The Transparency Regulation is one of the three key pieces of European Union legislation designed to provide a common market in securities. The regulation applies to issuers whose securities are admitted to trading on a regulated market. It deals with the obligations of issuers generally companies, and most commonly relates to shares traded on a Stock Exchange. The Irish regulations apply where the home Member State is Ireland.
An issuer shall make public its annual financial report at least four months after the end of each financial year and ensure that it remains publicly available for at least five years. The annual financial report shall include audited financial statements and management reports and responsibility statements.
If the issuer is obliged to prepare consolidated accounts under EU group accounting regulations, it must do so. The audited financial statements shall comprise accounts prepared in accordance with the national law of the Member State in which the issuer is incorporated.
In the case of consolidated accounts, they are to be audited in accordance with group accounting regulations. In other cases, they are to be audited in accordance with common company law requirements in respect of audit.
The audit report, signed by the person or persons responsible for auditing the financial statements, shall be disclosed in full to the public together with the annual financial report.
Responsibility taken shall be made by persons responsible within the issuer. The name and function of persons who makes a responsibility statement shall be clearly indicated in the responsibility statement. For each person making a responsibility statement, the statement shall set out to the best of its knowledge, information and belief that the financial statements, prepared in accordance with the applicable accounting standards, give a true and fair view of the assets, liabilities, financial position and profit or loss of the issuer and undertakings included in the consolidation.
They must confirm that to the best of the person’s knowledge, the management report includes a fair review of the development and performance of the business and the position of the issuer and the undertakings included in the consolidation taken as a whole, together with a description of the principal risks and uncertainties that they face. The issuer is responsible for all information drawn up and made public in accordance with regulation.
An issuer shall make half-yearly financial reports covering each six month interval of the financial year. They shall be made available not later than two months, after the end of the period to which it relates. Half-yearly financial reports must remain available to the public for at least five years.The half-yearly financial report shall contain a condensed set of financial statements, an interim management report and responsibility statements.
Equivalent provisions to those applicable to the annual accounts apply, save that the relevant profit and loss account, balance sheet and explanatory notes are condensed. They are otherwise to follow general principles of accounting. The interim management report is to contain an indication of important events that have occurred during the first six months of the financial year and their impact on the condensed set of accounts, a description of the principal risks and uncertainties for the remaining six months.
An issuer of shares shall disclose in the interim management report the following information, as a minimum:
- Related party transactions which took place in the first six months of the year that have materially effect on the financial position or the performance of the enterprise during that period;
- Any changes in the related parties’ transactions described in the last annual report which could have a material effect on the financial position in the first six months of the current financial year.
If the issuer is not obliged to prepare consolidated accounts, it shall disclose, at a minimum, any transactions which have been entered into with related parties by the issuer, including the amount of such transactions, the nature of the relationship and other information about the transactions necessary for an understanding of the financial position of the issuer, if such transactions are material and have not been concluded under normal market conditions.
If the half-yearly financial reports have been audited, the audit report shall be reproduced in full. If they have not been audited, the issuer is to make a statement to this effect.
Responsibility statements shall be made by the persons responsible within the issuer. They are equivalent to those made at year end in respect of the information contained in the interim management report and condensed set of financial accounts.
The interim management statement shall contain information that covers the period from the beginning of the relevant six month period and the date of publication of the statement. The interim management statement shall provide an explanation of material events and transactions that have taken place during the relevant period and their impact on the financial position of the issuer and its controlled undertakings, and a general description of the financial position and performance of the issuer and its controlled undertakings during the relevant period.
There are provisions for issuers whose registered office is in a third country. If the issuer’s home state is in another state then, the Central Bank may exempt certain of the above requirements, provided that the law of the third country in question lays down equivalent requirements or the issuer complies with requirements of the law of the third country that the Bank considers equivalent.
A third country’s law shall be deemed to be equivalent where it lays down requirements for an annual management report including at least
- a fair review of the development and performance of the issuer’s business and position together with description of the principal risks and uncertainty it faces, such that the review presents a balanced and comprehensive analysis of the development and performance of the issuer and its position consistent with the size and complexity of the business;
- an indication of important events that have occurred since the end of the financial year;
- an indication of the issuer’s likely future development.
There are other provisions and criteria by which a third party’s rules can be deemed equivalent to those above. The prospectus regulations have set out the minimum requirements for an equivalent report.
The following applies to reports and statements published in compliance with the above regulation. It applies to securities traded on a regulated market within the State, securities traded in a regulated market situated or operating outside the State where the issuer State is the home State.
The issuer is liable to pay compensation to a person who has acquired securities issued by it and suffered loss in respect of them as a result of any untrue or misleading statement in a publication to which the provision applies, or the omission from any such publication of any matter required to be included in it.
The issuer is so liable only if a person discharging managerial responsibilities within the issuer in relation to the publication knew the statement to be untrue or misleading or was reckless as to whether it was untrue or misleading, or knew the omission to be a dishonest concealment of a material fact.
A loss is not regarded as suffered as a result of the statement or omission in the publication unless the person suffering it acquired the relevant securities in reliance on the information in the publication, and in time and circumstances in which, it was reasonable for him to rely on that information.
Except as below, the issuer is not subject to any other liability than provided under the regulation in respect of loss suffered as a result of reliance on the above. A person other than the issuer is not subject to any liability, other than to the issuer, in respect of such loss.
Reference to a person being subject to liability includes reference to another person being entitled as against him to a civil remedy or to rescind or repudiate an agreement.
The regulation does not affect liability to be the subject to an administrative sanction or liability for criminal offence.
For the purposes of the regulation the following persons are regarded as persons discharging managerial responsibilities in relation to a publication:
- any director of the issuer or person occupying the position of director, by whatever name called,
- in the case of an issuer whose affairs are managed by its members, any member of the issuer,
- in the case of an issuer which has no persons falling within the above classes, any senior executive of the issuer having responsibilities in relation to the publication.
Issuers of shares have continuing obligations on access to information. Issuers shares and debt securities must ensure that all the facilities and information necessary to enable holders of shares or debt securities exercise their rights are available in the home State and that the integrity of data is preserved.
Shareholders and debt securities must not be prevented from exercising their rights by proxy, subject to the law of the place of incorporation. The requirements regarding that the proxy shall be made available together with a notice convening the meeting; or on request, after the announcement of the meeting.
An issuer of shares or debt securities shall designate, as its agent, a financial institution through which shareholders or debt securities holders may exercise their financial rights.
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