Act No. 188 / 2011 Coll.

Act amending Act No. 189 / 2004 Coll., on Collective Investment, as amended, and other related laws

Valid Law Effective from 15.07.2011
188
THE LAW
of 9 June 2011
amending Act No. 189 / 2004 Coll., on Collective Investment, as amended, and other related laws
Parliament has decided on this law of the Czech Republic:

ČÁST DRUHÁ

Amendment to the Capital Market Enterprise Act
Čl. III
Act No. 256 / 2004 Coll., on capital market business, as amended by Act No. 635 / 2004 Coll., Act No. 179 / 2005 Coll., Act No. 377 / 2005 Coll., Act No. 56 / 2006 Coll., Act No. 57 / 2006 Coll., Act No. 62 / 2006 Coll., Act No. 70 / 2006 Coll., Act No. 159 / 2006 Coll., Act No. 120 / 2007 Coll., Act No. 420 / 2009 Coll., Act No. 296 / 2007 Coll., Act No. 29 / 2008 Coll., Act No. 223 / 2009 Coll.
1. In footnote 1, at the end of the citation text of Directive 2003 / 71 / EC, the words "as amended by Directive 2010 / 73 / EU of the European Parliament and of the Council 'and in the citation text of Directive 204 / 109 / EC are replaced by" as amended by Directive 208 / 22 / EC of the European Parliament and of the Council'.
2. In footnote 2, "1725 / 2003 of 29 September 2003 'is replaced by" 1126 / 2008 of 3 November 2008'.
3. in Paragraph 2 (1) (a), the word "executive" shall be deleted;
4. in Article 2 (1) (f):
"(f) close links
1. a relationship between two or more persons in which one person has a direct or indirect share of the capital, the sum of which is at least 20%;
2. a relationship between two or more persons in which one person has a direct or indirect interest in voting rights, the sum of which shall be at least 20%;
3. the relationship between two or more persons in which one person controls the other person or others; or
4. the relationship between two or more persons controlled by the same person; ';
5. Article 2 (1) shall be replaced by a dot at the end of point (k) and point (l) shall be deleted.
6. In footnote 2c, "3 'is replaced by" 9' and "No 1725 / 2003 'is replaced by" No 1126 / 2008'.
7. in § 2b (1) (b) (1), § 3 (1) (h) and (k), § 15k (2) (a), § 15k (2) (f) (1), § 15o (1) (e), § 36 (1), (2), (6) to (8), § 36c (5), § 118 (1) (a), § 118 (5) (a), § 119b (1), § 121a and § 123 (1), the words "regulated market located in a Member State of the European Union" shall be replaced by the words "European regulated market."
8. In Article 3 (1) (c), the words "normally traded on the money market (money market instruments) 'are replaced by the words" money market'.
9. In Article 3, the following paragraphs 3 and 4 are inserted after paragraph 2:
"(3) In particular, collective investment securities are investment fund shares and units.
(4) Money market instruments are instruments that are usually traded on the money market and have a value that can be accurately determined at any time. ';
Paragraphs 3 to 5 shall be renumbered paragraphs 5 to 7.
10. In Article 4 (7) in the introductory part of the provision, Article 34 (1) and Article 69 (1), the words "means" shall be replaced by the words "is."
11. in Paragraph 4b, the following paragraph 2 is inserted after paragraph 1:
"(2) The authorisation shall also not require trading on behalf of other market participants in the investment instruments referred to in points (d) to (k) of Article 3 (1) or pricing for such participants, provided that the settlement of such transactions is guaranteed by participants in the settlement system of such a market. ';
Paragraphs 2 and 3 shall become paragraphs 3 and 4.
12. in Article 4b (3) of the introductory part of the provision, "3" is replaced by "4," at the end of point (c), "or" by a dot, and point (d) is deleted;
13. in Article 4b (4), the words "in this law" shall be replaced by "is" and the number "2" shall be replaced by "3."
14. in Articles 4b (4), 16c and 17a (1), the words "regulated market with its head office in a Member State of the European Union" shall be replaced by "European regulated market."
15. in Article 9b (2) (c), "f)" is replaced by "g)";
16. in Article 10d (2) and in Article 10d (6) (g), "3" is replaced by "2."
17. in the first sentence of Paragraph 10d (8), the word "which" shall be inserted after the words "participation or";
18. in Article 12 (b), the following point 4 is added:
"4. investment intermediaries by which a securities dealer carries out its activities and their customers,"
19. in Article 12c (1) (a) and (b), the words "for the safekeeping of investment instruments and" are replaced by the words "for the holding of the property account in which it registers the registered securities of the owner" and the word "held" are replaced by the words "at the same time registered."
20. in Article 12c (1) (b), the words "separate stock records" are replaced by the words "records of investment instruments";
21. in § 15 (2), § 53, § 119a (4), § 120 (1), § 162 (2) (a) and § 167 (10) (a), "regulated market located in a Member State of the European Union" shall be replaced by "European regulated market."
22. in Paragraph 15 (4), "15a" is replaced by "15."
23. in Article 15d (1) (f) (3), "credit institutions" is replaced by "persons."
