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The « Listing act package » [Proposal for a Directive of the European Parliament and of the Council amending Directive 2014/65/EU to make public capital markets in the Union more attractive for companies and to facilitate access to capital for small and medium-sized enterprises and repealing Directive 2001/34/EC, Brussels, 7.12.2022, COM(2022) 760 final, 2022/0405 (COD) ; Proposal for a Directive of the European Parliament and of the Council on multiple-vote share structures in companies that seek the admission to trading of their shares on an SME growth market, Brussels, 7.12.2022, COM(2022) 761 final, 2022/0406 (COD) ; Proposal for a Directive of the European Parliament and of the Council amending Regulations (EU) 2017/1129, (EU) No 596/2014 and (EU) No 600/2014 to make public capital markets in the Union more attractive for companies and to facilitate access to capital for small and medium-sized enterprises, Brussels, 7.12.2022, COM(2022) 762 final, 2022/0411 (COD)] has two key objectives: to reduce the administrative burden on companies wishing to raise funds and to provide flexibility with respect to voting rights.
The Directive of 28 May 2001 (2001/34/EC) initially contained provisions relating to the conditions for listing on the official list, the prospectus and the transparency of listed companies. It has been progressively emptied of its content so that currently only the listing conditions remain in force.
It should be noted that this text refers to the official list, whereas other texts speak of regulated markets. While in some States these concepts are interchangeable, in others they are not. Moreover, the MiFID II Directive of May 15, 2014 (2014/65/EU) and the Delegated Regulation of May 24, 2016 (2017/568) also include listing rules. The simplification of European legislation and its coherence also require the repeal of the directive of May 28, 2001 and the introduction of supplements to MiFID 2. These supplements set, with regard to shares, a minimum capitalization requirement and a minimum distribution of securities to the public, which is moreover reduced: it would be reduced from 25% to 10% of the capital. It is not certain, however, that the provisions of the MiFID 2 directive, even if supplemented, can fully replace the 2001 directive.
The simplification of European legislation on listing seems to us to be a secondary objective, the primary objective being to encourage the use of the growth market by SMEs. The first recitals of proposal 760 are symptomatic in this respect, as they focus on the activity of seeking investors and on the remuneration of this activity.
The retrocession regime resulting from MiFID II is considered too restrictive since the COVID 19 crisis because companies need to be "supported by strong capital markets. Research on small and mid-cap issuers is essential to help issuers connect with investors. This research increases the visibility of issuers and thus ensures sufficient investment and liquidity. Investment firms should be allowed to pay jointly for the provision of research and the provision of execution services, provided that certain conditions are met" (Recital 8, Directive 2021/338 of 16 February 2021). Hence the introduction of § 9a in Article 24 of the MiFID by the Directive of February 16, 2021 to allow joint payments for execution services and research.
This provision was still considered insufficient. According to recital 4 of proposal 760, it is necessary to revitalize the market for investor research and to act in favor of companies, in particular small and medium capitalizations. It is therefore necessary to make the rules governing the remuneration of investor research services more flexible, with research requested by the issuer, and therefore paid for in whole or in part by the issuer, being labelled "issuer-sponsored research". Consequently, it is envisaged to modify once again article 24 of the MiFID 2 directive: this is the object of article 1, § 2, of the proposed directive.
The fear of losing control of the company of which they are the founders may dissuade them from raising funds on the markets, and therefore, for SMEs, from raising funds on the SME growth markets. However, going to the market can be of great interest for the development of these companies, hence proposal 761 to allow the introduction of multiple voting shares by companies applying for listing on an SME growth market. This proposal is in line with the position taken by the HCIP, in a report dated September 15, 2022 (Report on multiple voting rights of the Haut Comité Juridique de la Place Financière de Paris September 15, 2022), to allow, at the time of the IPO, the attribution of multiple voting rights to certain shares. It should be noted that the transposition of the provisions of this legislation should not prevent Member States from introducing or maintaining in force rules on multiple voting shares in situations not covered by it (Article 3).
The regime provided for in the proposal is divided into three main texts: Article 4 concerning the adoption of multiple voting shares, Article 5 concerning the protection and non-discriminatory treatment of shareholders, and Article 6 laying down rules on transparency. In particular, it should be noted that the protection is based on the need to limit the impact of the voting of multiple voting shares on the exercise of other shareholder rights at general meetings, in particular by introducing - this is one of the options mentioned in Article 5 - a maximum weighted voting ratio and by limiting the number of such shares to a certain proportion of the share capital.
The legislation regarding admission to trading is multifaceted. As Proposal 762 of December 7, 2022 (p. 2) points out, companies are subject to obligations before, during and after the initial public offering (IPO) of securities. The proposal focuses on two moments: "the IPO stage and the post-IPO stage". This explains why it aims to amend in particular the Prospectus Regulation (No. 2017/1129) of 14 June 2017 and the Market Abuse Regulation (No. 596/2014) of 16 April 2014.
The amendments are numerous. In particular, it can be noted that the threshold above which Member States may exempt offers of securities to the public from the obligation to publish a prospectus has been raised from EUR 8 million to EUR 12 million. This change will benefit SMEs as they will be subject to a new disclosure document, which is conceived as a "new short form", in case of trading of their securities on an SME growth market. It may also be noted that the proposal specifies that the obligation to disclose to the public inside information does not cover information relating to the intermediate stages of a prolonged process: this exclusion is justified by the fact that such information is too preliminary and therefore not precise enough to be covered by the disclosure obligation.
