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EN
Official Journal of the European Union
22.9.2012
REGULATIONS
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)
THE EUROPEAN COMMISSION,
person responsible for drawing up the prospectus to the
use of the prospectus by financial intermediaries and the
information to be included in the prospectus relating to
underlying indexes and profit forecasts and estimates.
Having regard to the Treaty on the Functioning of the European
Union,
(3)
For the purposes of the third subparagraph of Article 3(2)
Having regard to Directive 2003/71/EC of the European
of Directive 2003/71/EC, Regulation (EC) No 809/2004
Parliament and of the Council of 4 November 2003 on the
should specify what information is to be provided where
prospectus to be published when securities are offered to the
the issuer or the person responsible for drawing up the
public or admitted to trading and amending Directive
prospectus consents by means of a written agreement to
2001/34/EC (
its use by financial intermediaries.

1 ), and in particular Article 5(5) and Article 7(1)
thereof,
(4)
In order to take account of technical developments on
Whereas:
financial markets, and notably the increase in the use of
indexes as underlying of structured securities, certain
requirements of Regulation (EC) No 809/2004 should
be reviewed and clarified. By conferring the responsibility
(1) Commission
Regulation
(EC)
No
809/2004
of
29
April
to compose the index on another entity of the group,
2004 implementing Directive 2003/71/EC of the
issuers could circumvent the requirement to include in
European Parliament and of the Council as regards
the prospectus a description of the index composed by
information contained in prospectuses as well as the
the issuer (item 4.2.2 of Annex XII) and thus avoid
format, incorporation by reference and publication of
liability where the description is inaccurate. Accordingly,
such prospectuses and dissemination of advertisements ( 2 )
that requirement should also be extended to indexes
sets out the minimum information to be included in a
composed by an entity belonging to the same group as
prospectus for different kinds of securities in order to
the issuer.
comply with Article 5(5) and Article 7(1) of Directive
2003/71/EC.
(5) With
a
view
to
increasing
efficiency
and
reducing
admin
(2) Directive
2003/71/EC
was
amended
by
Directive
istrative burdens, this Regulation should also lay down
2010/73/EU of the European Parliament and of the
conditions under which a description of the index within
Council of 24 November 2010 amending Directives
the prospectus is not required when the index is
2003/71/EC on the prospectus to be published when
composed by entities acting in association with or on
securities are offered to the public or admitted to
behalf of the issuer. Moreover, as item 2.10 of Annex
trading and 2004/109/EC on the harmonisation of trans
XV only refers to broadly based and recognised published
parency requirements in relation to information about
index, a statement in the prospectus specifying where the
issuers whose securities are admitted to trading on a
information about the index can be found should be
regulated market
(
sufficient without a description of the composition of

3 ) in order to enhance investor
protection, reduce administrative burdens for companies
the index being necessary.
when raising capital in the securities markets in the
Union and increase efficiency in the prospectus regime.
Regulation (EC) No 809/2004 should therefore be
amended regarding the consent of the issuer or the
(6) In
order
to
reduce
the
administrative
costs
for
issuers
when raising capital, this Regulation should lay down
conditions under which the report prepared by inde
( 1 ) OJ L 345, 31.12.2003, p. 64.
( 2 ) OJ L 149, 30.4.2004, p. 1.
pendent accountants or auditors accompanying profit
( 3 ) OJ L 327, 11.12.2010, p. 1.
forecasts and estimates is not required, notably where

