Key Benefits:
Minister of Economy, Finance and Foreign Trade,
Vu le monetary and financial codeincluding article L. 621-6;
Considering the letter from the President of the Autorité des marchés financiers of 25 May 2012,
Stop it!
Amendments to the general regulation of the Autorité des marchés financiers, the text of which is annexed to this Order, are approved.
This Order and its annex will be issued in the Official Journal of the French Republic.
A N N E X E
Claims processing
1. Section 313-8 is as follows:
"Art. 313-8. - I. The investment service provider establishes and maintains an effective and transparent procedure for the reasonable and timely processing of claims from non-professional, existing or potential clients.
These customers can send claims free of charge to the investment service provider.
The investment service provider shall respond to the claim within a maximum period of two months from the date of receipt of the claim, unless the particular circumstances are duly justified.
It puts in place a mechanism for the equal and harmonized handling of non-professional clients' claims. This device has the necessary resources and expertise.
It records each claim and the measures taken for processing. It implements a follow-up of claims, including identifying malfunctions and implementing appropriate corrective actions.
Information on the claims processing procedure is available free of charge to non-professional customers.
The claims processing procedure is proportionate to the size and structure of the investment service provider.
II. – For portfolio management companies, the provisions of I apply:
1° Claims of all shareholders or shareholders of OPCVM when no investment service is provided to them on the occasion of the subscription;
2° Claims from shareholders or shareholders of OPCVM from non-professional customers when an investment service is provided to them by the portfolio management company during the subscription.
III. ― An instruction by the AMF specifies the terms and conditions for the application of this section. »
2. After section 313-8, an article 313-8-1 is inserted as follows:
"Art. 313-8-1. - I. The Portfolio Management Company shall take measures in accordance with Article 411-138 and establish appropriate procedures and procedures to ensure that it will properly process the claims of holders of shares or shareholders of OPCVM and that they are not limited in the exercise of their rights when they reside in another Member State of the European Union. These measures allow holders of shares or shareholders of OPCVM to address a claim in the official language or in one of the official languages of the Member State in which the OPCVM is marketed and to receive a response in the same language.
The portfolio management company also establishes appropriate procedures and modalities to provide information, at the request of the public, or, when it manages an OPCVM established in another State of the European Union, the competent authorities of the Member State of origin of this OPCVM.
These provisions apply where no investment service is provided on the occasion of the subscription.
II. ― With respect to claims from non-professional customers, the investment service provider shall establish appropriate procedures and procedures to ensure that it will properly process the claims of these customers and that they are not limited in the exercise of their rights when they reside in another EU Member State. These measures allow non-professional customers to address a claim in the official language or in one of the official languages of the Member State in which the investment service is provided and to receive a response in the same language. »
3. After section 325-12, an article 325-12-1 is inserted as follows:
"Art. 325-12-1. - The Financial Investment Advisor shall establish and maintain an effective and transparent procedure for the reasonable and timely processing of claims to it by its existing or potential customers.
Customers can send claims free of charge to the Financial Investment Advisor.
The claimant shall respond to the client's claim within a maximum period of two months from the date of receipt of the claim, unless the particular circumstances are properly justified.
It puts in place a mechanism for equal and harmonized customer claims processing.
It records each claim and the measures taken for processing. It implements a follow-up of claims, including identifying malfunctions and implementing appropriate corrective actions.
Information on the claims processing procedure is available free of charge to customers.
The procedure established is proportionate to the size and structure of the financial investment advisor.
An AMF instruction specifies the terms and conditions for the application of this section. »
4. After section 321-43, an article 321-43-1 is inserted as follows:
"Art. 321-43-1. - The management company shall establish and maintain an effective and transparent procedure for the reasonable and timely processing of claims addressed to it by civil real estate partners.
The partners may make claims to the management company free of charge.
The management company shall respond to the partner's claim within a maximum period of two months from the date of receipt of the claim, unless the particular circumstances are duly justified.
It sets up a mechanism for equal and harmonized processing of the claims of the partners.
It records each claim and the measures taken for processing. It implements a follow-up of claims, including identifying malfunctions and implementing appropriate corrective actions.
Information on the claims processing procedure is made available free of charge to the partners.
