Shareholder rights: implementing regulation published in Official Journal
On 4 September 2018, Commission implementing regulation (EU) 2018/1212 of 3 September 2018 laying down minimum requirements implementing the provisions of Directive 2007/36/EC of the European Parliament and of the Council as regards shareholder identification, the transmission of information and the facilitation of the exercise of shareholders rights has been published in the Official Journal.
The Commission published a draft of the implementing regulation on 12 April 2018 and invited comments by 9 May 2018. The draft Regulation and Annex specify standardised formats and minimum content requirements across a range of documents, including:
- Requests to disclose information regarding a shareholder’s identity, and responses.
- Notices of general meetings and notifications of other corporate events.
- Confirmations of entitlement to exercise shareholder rights at a general meeting and notices of participation by a shareholder at a general meeting.
- Forms of confirmation of the receipt and counting of votes.
- The use of common formats of data and message structure is intended to harmonise practice across member states and to enable efficient and reliable processing and interoperability between an issuer, a chain of intermediaries, and shareholders.
The draft also required transmissions between intermediaries must be made in electronic and machine-readable formats and information provided by issuers or third parties initiating corporate events to intermediaries must be in a format allowing for straight-through processing deploying internationally applied industry standards. Further, intermediaries must allow access to shareholders who are not intermediaries to all information only through generally available tools and facilities, unless agreed by the shareholder, and must ensure that such tools allow for the processing of shareholder actions by the intermediary in the same manner.
The information to be transmitted must be concise and clear, taking into account the targeted recipient of the information. Deadlines will be imposed to ensure swift processing. Minimum security requirements are specified.
Changes to the draft regulation are mainly clarificatory in nature, rather than substantive, including that:
- While issuers must provide information in the language of their published financial information, the obligation also to provide it in a language customary to international finance does not apply if not justified by reference to the issuer’s shareholder base (Article 2(2)). The obligation for information to be concise and clear, taking into account the targeted recipient, has been removed from the final regulation.
- For the deadlines to be complied with by issuers and intermediaries in Article 9, the end of the business day is set at 4pm, such that information received after that time must be forwarded by 10am on the following business day (and not on the same business day) (Articles 9(2) and 9(3)).
- Under Article 9(5), a confirmation of the recording and counting of votes must be sent by the issuer within 15 days of the general meeting in question or, where later, within 15 days of receipt of the request of that confirmation (unless already publicly available). The new reference to the date of receipt as an alternative deadline better reflects the wording of Article 3c(2) of the Shareholder Rights Directive (as amended).
The Annex to the final regulation is in largely the same form as under the draft regulation, albeit with a number of minor changes to the precise content and format requirements for the different types of requests, notices and confirmation required.
The implementing regulation comes into force on 24 September 2018, but will apply from 3 September 2020.
Ron is a partner at Cummings Fisher and heads the derivatives and documentation practice. Drawing on his work in private practice with buy-side clients and in house at investment banks, he has broad experience in providing legal advice in relation to derivatives and structured finance transactions, prime brokerage and asset custody arrangements.
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