to be governed by that previous law until the end of their validity, or until twelve months have elapsed after 21 July 2019 (whichever occurs first). Consequently, final terms filed for these prospectuses must also be drawn up and examined in accordance with the previous law (see also Q&A 1.5 of ESMA’s Questions and Answers on the Prospectus Regulation, version 1 of 27 March 2019 – ESMA/2019/ESMA31-62-1258).

d) registration documents that were approved before 21 July 2019?

Registration documents approved in accordance with the previous law (in the version applicable until 20 July 2019) cannot be combined with securities notes and summaries that are approved after 21 July 2019. Likewise, supplements to these registration documents cannot be submitted under the previous law. It is possible to incorporate information from registration documents under the previous law into registration documents or prospectuses under the new law; adaptations and additions may be necessary, however, in order to align the overall presentation of the information with the new law (see also Q&A 1.2 of ESMA’s Questions and Answers on the Prospectus Regulation, version 1 of 27 March 2019 – ESMA/2019/ESMA31-62-1258).

e) advertisements?

Advertising activity carried out after the deadline is governed by the new law. There is no grandfathering provision in place that would make it possible to continue with advertisements designed under the previous law (in the version applicable until 20 July 2019). The EU Prospectus Regulation and the date on which it becomes fully applicable have long been known to the public; there are thus no other grandfathering provisions (see also Q&A 1.1 of ESMA’s Questions and Answers on the Prospectus Regulation, version 1 of 27 March 2019 – ESMA/2019/ESMA31-62-1258).

f) notification?

If a prospectus is approved prior to the 21 July 2019 deadline and then notified afterwards, the notification falls under the previous law (see also Q&A 1.3 of ESMA’s Questions and Answers on the Prospectus Regulation, version 1 of 27 March 2019 – ESMA/2019/ESMA31-62-1258).

g) What are the technical implications of the grandfathering provision?

For a transitional period of twelve months after 21 July 2019, BaFin continues to provide certain functions of the portal of its reporting and publishing platform (MVP Portal) that users need in order to continue to file supplements and final terms for prospectuses that were approved before 21 July 2019. BaFin will make special information sheets available in this regard.

3. When can applicants begin using the MVP Portal to submit prospectuses under the new law, and when will prospectuses start to be scrutinised under the new law?

A securities prospectus cannot be approved under the new law before 21 July 2019 since the EU Prospectus Regulation only becomes fully applicable on 21 July 2019. Therefore, a securities prospectus drawn up in accordance with the new law should only be submitted, if at all, in consultation with the relevant BaFin division responsible for scrutinising securities prospectuses (WA 52 or WA 53) and, even then, only shortly before 21 July 2019. There is no entitlement to have a prospectus scrutinised under the new law before 21 July 2019. BaFin recommends contacting the divisions responsible (WA 52 and WA 53) if it is planned to submit a securities prospectus under the new law before 21 July 2019.

• BaFin will give priority to scrutinising prospectuses that have been drawn up under the previous law and are to be approved before 21 July 2019.
• For prospectuses drawn up under the new law that are submitted before 21 July 2019, the metadata required for classifying prospectuses under the regulatory technical standards must be submitted in accordance with the new law retroactively after 21 July 2019.

II. Continuation of offers to the public after a base prospectus has expired

1. Does the EU Prospectus Regulation also allow the continuation of offers to the public after a base prospectus has expired?

The continuation of offers to the public after a base prospectus has expired is currently governed by Q&A 98 of ESMA’s Questions and Answers, Prospectuses, 30th updated version, April 2019” – ESMA31-62-780. Starting with the applicability of the EU Prospectus Regulation on 21 July 2019, the continuation of offers to the public after a base prospectus has expired is governed by Article 8(11) of the EU Prospectus Regulation.

The requirements for the continuation of offers to the public under Article 8(11) of the EU Prospectus Regulation are as follows:

• The succeeding base prospectus must be approved and published before the previous base prospectus has expired;
• the final terms of such an offer must contain a prominent warning on their first page, indicating the last day of validity of the previous base prospectus and where the succeeding base prospectus will be published;
• the succeeding base prospectus must include the form of the final terms from the initial base prospectus or
• this form must be incorporated by reference and
• the succeeding base prospectus must refer to the final terms that are relevant for the continuing offer.

2. What does Article 8(11) of the EU Prospectus Regulation mean by “refer to the final terms that are relevant for the continuing offer”?

