ECJ Judgement On Access To Prospectuses In Electronic Form

It is rare that a ruling of the ECJ deals with the interpretation of the Prospectus Directive regime (composed of inter alia Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading (the Prospectus Directive) and the related Commission Regulation (EC) No 809/2004 (the Prospectus Regulation). On May 15th 2014 the ECJ gave a ruling in the Michael Timel v Aviso Zeta AG case (C-359/12).

A number of questions were raised by the referring court on prospectus content and publication. In the ECJ's responses to these queries they have clarified the following points:

1. Art. 22(2) of the Prospectus Regulation is to be interpreted as meaning that information required under Art. 22(1) which, although not known at the time of publication of the base prospectus, nevertheless was known at the time of publication of a supplement to that prospectus must be published in that supplement if the information involves a significant new factor, material mistake or inaccuracy capable of affecting the assessment of the securities, within the meaning of Art. 16(1) of the Prospectus Directive.

2. The requirements of Art. 22 of the Prospectus Regulation are not satisfied by the publication of a base prospectus which omits the information required under Art. 22(1), in particular the information referred to in Annex V to the Prospectus Regulation, if no final terms are published.

3. Art. 29(1)(1) of the Prospectus Regulation is to be interpreted as meaning that the requirement that a prospectus must be easily accessible on the website on which it is made available to the public is not fulfilled where there is an obligation to register on that website, entailing acceptance of...