The procedure established is proportionate to the size and structure of the management company.
An AMF instruction specifies the terms and conditions for the application of this section. »
5. The provisions of paragraphs 1 to 4 will come into force on 1 September 2012.
Market surveys
6. Section 216-1 is as follows:
"Art. 216-1. - I. The investment service provider who questions investors in the preparation of a financial transaction is in compliance with the obligations of this section and the code of conduct that imposes the conditions of its implementation and approved as professional rules by the Autorité des marchés financiers, in accordance with Article 314-2.
For the purposes of this section, a financial transaction is an operation in which the provider intervenes at the request of a transmitter or assignor for:
1° Investment of financial securities in the primary market, or
2° From the transfer of financial securities to the secondary market assimilable to an investment transaction by its nature and size, or
3° From the redemption of financial securities to the secondary market.
II. ― Before questioning investors, the provider assesses whether or not the information it will be required to communicate to them is a privileged information within the meaning of section 621-1. The provider shall inform the issuer or transferor of the outcome of this evaluation.
When this information is privileged within the meaning of 621-1, this question is a market survey. In this case, the provider:
1° Informs its compliance officer;
2° Informs each investor, whom he intends to interrogate, that the information he envisages to communicate to him is a privileged information and the consequences thereof;
3° Obtains the investor's agreement before communicating this information to him.
III. ∙ To ensure compliance with this article and the code of conduct referred to above, the provider:
1° Repeals and maintains a procedure specifying the modalities for the implementation of the questions;
2° Retains for a period of at least five years the elements allowing the Autorité des marchés financiers to exercise its control, with the exception of telephone records maintained for a period of at least six months, not exceeding five years.
3° Is able to transmit to the Autorité des marchés financiers, at its request and as soon as possible the names of the interviewees and the date and time they were contacted. »
7. The provisions of paragraph 6 shall enter into force within three months of publication in the Official Gazette of the present Order. »
Public tenders
8. In section 231-1, the first three paragraphs are replaced by the following:
"This title applies:
1° Any offer made publicly to holders of financial instruments negotiated on a regulated market of a Member State of the European Union or party to the agreement on the European Economic Area, including France, for which the AMF is the competent authority in the cases provided for in the cases provided for in I and II of Article L. 433-1 of the Monetary and Financial Codeby a person acting alone or in concert within the meaning of Articles L. 233-10 or L. 233-10-1 of the Commercial Codein order to acquire all or part of the said financial instruments;
2° To public tenders for financial instruments which are admitted to negotiations on a multilateral negotiating system organized within the meaning of Article 524-1, under the conditions set out in Articles L. 433-1 (IV), L. 433-3 (II) and L. 433-4 (V) of monetary and financial code ;
3° To public withdrawal bids on financial instruments that have ceased to be admitted to negotiations on a regulated market or on a multilateral negotiation system organized within the meaning of Article 524-1;
4° To public tenders for financial instruments that have ceased to be admitted to negotiations on a regulated market to be admitted to negotiations on a multilateral trading system under Article 524-1, for a period of three years from that admission, under the conditions provided for inArticle L. 433-5 of the Monetary and Financial Code. »
9. Section 231-11 is amended to read:
1° In the first paragraph, the words "to the Minister responsible for the economy" are replaced by the words "to the Autorité de la concurrence":
2° In the third paragraph, the words: “of the referral of the Conseil de la concurrence under the last paragraph of Article L. 430-5 of the Commercial Code are replaced by the words: "of the procedure provided for in theArticle L. 430-5 (III), third dash, of the trade code » ;
3° After the third preambular paragraph, a sub-item is added as follows:
"The provisions of the preceding paragraphs also apply to a draft offer to be notified under the control of concentrations with a foreign competent authority other than those previously cited, if the procedure followed for obtaining the said authorization is governed by time limits consistent with a period of ten weeks from the opening of the public offer, unless the AMF has agreed to extend the schedule of the offer. The AMF then ruled against the principles set out in section 231-3, after having collected the opinion of the competent body of the corporation concerned. »
10. The first paragraph of section 231-32 is as follows:
"The offer is open on the following day of the award:
1° Dissemination of the information note prepared by the initiator (if applicable jointly with the company concerned) or, in the cases provided for in section 261-1, of the note in response to the corporation concerned;
2° The dissemination of the information referred to in Article 231-28;
3° Where applicable, the receipt by the AMF of the prior authorizations required by existing legislation. »
11. Section 231-38 is amended to read:
1° The III is written as follows:
"III. ― During the offer period, the initiator and the persons acting in conjunction with him may not acquire any title of the particular corporation if the offer is accompanied by one of the conditions referred to in sections 231-9, 231-10 and 231-11. »
2° After the III, the following paragraphs are added:
"IV. ― Without prejudice to the provisions of section 231-41 and III of this section, from the beginning of the offer period and to the opening of the offer, the initiator and the persons acting together with him may acquire the securities of the corporation concerned.