In accordance with the practices described in ESMA Q&A 98 (“ESMA Questions and Answers, Prospectuses, 30th updated version, April 2019” – ESMA31-62-780), it is still possible after the effective date for the succeeding base prospectus to include a list of the ISINs of all the securities for which the offer to the public is to be continued. Alternatively, the succeeding base prospectus can then also refer to a list that it does not contain.

However, this requires the following:

• The succeeding base prospectus must specify the exact location of the list;
• the list must specify all the final terms relevant to the continuing offer, indicating the respective ISIN and
• a list of the relevant ISINs must be sent to BaFin directly before the approval of the succeeding prospectus at the latest.

3. If an offer began with a base prospectus approved before 21 July 2019, how can it be continued with a succeeding base prospectus that was submitted for approval after 20 July 2019?

In accordance with Article 8(11) of the EU Prospectus Regulation, the succeeding base prospectus must include the form for the final terms from the initial base prospectus, or this form must be incorporated by reference (see above). In BaFin’s view, the form for the final terms from the initial base prospectus drawn up under the previous law must comply with the requirements of the EU Prospectus Regulation at the time the succeeding base prospectus is approved after 20 July 2019. This may require some adaptations in light of the modifications which the EU Prospectus Regulation requires for final terms. For example, Article 8(5) of the EU Prospectus Regulation stipulates that the final terms must contain new statements. These statements must already be contained in the form for the final terms. If the forms for the final terms of the initial base prospectus do not meet the requirements of the EU Prospectus Regulation, the form for the final terms from the initial base prospectus cannot simply be incorporated into the succeeding base prospectus after 20 July 2019, nor can this form simply be incorporated by reference. In these cases, the form must be adapted to meet the requirements of the EU Prospectus Regulation. Accordingly in these cases, the final terms that were filed with the initial base prospectus under the previous law do not meet the requirements of the EU Prospectus Regulation. BaFin deems it necessary that in the cases where offers are to be continued, all the corresponding final terms hitherto filed should be adapted to the new law (e.g. “individual” summary) and be refiled on a one-off basis.

III. Supplement requirement under the EU Prospectus Regulation

1. Now that “material inaccuracy” is listed as requiring a supplement, does this constitute an additional reason to submit a supplement and/or has it increased the scope of the supplement requirement?

The new type of supplement called “material inaccuracy” in Article 23(1) of the EU Prospectus Regulation does not (on the full applicability of the EU Prospectus Regulation from 21 July 2019) constitute an expansion of the previous grounds requiring a supplement. Even Article 16(1) of Directive 2003/71/EC provided for cases of material inaccuracies. In the course of the transposition of this directive, the “material inaccuracy” was incorporated into section 16 (1) of the German Securities Prospectus Act (Wertpapierprospektgesetz – WpPG) within the element called the “material mistake”. The fact that the “material inaccuracy” is now mentioned explicitly in the text of the EU Prospectus Regulation therefore does not constitute an expansion of the scope of the supplement requirement.

2. If securities are purchased or subscribed through a financial intermediary or directly from the issuer, is the financial intermediary or issuer required to inform investors of any supplements to prospectuses approved before 21 July 2019 or to inform them of rights to withdraw acceptances under Article 23(3) of the EU Prospectus Regulation?

No. Under the grandfathering provision in Article 46(3) of the EU Prospectus Regulation, the provisions of Article 23(3) of the EU Prospectus Regulation do not apply to supplements relating to a prospectus approved before 21 July 2019.

3. After a registration document or a universal registration document has been approved and/or filed and before it is notified, is it possible to supplement it by submitting an appendix under Article 26(4) of the EU Prospectus Regulation?

As a rule, the appendix must be submitted to BaFin before the registration document or universal registration document is approved. The applicant should consider before approval whether notification is planned; for practical reasons, however, applicants have the option to add an appendix under Article 26(4) of the EU Prospectus Regulation to a registration document or universal registration document after approval and/or filing and before notification. This appendix must then be submitted to BaFin – in the case of registration documents, as a supplement within the meaning of Article 23 of the EU Prospectus Regulation, and in the case of universal registration documents, as an amendment within the meaning of Article 9(7) sentence 1 of the EU Prospectus Regulation. It must be approved by BaFin in order to be notified.

