The EU Council adopted the regulation that will create the European Single Access Point (the ESAP Regulation) yesterday, 27 November 2023, paving the way for its publication in the Official Journal.
This follows the successful conclusion of trilogue negotiations in May 2023, and its adoption by the European Parliament earlier this month.
Part of the European Commission's November 2021 Capital Markets Union Package (read our earlier briefing here) the ESAP will be a 'single point of access' platform for public financial, non-financial and sustainability-related information about EU companies and financial products. In-scope information is information that is already being made public under a range of EU directives and regulations – no additional reporting requirements are being imposed on EU companies. Historical information (up to 5 years old at the time of submission to ESAP) may also be provided.
"Investors in capital markets must have access to comparable information about companies and financial products. The ESAP will offer free, user friendly, centralised and digital access to financial and sustainability-related information made public by European companies, including small companies. This will facilitate the decision-making process for a broad range of investors, including retail investors." [EU Council press release]
The ESAP Regulation is accompanied by an Omnibus Regulation and an Omnibus Directive, each of which will amend a range of EU legislation in the areas of capital markets, financial services and sustainability to facilitate the provision of information to ESAP, whether by corporates themselves or by the relevant competent authority. Once ESAP is up and running, entities may also make additional information available via ESAP on a voluntary basis.
The Omnibus Regulation and Omnibus Directive will both come into force 20 days after they are published in the Official Journal – that is the start date for the time periods following which information under particular directives and regulations is to be provided to ESAP. ESMA is to establish and operationalise ESAP by mid-2027. Some information will start being provided to ESMA in advance of that date. The changes made by the Omnibus Directive to various EU directives will necessitate changes to existing domestic transposing legislation in EU Member States – Member States have 2 years to do this (save in respect of the Transparency Directive, in which case they have 18 months).
As the ESAP Regulation was making its way through the legislative process, other new EU measures were being introduced which have been added to ESAP's scope (e.g. MiCA and the EU Green Bond Standard Regulation). The EU Taxonomy Regulation and the Central Securities Depositories Regulation are out of scope.
The EU directives and regulations which will be phased into ESAP's scope are:
Phase 1 (30 months after the Omnibus Regulation and Omnibus Directive enter into force):
Prospectus Regulation, Short Selling Regulation and Transparency Directive.
Phase 2 (48 months after the Omnibus Regulation and Omnibus Directive enter into force):
Accounting Directive, Benchmarks Regulation, Credit Rating Agencies Regulation, EuSEFs Regulation, EuVECA Regulation, Market Abuse Regulation, Pan-European Personal Pension Product Regulation, PRIIPs KID Regulation, Sustainable Finance Disclosures Regulation and UCITS Directive.
Phase 3 (72 months after the Omnibus Regulation and Omnibus Directive enter into force):
AIFMD, Audit Directive, Audit Regulation, Bank Recovery and Resolution Directive, Capital Requirements Directive, Capital Requirements Regulation, Covered Bonds Directive, ELTIF Regulation, EU Green Bond Standard Regulation, Financial Conglomerates Directive, Insurance Distribution Directive, Investment Firms Directive, Investment Firms Regulation, IORP Directive, Markets in Crypto-Assets Regulation, MiFID II and MiFIR, Money Market Funds Regulation, Securities Financing Transactions Regulation, Shareholder Rights Directive, Solvency II Directive and Takeovers Directive.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.