In the case of a public procurement offer under the provisions of Chapter II of this Title, such acquisitions shall be made without the initiator, either alone or in concert, crossing the thresholds referred to in sections 234-2 and 234-5.
In the case of a public offer of purchase under the provisions of Chapters III and VI of this title, these acquisitions are made within 30% of the existing securities covered by the offer, for each class of securities covered.
V. ― Without prejudice to the provisions of section 231-41 and III of this article, from the opening of the offer to the publication of its result, the initiator and the persons acting together with it may acquire the titles of the corporation concerned.
During the reopening of the offer, the initiator may make its offer by purchase of the securities concerned, when the offer is paid in full in cash and provided that at the end of the initial offer period it holds more than 50% of the capital and voting rights of the target company.
VI. ― From the closing of the offer to the publication of its result, the initiator and the persons acting together with him cannot assign any title of the corporation concerned. »
12. Section 231-39 is as follows:
"Art. 231-39. - I. In the case of a public offer of purchase under the provisions of Chapter II of this title, when the initiator and the persons acting in conjunction with him make interventions to purchase on the securities of the corporation concerned, any intervention made above the price of the offer automatically results in the raising of this price to at least 102% of the stipulated price and, beyond, at the level of the price actually paid, no matter how much the securities purchased
After the deadline set by section 232-6 for the filing of a bid and until the publication of the result of the offer, the initiator and the persons acting together with him cannot purchase any securities of the company subject to a price greater than that of the offer.
II. ― In the case of a public offer of purchase under the provisions of Chapters III and VI of this title, or the reopening of a public offer of purchase under the provisions of Chapter II, the intervention of the initiator and of the persons acting together with him on the titles of the corporation concerned shall be:
1° On the basis of an order issued at the offer price, in case of acquisition on the market, or at the offer price and only at that price, in case of non-market acquisition, from the beginning of the offer period and until the opening of the offer;
2° At the price of the offer and only at this price, from the opening of the offer to the publication of its result. »
13. Section 231-40 is as follows:
"Art. 231-40. - I. ― During the offer period, the corporation and the persons acting together with them may not intervene on the capital securities or give access to the capital of the corporation or on the financial instruments related to those securities.
II. ― Where an offer falls within the provisions of Chapter II of this title and is paid in full in cash, the corporation concerned may continue the execution of a share buyback program during the offer period as long as the General Assembly resolution that has authorized the program expressly provided for it and, where it is a measure that may result in a failure of the offer, that its implementation is approved or approved by the General Assembly.
III. ― The provisions of this section also apply during the pre-sale period. »
14. The first two paragraphs of section 231-41 are replaced by the following paragraphs:
"When the offer includes, in whole or in part, the surrender of securities, the persons involved in the offer cannot intervene during the offer period:
1° On capital securities or giving access to the capital of the particular corporation or the financial instruments related to such securities;
2° On capital securities or giving access to the capital issued by the corporation whose securities are offered in exchange or on the financial instruments related to such securities.
