On March 11, 2014, the European Parliament adopted, with amendments, the European Commission’s proposal for a Directive amending the Prospectus Directive and the Solvency II Directive in respect of the powers of the European Supervisory Authorities (Omnibus II). Omnibus I enacted technical amendments to 11 directives, incorporating into banking and securities directives references to the European Supervisory Authorities (ESAs) (being the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA)). Omnibus II sets out a framework for how the ESAs could work effectively and it defines the precise scope of the exercise of some of their powers. It also proposes amendments to the Prospectus Directive, in particular, certain articles which set out ESMA’s obligation to draft regulatory technical standards and to submit them to the European Commission. The adopted text of Omnibus II will now be forwarded to the Council of the European Union under the ordinary legislative procedure.
Notable amendments to the European Commission’s proposal include an amendment to the European Commission’s proposed amendment to the third sub-paragraph of Article 5(4) of the Prospectus Directive in relation to the communication to the competent authority of the host Member State and to ESMA of the final terms of any offer that are neither included in the base prospectus nor in a supplement. The adopted text requires the competent authority of the relevant home Member State to communicate those final terms to the competent authority of the host Member State and to ESMA.Article 7 of the adopted text (Article 3 in the European Commission’s proposal) now requires the change to Article 5(4) of the Prospectus Directive to be transposed into national law by March, 31 2015 (as opposed to December 31, 2012) and to apply those measures from 1 January 2016 (as opposed to January 1, 2013).Article 6 requires the European Commission to submit to the European Parliament and to the European Commission by January 1, 2017 (and annually thereafter), a report specifying whether the ESAs have submitted the draft regulatory technical standards and implementing technical standards provided for in Prospectus Directive (as amended). Omnibus II will also require the ESAs to specify whether the submission of such draft regulatory technical standards or implementing technical standards is mandatory or optional, together with proposals, where appropriate.