Consultation on DTR amendments to implement EU changes

 

HM Treasury and the Financial Conduct Authority have published a joint consultation paper on the amendments to be made to the Disclosure and Transparency Rules and the Financial Services and Markets Act 2000 to implement into UK law certain changes made to the EU Transparency Directive. The FCA is also proposing some other changes to the DTRs at the same time, relating to stock lending and investment managers.

Background

The EU Transparency Directive was amended in November 2013 by an Amending Directive and member states have until 26 November 2015 to implement those amendments into national law. The UK has already implemented some of the changes ahead of time: the removal of the requirement to publish an interim management statement (the old DTR 4.3) and implementation of a requirement for companies in certain sectors to report on payments to Governments (the new DTR 4.3A).

Most of the remaining changes will be implemented by changes to the DTRs, for which the FCA has responsibility. There will also be some changes to FSMA in relation to sanctions powers: HMT is responsible for those.

Financial instruments with a similar economic effect

The UK regime has been more extensive than required by the Transparency Directive in that it has required disclosure of contracts for differences and other financial instruments with a similar economic effect to qualifying financial instruments since 2009. The Amending Directive has now introduced a requirement at EU level to disclose holdings of financial instruments with similar economic effect. The main difference with the existing UK regime is that there can no longer be a standalone exemption for client-serving intermediaries: there will be little practical impact on others. However, the FCA proposes amending the current rules and instead incorporating the text of the relevant ESMA regulatory and technical standards. There are also proposed amendments to how holdings are aggregated.

Publication and availability of financial reports

Issuers will have longer to publish their half-yearly reports as the deadline will be extended from two to three months after the end of the period to which the report relates. Issuers will have to keep annual financial reports and half-yearly reports publicly available for ten years, rather than the current five years.

Other changes to implement the Amending Directive

It is also proposed to make amendments to the DTRs to implement the Amending Directive to:

  • reflect the fact that it will no longer be possible for an issuer to fail to declare a home member state;
  • introduce an exemption from the notification obligation for voting rights attached to shares acquired for stabilisation purposes;
  • clarify the definition of issuer in respect of non-listed securities represented by depository receipts; and
  • remove the requirement for issuers to communicate draft amendments to their constitutions to the FCA and the market.

Sanctions

HMT is looking at various amendments to FSMA to implement the sanctions provisions of the Amending Directive. In particular it is looking at provisions to enable suspension of voting rights for the most serious breaches of the notification requirements and an expansion of the current power to sanction directors knowingly involved with a breach.

Other DTR changes (not deriving from the Amending Directive)

All investment managers will be able to make voteholder notifications at the 5%, 10% and higher EU thresholds, rather than at the UK superequivalent thresholds of 3% and every 1% thereafter. Currently the requirements are different depending on whether the investment manager is a US or EEA firm or from elsewhere.

Following ESMA guidance that suggests that stock lending transactions (which are disposals with a right of recall) are disclosable under the Transparency Directive, the FCA proposes to amend DTR 5 to require a stock lending transaction to be disclosed by both the lender and the borrower at the 5%, 10% and higher thresholds required by the Directive.

Consultation

The deadline for responses is 20 May 2015. The consultation paper, Implementation of the Transparency Directive Amending Directive (2013/50/EU) and other Disclosure Rule and Transparency Rule changes (CP15/11) is available here.