However, the corporation issuing securities paying a public offer may continue its interventions on its own securities as part of a share buyback program implemented in accordance with provisions of Article L. 225-209 of the Commercial Code and Regulation (EC) No. 2273/2003 of the European Commission of 22 December 2003, or equivalent foreign regulations. »
15. At the end of section 231-44, a third paragraph is inserted as follows:
"The fractions of 1%, 2% and 5% referred to in this section shall be determined in accordance with the assimilation procedures provided for in theArticle L. 233-9 of the Commercial Code. »
16. Article 231-46 is read as follows:
"I. ― The following individuals or entities must report to the FMA on a day-to-day basis transactions that have effected or likely to have the effect of transferring ownership of the securities or voting rights covered by the offer, including transactions on financial instruments or agreements that have an economic effect similar to the possession of the said securities:
1° People affected by the offer;
2° Persons or entities holding alone or in concert with at least 5% of the capital or voting rights of the corporation concerned;
3° Individuals or entities holding alone or in concert at least 5% of the securities covered by the offer, other than shares;
4° Members of the bodies of administration, supervision or direction of the persons involved in the offer;
5° Individuals or entities that, alone or in concert, from the beginning of the offer period or, if any, of the pre-sale period, have increased their detention by at least 1% of the capital of the target corporation, or by at least 1% of the total of the non-shared securities, as long as they hold that amount of securities.
Transactions to be reported include:
1° The purchase, sale, subscription, loan and borrowing of the securities covered by the offer;
2° The purchase, sale of any financial instrument or conclusion of any agreement having an economic effect similar to the possession of the securities covered by the offer, regardless of its mode of termination;
3° The exercise of the right to award shares attached to these financial instruments or the execution of such agreements. »
17. In the second sentence of the first paragraph of Article 231-47, the words: "without delay" are added after the word "submitted".
18. In article 231-48, a second paragraph shall be inserted after the first paragraph, as follows:
"On an exceptional basis, the AMF may adapt the format of the publication of the declarations transmitted to it pursuant to sections 231-46 and 231-47 if the declarant demonstrates that the declarant is likely to harm the declarant, in particular as a result of a market risk. »
19. Section 231-51 is amended to read:
1° I is written as follows:
"I. ― The providers concerned report to the AMF on a daily basis their position on the securities covered by the offer when they have increased, from the beginning of the offer period or, where applicable, their detention of at least 1% of the capital of the target corporation, or of at least 1% of the total of the securities covered other than shares, as long as they hold that amount of securities. »
2° The third part of the second is as follows:
« 3° The number of securities that the service provider concerned is required to hold within the framework of any financial instrument or agreement that has an economic effect similar to the possession of the securities covered by the offer. »
20. In the third paragraph of Article 232-7, the words: "or lower" are inserted between the words "delete" and "the threshold".
21. Sections 232-14 to 232-16 and section 233-6 are repealed.
22. Section 235-1 is amended to read:
1° In the first paragraph, the words: "Without prejudice to the provisions of the third paragraph of Article 231-1" are replaced by the words: "Without prejudice to the provisions of Article 231-1 (4°)";
2° The second paragraph is repealed.
23. Section 235-2 is as follows:
"Art. 235-2. - The provisions of articles 234-5, 234-7 (2°), 234-7, paragraph 4, and 234-11 are not applicable.
The provisions of chapter IV, other than those mentioned above, are applicable by substituting the 50 per cent threshold.
The provisions of articles 236-5 and 236-6 shall not apply. »
24. Section 235-3 is as follows:
"Art. 235-3. - In addition to the cases referred to in section 234-9, the AMF may also grant an exemption from the requirement to file a public tender in the following cases:
1° Subscription to an increase in reserved capital, subject to the approval of the general meeting of shareholders;
2° Exercise of the right to the allocation of shares attached to securities giving access to capital when the reserved issuance of these securities has been pre-approved by the general meeting of shareholders. »
25. Section 235-4 is repealed.
26. Subtitles: "Section 1. Mandatory filing of a public tender project and "Section 2. Public offer for mandatory withdrawal and withdrawal" from Chapter V are deleted.
27. The second paragraph of section 236-7 is repealed.
Transposition of revised "prospectus" directive
28. Section 211-2 is amended to read:
1° The second is as follows:
« 2° Its total amount is between 100 000 euros and 5,000 euros or the counter-value of these amounts in foreign currency and covers financial securities that do not represent more than 50% of the issuer's capital. For financial securities whose admission to negotiations on an organized multilateral trading system within the meaning of Article 524-1 is requested, its maximum total amount may be reduced to Euro2,500 000 at the request of the market company that manages it. »
2° At 3° and 4°, the amount "50 000 euros" is replaced by the amount "100 000 euros".