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independent accountants or auditors are not able to sign
(a) the additional information set out in Sections 1 and 2A
the audit report because the complete set of documents
of Annex XXX where the consent is given to one or
constitutive of annual financial statements are not
more specified financial intermediaries;
available to them.
(b) the additional information set out in Sections 1 and 2B
(7) Directive 2010/73/EU replaced the term ‘key
of Annex XXX where the issuer or the person
information’ by the term ‘essential information’ in a
responsible for drawing up the prospectus chooses to
number of provisions of Directive 2003/71/EC. The
give its consent to all financial intermediaries.
Annexes to Regulation (EC) No 809/2004 should
therefore be adapted.
2. Where
a
financial
intermediary
does
not
comply
with
the conditions attached to consent as disclosed in the
(8) In
order
to
avoid
any
further
inconsistent
application
of
prospectus, a new prospectus shall be required in
Directive 2003/71/EC, in particular for the purposes of
accordance with the second paragraph of Article 3(2) of
the third subparagraph of Article 3(2) thereof, and to
Directive 2003/71/EC.’;
avoid additional delays in ensuring enhanced investor
protection and reduction of administrative burdens for
companies when raising capital in the securities
markets in the Union it is essential to provide for an
(3) the second subparagraph of Article 22(1) is replaced by the
entry into force on the day of its publication in the
following:
Official Journal of the European Union.
‘A base prospectus shall contain the information items
(9) Regulation
(EC)
No
809/2004
should
therefore
be
required in Annexes I to XVII, Annex XX and Annexes
amended accordingly,
XXIII to XXX depending on the type of issuer and securities
involved. Competent authorities shall not require that a base
prospectus contains information items which are not
included in Annexes I to XVII, Annex XX or Annexes
HAS ADOPTED THIS REGULATION:
XXIII to XXX.’;
Article 1
(4) the Annexes are amended in accordance with the Annex to
Amendments to Regulation (EC) No 809/2004
this Regulation.
Regulation (EC) No 809/2004 is amended as follows:
Article 2
(1) the second paragraph of Article 3 is replaced by the
Transitional provision
following:
1. This
Regulation
shall
not
apply
to
the
approval
of
a
supplement to a prospectus or base prospectus where the
prospectus or base prospectus was approved before the date
‘A prospectus shall contain the information items required
referred to in Article 3.
in Annexes I to XVII and Annexes XX to XXX depending
on the type of issuer or issues and securities involved.
Subject to Article 4a(1), a competent authority shall not
require that a prospectus contains information items
2. Where
in
accordance
with
Article
18
of
Directive
which are not included in Annexes I to XVII or Annexes
2003/71/EC the competent authority of the home Member
XX to XXX.’;
State notifies the competent authority of the host Member
State with a certificate of approval in relation to a prospectus
or a base prospectus approved before the date referred to in
Article 3, the competent authority of the home Member State
(2) the following Article 20a is inserted:
shall clearly and explicitly indicate in the certificate that the
prospectus or base prospectus was approved before the date
referred to in Article 3.
‘Article 20a
Additional information building block for consent
given in accordance with Article 3(2) of Directive
Article 3
2003/71/EC
Entry into force
1. For
the
purposes
of
the
third
subparagraph
of
Article 3(2) of Directive 2003/71/EC, the prospectus shall
This Regulation shall enter into force on the day of its
contain the following:
publication in the Official Journal of the European Union.

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Official Journal of the European Union
22.9.2012
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 June 2012.
For the Commission
The President
José Manuel BARROSO

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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:
‘13.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible for
the prospectus in general, approves that information;
(b) 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;
(c) 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:
‘9.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible for the
prospectus in general, approves that information;
(b) 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;
(c) 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:
(a) item 13.2 is replaced by the following:
‘13.2. 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.
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:

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Official Journal of the European Union
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(a) the person responsible for this financial information, if different from the one which is responsible
for the prospectus in general, approves that information;
(b) 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;
(c) this financial information has not been audited.’;
(b) 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:
‘8.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible for the
prospectus in general, approves that information;
(b) 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;
(c) this financial information has not been audited.’;
(7) Annex XII is amended as follows:
(a) the heading of Section 3 is replaced by the following:
‘3. ESSENTIAL INFORMATION’;
(b) 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:
‘2.10. 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.’;

