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Commission Delegated Regulation (EU) No 862/2012 of 4 June 2012 amending Regulation (EC) No 809/2004 as regards information on the consent to use of the prospectus, information on underlying indexes and the requirement for a report prepared by independent accountants or auditors (Text with EEA relevance)
ANNEX

ANNEX

The Annexes to Regulation (EC) No 809/2004 are amended as follows:

  1. in Annex I, item 13.2 is replaced by the following:

    1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
    2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

      1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
      2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
      3. this financial information has not been audited.;
  2. in Annex III, the heading of Section 3 is replaced by the following:

      3.ESSENTIAL INFORMATION;

  3. in Annex IV, item 9.2 is replaced by the following:

    1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
    2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

      1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
      2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
      3. this financial information has not been audited.;
  4. in Annex V, the heading of Section 3 is replaced by the following:

      3.ESSENTIAL INFORMATION;

  5. Annex X is amended as follows:
    1. item 13.2 is replaced by the following:

      1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
      2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

        1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
        2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
        3. this financial information has not been audited.;
    2. the heading of Section 31 is replaced by the following:

        31.ESSENTIAL INFORMATION ABOUT THE ISSUE OF THE DEPOSITORY RECEIPTS;

  6. in Annex XI, item 8.2 is replaced by the following:

    1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
    2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

      1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
      2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
      3. this financial information has not been audited.;
  7. Annex XII is amended as follows:
    1. the heading of Section 3 is replaced by the following:

        3.ESSENTIAL INFORMATION;

    2. the third indent of item 4.2.2 is replaced by the following:

      • —where the underlying is an index:
        • the name of the index,
        • a description of the index if it is composed by the issuer or by any legal entity belonging to the same group,
        • a description of the index provided by a legal entity or a natural person acting in association with, or on behalf of, the issuer, unless the prospectus contains the following statements:
          • the complete set of rules of the index and information on the performance of the index are freely accessible on the issuer’s or on the index provider’s website,

            and

          • the governing rules (including methodology of the index for the selection and the re-balancing of the components of the index, description of market disruption events and adjustment rules) are based on predetermined and objective criteria.

        If the index is not composed by the issuer, where information about the index can be obtained.;

  8. in Annex XIII, the heading of Section 3 is replaced by the following:

      3.ESSENTIAL INFORMATION;

  9. in Annex XV, item 2.10 is replaced by the following:

    1. Point (a) of item 2.2 does not apply to a collective investment undertaking whose investment objective is to track, without material modification, that of a broadly based and recognised published index. A statement setting out details of where information about the index can be obtained shall be included.;
  10. Annex XX is amended as follows:
    1. in the Section entitled Annex V, the heading of Section 3 is replaced by the following:

      3.ESSENTIAL INFORMATION;
    2. in the Section entitled Annex XII, the heading of Section 3 is replaced by the following:

      3.ESSENTIAL INFORMATION;
    3. in the Section entitled Annex XII, point (ii) of item 4.2.2 is replaced by the following:

      1. where the underlying is an index:
      1. the name of the index,
      Category C
      1. a description of the index if it is composed by the issuer or by any legal entity belonging to the same group,
      Category A
      1. a description of the index provided by a legal entity or a natural person acting in association with, or on behalf of, the issuer, unless the prospectus contains the following statements:
        • the complete set of rules of the index and information on the performance of the index are freely accessible on the issuer’s or on the index provider’s website,

          and

        • the governing rules (including methodology of the index for the selection and the re-balancing of the components of the index, description of market disruption events and adjustment rules) are based on predetermined and objective criteria,
      Category A
      1. if the index is not composed by the issuer, an indication of where to obtain information about the index.
      Category C
    4. in the Section entitled Annex XIII, the heading of Section 3 is replaced by the following:

      3.ESSENTIAL INFORMATION;
    5. the following Section is added:

      Annex XXXInstructions
      1.INFORMATION TO BE PROVIDED REGARDING CONSENT BY THE ISSUER OR PERSON RESPONSIBLE FOR DRAWING UP THE PROSPECTUS
      1.1Express consent by the issuer or person responsible for drawing up the prospectus to the use of the prospectus and statement that it accepts responsibility for the content of the prospectus also with respect to subsequent resale or final placement of securities by any financial intermediary which was given consent to use the prospectus.Category A
      1.2Indication of the period for which consent to use the prospectus is given.Category A
      1.3Indication of the offer period upon which subsequent resale or final placement of securities by financial intermediaries can be made.Category C
      1.4Indication of the Member States in which financial intermediaries may use the prospectus for subsequent resale or final placement of securities.Category A
      1.5Any other clear and objective conditions attached to the consent which are relevant for the use of the prospectus.Category C
      1.6Notice in bold informing investors that, in the event of an offer being made by a financial intermediary, this financial intermediary will provide information to investors on the terms and conditions of the offer at the time the offer is made.Category A
      2AADDITIONAL INFORMATION TO BE PROVIDED WHERE A CONSENT IS GIVEN TO ONE OR MORE SPECIFIED FINANCIAL INTERMEDIARIES
      2A.1List and identity (name and address) of the financial intermediary or intermediaries that are allowed to use the prospectus.Category C
      2A.2Indication how any new information with respect to financial intermediaries unknown at the time of the approval of the prospectus, the base prospectus or the filing of the final terms, as the case may be, is to be published and where it can be found.Category A
      2BADDITIONAL INFORMATION TO BE PROVIDED WHERE A CONSENT IS GIVEN TO ALL FINANCIAL INTERMEDIARIES
      2B.1Notice in bold informing investors that any financial intermediary using the prospectus has to state on its website that it uses the prospectus in accordance with the consent and the conditions attached thereto.Category A
  11. in Annex XXII, Section A, the following element A.2 is added:

    AllA.2
    • Consent by the issuer or person responsible for drawing up the prospectus to the use of the prospectus for subsequent resale or final placement of securities by financial intermediaries.
    • Indication of the offer period within which subsequent resale or final placement of securities by financial intermediaries can be made and for which consent to use the prospectus is given.
    • Any other clear and objective conditions attached to the consent which are relevant for the use of the prospectus.
    • Notice in bold informing investors that information on the terms and conditions of the offer by any financial intermediary is to be provided at the time of the offer by the financial intermediary.
  12. in Annex XXIII, item 8.2 is replaced by the following:

    1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
    2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

      1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
      2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
      3. this financial information has not been audited.;
  13. in Annex XXIV, the heading of Section 3 is replaced by the following:

      3.ESSENTIAL INFORMATION;

  14. in Annex XXV, item 13.2 is replaced by the following:

    1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
    2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

      1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
      2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
      3. this financial information has not been audited.;
  15. in Annex XXVI, item 9.2 is replaced by the following:

    1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
    2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

      1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
      2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
      3. this financial information has not been audited.;
  16. Annex XXVIII is amended as follows:
    1. item 13.2 is replaced by the following:

      1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
      2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

        1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
        2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
        3. this financial information has not been audited.;
    2. the heading of Section 31 is replaced by the following:

        3.ESSENTIAL INFORMATION ABOUT THE ISSUE OF THE DEPOSITORY RECEIPTS;

  17. in Annex XXIX, item 8.2 is replaced by the following:

    1. A report prepared by independent accountants or auditors stating that in the opinion of the independent accountants or auditors the forecast or estimate has been properly compiled on the basis stated, and that the basis of accounting used for the profit forecast or estimate is consistent with the accounting policies of the issuer.
    2. Where financial information relates to the previous financial year and only contains non-misleading figures substantially consistent with the final figures to be published in the next annual audited financial statements for the previous financial year, and the explanatory information necessary to assess the figures, a report shall not be required provided that the prospectus includes all of the following statements:

      1. the person responsible for this financial information, if different from the one which is responsible for the prospectus in general, approves that information;
      2. independent accountants or auditors have agreed that this information is substantially consistent with the final figures to be published in the next annual audited financial statements;
      3. this financial information has not been audited.;
  18. the following Annex XXX is added:

    ANNEX XXX

    Additional information regarding consent as referred to in Article 20a

      (Additional building block)

        1INFORMATION TO BE PROVIDED REGARDING CONSENT BY THE ISSUER OR PERSON RESPONSIBLE FOR DRAWING UP THE PROSPECTUS

      1. Express consent by the issuer or person responsible for drawing up the prospectus to the use of the prospectus and statement that it accepts responsibility for the content of the prospectus also with respect to subsequent resale or final placement of securities by any financial intermediary which was given consent to use the prospectus.
      2. Indication of the period for which consent to use the prospectus is given.
      3. Indication of the offer period upon which subsequent resale or final placement of securities by financial intermediaries can be made.
      4. Indication of the Member States in which financial intermediaries may use the prospectus for subsequent resale or final placement of securities.
      5. Any other clear and objective conditions attached to the consent which are relevant for the use of the prospectus.
      6. Notice in bold informing investors that, in the event of an offer being made by a financial intermediary, the financial intermediary will provide information to investors on the terms and conditions of the offer at the time the offer is made.

        2AADDITIONAL INFORMATION TO BE PROVIDED WHERE A CONSENT IS GIVEN TO ONE OR MORE SPECIFIED FINANCIAL INTERMEDIARIES

      1. List and identity (name and address) of the financial intermediary or intermediaries that are allowed to use the prospectus.
      2. Indication how any new information with respect to financial intermediaries unknown at the time of the approval of the prospectus, the base prospectus or the filing of the final terms, as the case may be, is to be published and where it can be found.

        2BADDITIONAL INFORMATION TO BE PROVIDED WHERE A CONSENT IS GIVEN TO ALL FINANCIAL INTERMEDIARIES

        Notice in bold informing investors that any financial intermediary using the prospectus has to state on its website that it uses the prospectus in accordance with the consent and the conditions attached thereto.