29. Section 212-4 is amended to read:
1° At 4°, the words: "The shares offered, awarded or to be allocated free of charge to shareholders, as well as the shares paid in dividend payments" are replaced by the words: "The dividends paid to existing shareholders in the form of shares";
2° The 5th is as follows:
« 5° Financial titles awarded or to be awarded to directors, social agents referred to in II of Article L. 225-197-1 of the Commercial Code or old or existing employees by their employer or by a related corporation, provided that the issuer makes available a document containing information on the number and nature of the financial securities and on the reasons and terms of the offer and provided that:
(a) The transmitter has its central administration or its statutory seat in a Member State of the European Union;
(b) Or that the issuer, whose central or statutory headquarters is established in a non-member State of the European Union, has its financial titles admitted to the negotiations:
either on a regulated market;
– either on the market of a third country, provided that adequate information, including the above-mentioned document, is available at least in a standard financial language and provided that the European Commission has adopted an equivalence decision on the market of the third country concerned. »
3° After 5°, it is added a 6° written as follows:
« 6° The financial securities for which a prospectus is valid under the conditions set out in section 212-24 and subject to the consent of the issuer or person responsible for drafting the prospectus to be used by a written agreement. »
30. Section 212-7 is as follows:
"Art. 212-7. - The prospectus contains all the information that, taking into account the particular nature of the issuer, in particular whether it is a low-volume corporation or a small- and medium-sized corporation and financial securities that are the subject of the offer to the public or whose admission to the negotiations on a regulated market is requested, is necessary to allow investors to assess the assets, the financial situation, and For companies with low market capitalization and small and medium-sized enterprises, this information is appropriate to their size and, where applicable, to their history.
This information is presented in an easy to analyze and understand format.
The prospectus is based on one of the schemes and modules of Regulation (EC) No 809/2004 of 29 April 2004 or one of their combinations for the different categories of financial securities. The prospectus contains the information specified in the schedules of the regulations referred to above according to the type of issuer and the class of financial securities concerned. For the purposes of the above-mentioned regulation, the AMF will take into account the recommendations issued by the European Financial Markets Authority. »
31. After section 212-7, a new section 212-7-1 is inserted as follows:
"Art. 212-7-1. - As defined in section 212-7:
1° Small and medium-sized enterprises are those that, according to their last published annual or consolidated accounts, have at least two of the following three characteristics:
(a) An average number of employees less than 250 people throughout the year;
(b) A total of the balance sheet not exceeding 43,000 euros;
(c) Annual net revenue not exceeding €50,000;
2° A low-volume corporation is a corporation whose financial securities are admitted to negotiations on a regulated market whose average stock market capitalization has been less than €100,000 on the basis of year-end courses in the previous three calendar years. »
32. Section 212-8 is amended to read:
1° In I, the amount "50 000 euros" is replaced by the amount "100 000 euros";
2° II is as follows:
“II. ― The summary outlines in a concise and non-technical language key information that provides, together with the prospectus, adequate information on the essential elements of the relevant financial securities to help investors when considering investing in these securities. It is established in a standard format to facilitate the comparability of summaries related to similar financial securities. »
33. After section 212-8, a new item 212-8-1 is inserted as follows:
"Art. 212-8-1. - For the purposes of section 212-8, the key information is the essential and structured information appropriately that must be provided to investors in order to enable them to understand the nature and risks of the issuer, the guarantor and the financial securities that are offered to them or are admitted to negotiations on a regulated market and in order to determine the offers of financial securities that should continue to be considered, without prejudice to a comprehensive review of the prospectus by investors.
In light of the offer and the relevant financial securities, the key information includes:
1° A brief description of the risks associated with the issuer and potential guarantors as well as the essential characteristics of the issuer and the guarantors, including the assets, liabilities and financial situation;
2° A brief description of the risks associated with investment in the relevant financial securities and the essential characteristics of that investment, including any right attached to these securities;
3° The general terms and conditions of the offer, including an estimate of the expenses incurred by the investor by the issuer or offerer;
4° The modalities of admission to negotiations;
5° The reasons for the offer and intended use of the harvested funds. »
34. In Article 211-11, after the words: "as mentioned in Article 28 of Regulation (EC) No 809/2004 of 29 April 2004" the words "or in Directive 2004/109/EC".