IV. New legal concepts in the EU Prospectus Regulation

1. What is a universal registration document (URD) and who can make use of it? What is the difference between the previous registration documents and the new universal registration documents?

Upon full applicability of the EU Prospectus Regulation on 21 July 2019, the new universal registration document is introduced. This is a new, multifunctional registration document. It can be used by issuers whose securities are admitted to trading on a regulated market or on a multilateral trading facility (MTF). The difference between the previous registration documents and the new universal registration documents is that the universal registration document can be filed without BaFin’s prior approval. However, the universal registration document must have been submitted for approval and approved for two consecutive financial years in the past. If the universal registration document is not filed in the following year, the condition for filing without needing prior approval no longer applies. With a universal registration document, an issuer can gain frequent issuer status and (provided additional requirements are met) benefit from an accelerated approval process. If the issuer decides to use the universal registration document as an integral part of a prospectus, the universal registration document already filed must be approved by BaFin retrospectively. The legal provisions regarding the universal registration document are found in Article 9 of the EU Prospectus Regulation.

2. What is the EU Growth prospectus and who can make use of it?

Upon full applicability of the EU Prospectus Regulation on 21 July 2019, the EU Growth prospectus replaces the provisions of Article 26b of Regulation (EC) No 809/2004, including the proportionate schedules for small and medium-sized enterprises (SMEs) and companies with reduced market capitalisation (Annexes XXV to XXVIII of Regulation (EC) No 809/2004). The key characteristics of the EU Growth prospectus are reduced content, a shortened summary and a standardised format. Unlike the previous SME regime, the EU Growth prospectus cannot be used for admission to the regulated market; it is also only available to those issuers who have no securities admitted to trading on a regulated market.

The EU Growth prospectus includes a special summary on the basis of Article 7 of the EU Prospectus Regulation, a special registration document and a special securities note. Provisions regarding the EU Growth prospectus are found in Article 15 of the EU Prospectus Regulation.

3. What is the simplified disclosure regime for secondary issuances and who can make use of it?

Article 14 (applicable from 21 July 2019) of the EU Prospectus Regulation provides for less stringent prospectus requirements, for example for those securities that have already been admitted to a regulated market or an SME growth market for a certain period of time. This simplified disclosure in the prospectus is justified by the subsequent transparency requirements that apply to these securities.

Subparagraph 1(a) to (c) of Article 14(1) of the EU Prospectus Regulation lays down exact specifications regarding the persons entitled to benefit from the prospectus privileges. All three case groups make reference to securities having been admitted to trading on a regulated market or on an SME growth market continuously for at least the last 18 months. Provisions regarding the simplified disclosure requirement for secondary issuances are found in Article 14 of the EU Prospectus Regulation.

V. Risk factors under Article 16 of the EU Prospectus Regulation

1. Does BaFin intend to apply ESMA’s “Guidelines on risk factors under the Prospectus Regulation” of 29 March 2019 (ESMA31-62-1217)?

Yes, in the course of the EU Prospectus Regulation’s applicability, BaFin plans to apply ESMA’s “Guidelines on risk factors under the Prospectus Regulation of 29 March 2019” (ESMA31-62-1217) as part of its prospectus scrutiny procedure.

2. Must the categories of risk factors as described in subparagraph 4 sentence 1 of Article 16(1) of the EU Prospectus Regulation have headings?

These categories should be given headings that indicate what type of risk factors are being described in the category concerned. The headings must be clearly recognisable as such by the use of spacing and bold print. The categories should be meaningfully structured, concentrating similar risk factors under the same heading.

3. Must all the risks listed within one category in accordance with subparagraph 4 of Article 16(1) of the EU Prospectus Regulation be listed in the order of their materiality?

No. The provision in subparagraph 4 sentence 2 of Article 16(1) of the EU Prospectus Regulation, requiring the most material risk factors to be mentioned first, does not require all the risks within one category to be listed in the order of their materiality. It is sufficient to mention only the most material (i.e. as a rule, at least the two most material) risks of a category first. It is left to the discretion of the entity drawing up the prospectus whether two or, if applicable, even more or all the risks within a category are listed in such an order. If the issuer is unable to differentiate beyond the most material risk factor in an individual case, explanations must be given for this during the approval process.
In any case, for the sake of comprehensibility, the prospectus must distinctly indicate which of the risks the entity drawing up the prospectus deems to be the most material in the respective categories.