24. in Article 15g, the words "points 1 to 3" shall be inserted after the words "(f)."
25. in Article 15t (1), the word "quoted" shall be deleted and the words "admitted to trading on a European regulated market" shall be inserted after the word "instrument."
26. in Article 16a (4) (b), the word "quoted" shall be deleted and the words "admitted to trading on a regulated market" shall be inserted after the word "paper."
27. in Article 16a (8), the words "auditor or audit firm (6)) have been verified" are replaced by "audit 6";
footnote 6:
"6) Act No. 93 / 2009 Coll., on Auditors, as amended. '.
28. in Paragraph 16a (9), the words "special legislation" are replaced by the words "law."
29. in Article 16c, the word "quoted" shall be deleted and the words "admitted to trading on a European regulated market" shall be inserted after the word "shares";
30. in Articles 17a (2), 17b (5) and (6) and 17c (1), (2), (5) and (6), the word "quoted" shall be deleted and the words "admitted to trading on a European regulated market" shall be inserted after the word "shares."
31. in Article 17b (1), the words "quoted" shall be deleted; the words "admitted to trading on a European regulated market" shall be inserted after the words "admitted to trading on a European regulated market"; the words "quoted" shall be deleted; the words "admitted to trading on a European regulated market" shall be inserted after the words "quoted";
32. in Article 17b (7), "quoted shares" shall be replaced by "shares admitted to trading on a European regulated market";
33. in Article 17b (8) (a) and (b) and in Article 17b (9), the word "quoted" shall be deleted and the words "admitted to trading on a European regulated market" shall be inserted after the word "shares."
34. in Article 17b (9), "quoted" is replaced by "admitted to trading on a European regulated market";
35. in Article 22a (1), the word "foreign" shall be inserted after the word "participant," the words "having its registered office in another Member State of the European Union" shall be deleted; the words "foreign" shall be inserted after the word "foreign" and the words "in that State" shall be replaced by the words "in the State in which the foreign regulated market has its registered office."
36. in Paragraph 34 (2) (a), the words "these transferable" are replaced by the words "these."
37. in Article 34 (2), point (d) is deleted;
Point (e) shall be renumbered as point (d).
38. In Paragraph 34, the following paragraph 3 is inserted after paragraph 2:
"(3) For the purposes of the provisions of this Act on public tender, a prospectus of a security and the conditions for admission of a security to trading on a regulated market, a qualified investor shall be the person referred to in paragraphs 1 and 2 of Section 2a. A qualified investor shall also mean another person considered by a securities dealer or a person referred to in Article 24 (5) or Article 28 (6) to be a customer who is a professional client within the scope of the transactions or investment services relating to the securities offered. ';
Paragraphs 3 and 4 shall be renumbered paragraphs 4 and 5.
39. In Paragraph 34 (4) of the Introductory Part of the provision, "4 'is replaced by" 5'.
40. in Article 34 (4) (e) and (f), the words "similar subject of business" are replaced by the words "similar activity."
41. in Paragraph 34 (4) (f) (4), the words "the selling price or the emission rate less than the amount corresponding to EUR 50 000 000" shall be replaced by the words "the value of the consideration less than the amount corresponding to EUR 75 000 000" and the words "the offered" shall be inserted after the words "in all Member States of the European Union."
42. In Paragraph 34 (4) (g), the words "shall not exceed EUR 200 000" shall be replaced by "shall be less than EUR 1 000 000" and the words "in all Member States of the European Union" shall be inserted after the words "offered."
43. In Paragraph 34 (4), the dot at the end of point (i) is replaced by a comma and the following point (j) is added:
"(j) securities issued by an open holding fund under a collective investment law or similar collective investment fund under foreign law."
44. in Paragraph 34 (5), "3 (a), (c), (f) and (g)" is replaced by "4 (a), (c), (f), (g) and (i)";
45. in Article 35 (2) (b), the word "none" shall be deleted; the word "State" shall be replaced by "State"; the words "where the offer is made" shall be inserted after the words "European Union," and the number "100" shall be replaced by "150."
46. in Article 35 (2) (c) and (d), Article 36 (2) and Article 36g (5), "EUR 50 000" is replaced by "the fixed limit in euro."
47. In Paragraph 35, the following paragraph 3 is inserted after paragraph 2:
"(3) The person referred to in Article 2a (1) (a) and (c) or a foreign person with a similar activity shall, at the request of the issuer or the person intending to offer publicly the securities, notify whether he considers his client to be professional within the scope of the transactions or investment services relating to the securities of the issuer to be the subject of the offer.";
Paragraphs 3 and 4 shall be renumbered paragraphs 4 and 5.
48. in Articles 35 (4) (b) and 57 (3), the words "by division or on the basis of an approved restructuring plan" shall be inserted after the word "merger."