35. Section 212-12 is amended to read:
1° The words "of the Community" are replaced by the words "of the Union";
2° The second preambular paragraph is as follows:
"When an admission to negotiations on a regulated market is provided in France for securities other than capital whose nominal value is at least 100,000 euros or the counter-value of that amount in foreign currency, the prospectus referred to by the AMF is written in French or in another usual financial language. »
36. Section 212-13 is amended to read:
1° In IV, the words: "From the publication" are replaced by the words: "From the filing or registration";
2° In the VII, the words "is made public" are replaced by the word "submitted".
37. In section 212-18, a 4° is added as follows:
« 4° This information concerns a Member State of the European Union when it is the guarantor of the offer of financial securities. »
38. Section 212-24 is amended to read:
1° I is written as follows:
"I. ― The prospectus remains valid for twelve months after the granting of the visa by the AMF for bids to the public or admissions to negotiations on a regulated market when it was completed by the elements required in section 212-25. »
2° In II, after the word "deposed" are added the words "or recorded".
39. Section 212-27 is amended to read:
1° At 2° of I, after the word: "free" are added the words: "in printed form";
2° The 3rd is as follows:
« 3° Online on the issuer's website or, where applicable, on the issuer's website of financial intermediaries that place or sell the securities concerned, including those responsible for the financial securities department; » ;
3° The first paragraph of II is as follows:
"The issuers who publish their flyers according to one of the terms referred to in 1° or 2° of I must also publish them according to one of the terms referred to in 3° of I."
40. Section 212-32 is amended to read:
1° The seventh preambular paragraph reads as follows:
"If the final terms of the offer are not included in the basic prospectus or in a supplement, they are communicated to investors and the competent authority of the Member State of the European Union or host Member States and deposited with the AMF for each operation, as soon as possible and, if possible, before the launch of the operation. In this case, the provisions of Article 212-17(1) apply. »
2° An eighth preambular paragraph is added as follows:
"The final conditions may only contain information on the financial securities note and may not be used as a supplement to the basic prospectus. »
41. The first paragraph of section 212-39 is as follows:
"At the request of the issuer or the person responsible for drafting the prospectus, within three days of negotiations following receipt of the application or, if the application is submitted with the draft prospectus, within one day of negotiation after the issuance of the visa, the AMF shall issue to the supervisory authorities of the other Member States of the European Union or parties to the agreement on the European Economic Area a certificate of approval The same procedure shall be applied for any supplementary note to the prospectus. The certificate of approval shall be transmitted to the issuer or to the person responsible for drafting the prospectus at the same time as to the competent authority of the host Member State. »
42. Section 221-2 is amended to read:
1° In III, the word "financial" and the amount: "50 000 euros" are replaced by the words "debtedness" and the amount: "100 000 euros";
2° An IV is added as follows:
"IV. ― The III also applies to debt securities with a nominal unit value of at least 50,000 euros, or to the counter-value of that amount in foreign currency, which have already been admitted to negotiations on a regulated market before December 31, 2010. »
43. Section 222-1 is amended to read:
1° The words "of the Community" are replaced by the words "of the Union";
2° The second is as follows:
« 2° To the issuers mentioned in the 3rd of the II of Article L. 451-1-2 mentioned above when France is the State where financial securities must be offered for the first time to the public or that of the first application for admission to negotiations on a regulated market, depending on the choice of the issuer. »
44. In all articles of Book II, the words "of the Community" are replaced by the words "of the Union".
45. The 28 to 44 came into force on 1 July 2012.
Abolition of annual reference document
46. In section 212-36, the words "and section 222-7" are deleted.
47. Sections 222-7, 412-17, 412-18 and 421-17 are repealed.
48. In section 223-16-1, the reference "L. 451-1-1" is replaced by the reference "L. 412-1".
Coquils
49. In the first paragraph of section 223-27, replace the words "in the meaning of Article L. 621-1" with the words "in the meaning of Article 621-1".
50. In the first paragraph of section 231-39, the word "made" is replaced by the word "made".
51. At 2° of 622-1, the words "refer to" are replaced by the words "refer to".
Done on 14 June 2012.
Pierre Moscovici
