The European Securities and Markets Authority (ESMA) has published a consultation paper containing draft guidelines on supplements which introduce new securities to a base prospectus. This is further to the new EU Listing Act provision at article 23(4a) of the Prospectus Regulation that a supplement cannot be used to introduce a new type of security for which the necessary information has not been included in the base prospectus, and ESMA's mandate under new article 23(8) to develop guidelines to specify the circumstances in which a supplement is to be considered a new type of security that is not already described in a base prospectus.
ESMA is proposing the draft Guidelines to align member state practice on when a supplement is to be considered to introduce a new type of security in view of longstanding divergence in the supervision of "product supplements" (meaning supplements considered to introduce a new type of security that is not already described in a base prospectus).
Draft guideline 1 is based on article 23 of the Prospectus Regulation. It focuses on the purpose of a supplement, which is to provide an investor with material information that would concern the assessment of securities that are already described in a base prospectus. Draft guideline 2 recalls the basic problem that arises in the context of "product supplements", which is that issuers attempt to introduce new type(s) of non-equity security information into a base prospectus using a supplement, but the base prospectus does not generally provide for the type of non-equity securities concerned.
The deadline for comments is 19 May 2025. ESMA will publish a final report containing final guidelines in Q4 this year.
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