4. Does the ordered listing of risk factors under subparagraph 4 sentence 2 of Article 16(1) of the EU Prospectus Regulation (or a further listing of all risk factors within one category) in itself fulfil the requirement to indicate the materiality of the risk factors?

No. If such an ordered listing in itself generally fulfilled the requirement to describe the materiality of the risk factors, the specifications under subparagraph 3 of Article 16(1) of the EU Prospectus Regulation would be superfluous. The order within the categories does not replace the description of the materiality but serves as the framework and foundation for such description.

5. What are the requirements for an “adequate description” of the risk factors under subparagraph 3 sentence 1 of Article 16(1) of the EU Prospectus Regulation?

Subparagraph 3 sentence 1 of Article 16(1) of the EU Prospectus Regulation requires the prospectus to include an adequate description of each risk factor and an explanation of how it can affect the issuer or the securities. This description, where the entity drawing up the prospectus is to provide information about its assessment of the materiality of the risks, must enable the investor to make an informed investment decision. There is no requirement in the EU Prospectus Regulation for issuers to disclose the process of assessing the materiality or the methods used for this purpose, however.

For the sake of comprehensibility, the prospectus should disclose the fact that the materiality of the risks has been assessed on the basis of two factors: the probability of their occurrence and the anticipated scope of their negative impact. Nevertheless, this information, which is usually provided in the introductory section before the risk factors are actually presented, cannot replace the required adequate description of the risk factors.

The qualitative scale referred to in subparagraph 3 sentence 2 of Article 16(1) of the EU Prospectus Regulation – low, medium or high – may be used to describe the assessment of materiality. Though this does not replace the adequate description of the risk factors, as is always required, or that of the impact on the issuer or the securities, it does – according to the information provided in the ESMA Guidelines on risk factors under the Prospectus Regulation (see guideline 4 margin no. 28 of the ESMA Guidelines on risk factors under the Prospectus Regulation from 1 October 2019 – ESMA31-62-1293) – in principle fulfil the requirement to describe the materiality. On the whole, however, it is necessary to ensure that the impact of the risks is adequately described.

If the qualitative scale referred to in subparagraph 3 sentence 2 of Article 16(1) of the EU Prospectus Regulation is not used but an alternative qualitative description instead, it is still necessary to ensure that this alternative description enables the investor to identify the materiality of the risk factors.

6. Does the adequate description of the risk factors specified in subparagraph 3 sentence 1 of Article 16(1) of the EU Prospectus Regulation have to include separate information regarding the probability of occurrence as part of the assessment of materiality?

Isolated information on the probability of the occurrence is not necessary under the provisions of the EU Prospectus Regulation, regardless of whether the qualitative scale in subparagraph 3 sentence 2 of Article 16(1) of the EU Prospectus Regulation is used or an alternative qualitative description of materiality.

7. Does the assessment of the materiality of securities-specific risks in a base prospectus also have to address the probability of occurrence?

Yes. Under subparagraph 2 of Article 16(1) of the EU Prospectus Regulation, the materiality of risk factors is to be assessed on the basis of the probability of their occurrence and the scope of their negative impact to be anticipated. This provision applies to both individual prospectuses and base prospectuses. It is therefore not permitted to indicate that an assessment of the risks does not take the probability of their occurrence into account.

It is true that in the case of base prospectuses, an applicant describing securities-based risks will not typically be able to provide as much specific information on materiality, since – unlike individual prospectuses – the relevant parameters are not yet known. In this respect, a more abstract or more general description of the materiality of risks – in view of individual, not yet established, optional features – is permitted, but also necessary. The description of the materiality can, for example, make use of statements with regard to trends, showing that a risk – e.g. that the instrument will cross below a barrier or that a knock-out event will occur – will develop depending on a certain x-factor and that the risk may continue to increase in combination with a leverage factor.

Insofar as the large number of products and types of features in a base prospectus and, consequently, an even larger number of possible interdependencies make it unfeasible to clearly describe the materiality of risks, even in more abstract terms, it might be necessary to divide the various products up into several prospectuses.

VI. What has changed with regard to the summary under Article 7 of the EU Prospectus Regulation?

Under Article 7 of the EU Prospectus Regulation, the maximum number of pages for the summary in prospectuses has in principle been reduced to seven standard A4 pages. However, the summary can be extended by additional A4 pages in certain exceptional cases. The risk factors to be included in the summary are limited to a maximum of 15 of the risk factors also mentioned in the prospectus.

