The Prospectus Regulation, which has applied since 21 July 2019, introduced various amendments to the risk factor regime in prospectuses. Building on that, the European Markets and Securities Authority (ESMA) has now issued guidelines (the Guidelines) on risk factors, which will take effect from 4 December 2019.
The Guidelines are directed at the competent authorities and aim to implement the goals of the reforms under the Prospectus Regulation.
One of the most important goals of the Prospectus Regulation (Article 16(1)), was to replace generic risk factors with transaction-specific ones. To this end, the Guidelines specify that risk factors must describe a relevant risk and not consist of standard risk factors or recycle those from other prospectuses. The materiality and specificity of the risk factor must be demonstrated by either specific corresponding information or disclosed elsewhere in the prospectus.
The issuer, the offeror or the person asking for admission to trading on a regulated market must assess the materiality of the risk factors based on the probability of their occurrence and the expected magnitude of their negative impact. Each risk factor must be adequately described, explaining how it affects the issuer or the securities.
The assessment of the materiality of the risk factors may also be disclosed by using a qualitative scale of low, medium or high. The potential negative impact of the relevant risk must be clear from either...