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(10) Annex XX is amended as follows:
(a) in the Section entitled ‘Annex V’, the heading of Section 3 is replaced by the following:
‘3. ESSENTIAL
INFORMATION’;
(b) in the Section entitled ‘Annex XII’, the heading of Section 3 is replaced by the following:
‘3. ESSENTIAL
INFORMATION’;
(c) in the Section entitled ‘Annex XII’, point (ii) of item 4.2.2 is replaced by the following:
‘(ii) where the underlying is an index:
— the name of the index, Category
C
— a description of the index if it is composed by the issuer or by any legal Category A
entity belonging to the same group,
— a description of the index provided by a legal entity or a natural person Category A
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, an indication of where to Category C’
obtain information about the index.
(d) in the Section entitled ‘Annex XIII’, the heading of Section 3 is replaced by the following:
‘3. ESSENTIAL
INFORMATION’;
(e) the following Section is added:
‘Annex XXX Instructions
1. INFORMATION
TO
BE
PROVIDED
REGARDING
CONSENT
BY
THE
ISSUER
OR
PERSON RESPONSIBLE FOR DRAWING UP THE PROSPECTUS
1.1 Express
consent
by
the
issuer
or
person
responsible
for
drawing
up
the
prospectus
Category A
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.
1.2
Indication of the period for which consent to use the prospectus is given. Category
A
1.3
Indication of the offer period upon which subsequent resale or final placement of Category C
securities by financial intermediaries can be made.

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Annex XXX Instructions
1.4
Indication of the Member States in which financial intermediaries may use the Category A
prospectus for subsequent resale or final placement of securities.
1.5 Any
other
clear
and
objective
conditions
attached
to
the
consent
which
are
Category C
relevant for the use of the prospectus.
1.6
Notice in bold informing investors that, in the event of an offer being made by a Category 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.
2A ADDITIONAL
INFORMATION
TO
BE
PROVIDED
WHERE
A
CONSENT
IS
GIVEN
TO ONE OR MORE SPECIFIED FINANCIAL INTERMEDIARIES
2A.1 List
and
identity
(name
and
address)
of
the
financial
intermediary
or
intermediaries
Category C
that are allowed to use the prospectus.
2A.2 Indication
how
any
new
information
with
respect
to
financial
intermediaries
Category A
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.
2B ADDITIONAL
INFORMATION
TO
BE
PROVIDED
WHERE
A
CONSENT
IS
GIVEN
TO ALL FINANCIAL INTERMEDIARIES
2B.1 Notice
in
bold
informing
investors
that
any
financial
intermediary
using
the
Category A’
prospectus has to state on its website that it uses the prospectus in accordance
with the consent and the conditions attached thereto.
(11) in Annex XXII, Section A, the following element A.2 is added:
‘All A.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:
‘8.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible for the
prospectus in general, approves that information;

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(b) 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;
(c) 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:
‘13.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible for
the prospectus in general, approves that information;
(b) 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;
(c) this financial information has not been audited.’;
(15) in Annex XXVI, item 9.2 is replaced by the following:
‘9.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible for the
prospectus in general, approves that information;
(b) 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;
(c) this financial information has not been audited.’;
(16) Annex XXVIII is amended as follows:
(a) item 13.2 is replaced by the following:
‘13.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible
for the prospectus in general, approves that information;

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(b) 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;
(c) this financial information has not been audited.’;
(b) 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:
‘8.2. 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.
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:
(a) the person responsible for this financial information, if different from the one which is responsible for the
prospectus in general, approves that information;
(b) 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;
(c) 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)
1 INFORMATION
TO
BE
PROVIDED
REGARDING
CONSENT
BY
THE
ISSUER
OR
PERSON
RESPONSIBLE
FOR DRAWING UP THE PROSPECTUS
1.1 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.
1.2 Indication of the period for which consent to use the prospectus is given.
1.3 Indication of the offer period upon which subsequent resale or final placement of securities by financial
intermediaries can be made.
1.4 Indication
of
the
Member
States
in
which
financial
intermediaries
may
use
the
prospectus
for
subsequent
resale or final placement of securities.
1.5 Any other clear and objective conditions attached to the consent which are relevant for the use of the
prospectus.
1.6 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.
2A ADDITIONAL INFORMATION TO BE PROVIDED WHERE A CONSENT IS GIVEN TO ONE OR MORE
SPECIFIED FINANCIAL INTERMEDIARIES
2A.1 List and identity (name and address) of the financial intermediary or intermediaries that are allowed to use the
prospectus.

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2A.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.
2B ADDITIONAL 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.’

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