VII. How much more flexible are the rules for the language of the prospectus?

Where securities are to be offered to the public – or admission to trading on a regulated market is sought – only in the home Member State (in this case: the Federal Republic of Germany), the prospectus must now be drawn up in a language accepted by the competent supervisory authority (i.e. in Germany, BaFin) (see Article 27 of the EU Prospectus Regulation). Under section 21 (2) of the German Securities Prospectus Act (Wertpapierprospektgesetz – WpPG), it is anticipated that English will be an accepted language from 21 July 2019 onwards, provided that the prospectus (or, in the case of base prospectuses, the final terms) contains a translation of the summary into German (see the draft bill of the German government for the further implementation of the EU Prospectus Regulation and the adaptation of financial market legislation). Consequently, a securities prospectus can be drawn up in English, even in completely domestic German cases.

VIII. What are the requirements for submitting a draft prospectus to BaFin as of 21 July 2019?

Each draft prospectus must be sent to BaFin in a searchable electronic format via the MVP Portal. When submitting its first draft prospectus, the issuer, offeror or person asking for admission to trading on a regulated market must name a point of contact to whom BaFin can send all correspondence electronically. Since BaFin communicates by e-fax, a fax number must also be provided.

IX. What documents need to be included with an application for the approval of a draft prospectus or for filing a universal registration document with BaFin?

Article 42 of Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 (applicable as of 21 July 2019) supplementing the EU Prospectus Regulation as regards the format, content, scrutiny and approval of the prospectus (“Delegated Regulation”) contains detailed provisions on the supporting documents which the issuer must submit to BaFin via the MVP Portal in a searchable electronic format. As a rule, the supporting documents must be submitted together with the first draft prospectus. Also as a rule, if the issuer files a universal registration document, the supporting documents must be submitted at the time of filing. The supporting documents are the following:

• cross-reference list, provided that the prospectus is not structured in the order of the annexes or the prospectus does not have any cross-references indicated in the margin (see Article 24(6) of the Delegated Regulation);

  The cross-reference list must specify the points in the annexes regarding the type of issuer, the securities, the offer or the admission to trading that were not incorporated into the draft prospectus, and give reasons why this is the case. If it is not necessary to submit a cross-reference list, these details must be sent to BaFin in a separate document;

• the documents with the information incorporated into the prospectus by reference, provided they have not already been approved by or filed with BaFin in a searchable electronic format;
• applications for authorisation of the omission of certain information from the prospectus as referred to in Article 18 of the EU Prospectus Regulation, including reasons for the omission;
• all notification applications for the prospectus;
• all notification applications for the registration document or the universal registration document;
• if the notification of a registration document or a universal registration document is being applied for, the associated appendix required (Article 26(4) of the EU Prospectus Regulation; see also FAQ III.3) unless no summary is required under subsection 2 of Article 7(1) of the EU Prospectus Regulation;
• any other information BaFin may require for the purposes of scrutinising and approving the prospectus or the universal registration document.

Additional statements and documents to be submitted by issuers filing a universal registration document or submitting such document for approval:

• confirmation provided by the issuer stating that, to its knowledge, all the information it is required to submit under the national rules implementing the Transparency Directive (2004/109/EC), if applicable, and under the Market Abuse Regulation (596/2014) has been filed and published in accordance with that legislation over the last 18 months or since the obligation to submit this information commenced, whichever period is shorter;
• if a universal registration document is filed without prior approval, a statement of whether a request for amendment or for submission of supplementary information under subsection 2 of Article 9(9) of the EU Prospectus Regulation has been taken into account in the universal registration document;
• if a universal registration document filed without prior approval has margin notes as referred to in Article 24(6) of the Delegated Regulation, also an identical version without margin notes;
• where a frequent issuer informs the competent authority under subparagraph 1 sentence 2 of Article 20(6) of the EU Prospectus Regulation that it intends to apply for the approval of a draft prospectus, this notification must be sent via the MVP Portal. The frequent issuer must send BaFin this notification no later than five working days before the date envisaged for the submission of an application for approval. The notification must indicate which annexes are relevant for the draft prospectus in question.

X. What are the requirements for submitting the final draft prospectus to BaFin as of 21 July 2019? What supporting documents are necessary for the approval of the final draft prospectus?

• The final draft of the prospectus must be submitted to BaFin in a searchable electronic format via the MVP Portal.
• The final draft of the prospectus must not have any margin notes within the meaning of Article 24(6) of the Delegated Regulation.
• The final draft of the prospectus must be submitted for approval together with all the supporting documents that have been amended since the previous version (except for the cross-reference list and the confirmation of the frequent issuer regarding the Transparency Directive and the Market Abuse Regulation).
• Where no amendments have been made to the supporting documents, the issuer, offeror or person asking for admission to trading on a regulated market must confirm this via the MVP Portal.

XI. Is it possible as of 21 July 2019 for prospectuses to be approved before all the relevant metadata are available?

As of 21 July 2019, BaFin must receive all the relevant metadata before it can approve a prospectus (see Annex VII of the annexes to 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). Even if not all metadata are known at the time the prospectus is first submitted, the first version can still be submitted. Any missing metadata will be pointed out in the course of the consultation.

XII. Is it possible as of 21 July 2019 for final terms to be filed even if the relevant metadata are not available?

As of 21 July 2019, it is necessary to provide all the relevant metadata when filing final terms (see Annex VII of the annexes to 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).

XIII. What documents are required in order to register for the MVP specialised procedure for electronically filing prospectuses, supplements, final terms, (universal) registration documents and securities information sheets plus updates?

As of 21 July 2019, BaFin has changed the procedure for identifying the filing parties when they apply for access to the MVP specialised procedures “Prospectuses” and “Filing final terms of the offer”. The requirements for providing notarised signatures and certified extracts from the commercial register no longer apply. BaFin is thus significantly simplifying access to the MVP specialised procedure.
The following applies to the identification of the party filing prospectuses and supplements or final terms, (universal) registration documents, securities information sheets and updates for securities information sheets with regard to the application for access to the MVP specialised procedure.
If the filing party works for the issuer (employee or contact person), the following documents must be submitted to BaFin by post or by fax (0228/4108 – 63110):

• application for the specialised procedure, signed by the filing party;
• letter of confirmation of the issuer stating that the filing party is authorised to electronically file prospectuses and supplements or final terms, (universal) registration documents, securities information sheets or updates for securities information sheets. The letter of confirmation must be signed by persons individually or jointly authorised to represent the issuer;
• evidence of the power of representation of the person(s) signing the letter of confirmation (commercial register extract or equivalent foreign documents).

If the filing party is a third party (e.g. attorney as contact person), the following documents must be sent to BaFin:

• application for the specialised procedure, signed by the third party;
• certificate of authorisation granted by the issuer, stating that the third party is authorised to electronically file prospectuses and supplements or final terms, (universal) registration documents, securities information sheets or updates for securities information sheets on behalf of the issuer. The power of attorney must be signed by persons who are individually or jointly authorised to represent the issuer;
• evidence of the power of representation of the person(s) signing the power of attorney (commercial register extract or equivalent foreign documents).

XIV. What are the fees charged in connection with the German Securities Prospectus Act (Wertpapierprospektgesetz – WpPG) and the EU Prospectus Regulation?

text currently undergoing revision

XV. Can the exemptions from the prospectus requirement set out in section 3 no. 1 and no. 2 of the German Securities Prospectus Act (Wertpapierprospektgesetz – WpPG) be combined in such a way that, within 12 months, it is possible to offer securities to the public in the EEA for a total consideration of up to EUR 16 million without a prospectus?

The exemptions from the prospectus requirement set out in section 3 no. 1 and no. 2 of the WpPG cannot be combined in such a way that, within 12 months, an offer can be made in the EEA for a total consideration of more than EUR 8 million. Both section 3 no. 1 and section 3 no. 2 of the WpPG are based on Article 3(2) of the EU Prospectus Regulation. If they were to be combined in such a way, the applicant would be making twofold use of the exemption under Article 3(2) of the EU Prospectus Regulation for the offer concerned. This would be contrary to the aim of limiting this exemption to EUR 8 million.
Furthermore, the exemptions set out in section 3 no. 1 and no. 2 of the WpPG differ in that credit institutions and issuers whose shares are already admitted to trading on a regulated market (“privileged issuers”) benefit from the exemption in no. 1 while all other issuers can take advantage of the exemption in no. 2. This exemption, unlike the one in no. 1, is bound to the further conditions set out in section 4 et seq. of the WpPG, including the obligation to file and publish a securities information sheet.