49. in Article 35 (4) (c), the words "shares offered free of charge to existing shareholders" shall be deleted;
50. in § 35 (4) (d):
"(d) securities issued and offered or allocated to current or former employees or persons with management powers by their employer or by a person from the same group as the employer, provided that they are delivered to the Czech National Bank and that a document containing information on the number and type of securities and the reasons and details of the offer are available to the addressees of the offer as regards the employer or the person from the same group as the employer;
1. having its registered office or head office in a Member State of the European Union; or
2. having its registered office in a State which is not a Member State of the European Union, provided that the employer or a person of the same group as the employer issues securities admitted to trading on a European regulated market or on a securities market located in a State which is not a Member State of the European Union which the European Commission has recognised as being comparable to the European regulated market (§ 35a), ';
51.Paragraph 35 (5) shall be deleted;
52. The following Sections 35a and 35b are inserted after Section 35, including the title of Section 35b:
„§ 35a
(1) A person referred to in Article 35 (4) (d) whose securities are admitted to trading on a securities market located in a Member State which is not a Member State of the European Union which the European Commission has not recognised as being comparable to a European regulated market may submit a request to the European Commission through the Czech National Bank for the recognition of that market as being comparable to a European regulated market.
(2) The application referred to in paragraph 1 may relate only to the market in securities organised on the basis of an authorisation issued by the supervisory authority of the State in which its organiser has its registered office, subject to the supervision of that supervisory authority, and where the legal order of the State of its registered office of that organiser is at least:
(a) require the introduction and maintenance of transparent rules of trading on this securities market which ensure fair and orderly trading and establish objective criteria for the implementation of the guidelines;
(b) require the introduction and maintenance of transparent admission to trading rules which ensure that securities admitted are freely negotiable and are likely to have fair, orderly and effective trading;
(c) requires the introduction and maintenance of measures to prevent market manipulation and the use of internal information;
(d) the issuer of securities admitted to trading on the securities market establishes a regular and continuous information obligation;
(e) provide participants in such a securities market with access to publicly available information on securities admitted to trading on the securities market.
(3) The application referred to in paragraph 1 shall be accompanied by documents certifying compliance with the conditions laid down in paragraph 2. Where the application is incomplete or has other defects, the Czech National Bank shall, without undue delay, invite the applicant in writing to remedy the deficiencies of the application and, where appropriate, to submit further information necessary for the assessment of the application in view of the fulfilment of the conditions laid down in paragraph 2.
(4) Where the Czech National Bank recommends that the market in securities covered by the application be recognised by the European Commission as being comparable to the European regulated market, it shall forward the application with its opinion to the European Commission within 30 days of the date of receipt of the request certifying compliance with the conditions laid down in paragraph 2.
§ 35b
Subsequent public offer of securities
A securities dealer, a person referred to in Article 24 (5) or a person referred to in Article 28 (6) who makes a subsequent public offer of securities subscribed by an issuer or bought from a person offering such securities need not publish a prospectus where:
(a) a prospectus drawn up in connection with the original public tender shall be made available to the addressees for the duration of the subsequent public tender;
(b) this prospectus is valid in accordance with § 36i; and
(c) all persons who have drawn up the original prospectus have expressly made it possible to use it in subsequent public tenders. "
53. In Paragraph 36, the sentence "The prospectus may not contain details of the guarantor if the guarantor is a Member State of the European Union 'is added at the end of paragraph 2.
54. in Article 36 (4), the words "the eighth or the document referred to in Article 120 (7)" shall be replaced by "the fourth or eighth Titles II to IV."
55. in Paragraph 36 (5):
"(5) The summary of the prospectus shall be a structured concise and comprehensible document in the language in which the prospectus was drawn up, the procedure referred to in paragraph 4 being not applicable for its preparation and paragraph 2 of the last sentence shall apply mutatis mutandis; the summary of the prospectus shall include:
(a) an indication that:
1. this summary represents an introduction to the prospectus;
2. the decision to invest in securities should be based on the investor considering the prospectus as a whole,
3. Where an action is brought before a court in respect of the information contained in the prospectus, the defendant investor may be obliged to bear the costs of translation of the prospectus, incurred prior to the initiation of the legal proceedings, unless otherwise provided for in law; and
4. the person who prepared the summary of the prospectus, including its translation, shall be responsible for the accuracy of the information in the summary of the prospectus only if the summary of the prospectus is misleading or inaccurate in the joint interpretation with other parts of the prospectus, or that the summary of the prospectus in the joint interpretation with other parts of the prospectus does not contain the information referred to in paragraph 5 (b); and
(b) a structured summary of the information necessary to assess the nature of the security and the risks associated with it in such a way that, taking into account the prospectus as a whole, the addressee of the offer may consider whether the security is suitable for it; This summary shall include at least:
1. the brief characteristics of the issuer of the security and any guarantor, including the risks associated with the property, liabilities and financial situation of those persons;
2. a brief description of the significant risks of the issuer of the security and, where applicable, the guarantor;
3. a brief description of the significant risks associated with the investment in the security, the essential characteristics of the investment in that security and a description of the rights associated with that security,
4. in the case of a summary of a prospectus issued in connection with a public offer of securities, the reasons for the public offer, the manner in which the issuer or the person making the public offer uses the proceeds of the public offer and the general terms of the public offer, including estimates of the amount of the fees associated with the acquisition of the securities that are the subject of the public offer; and
5. in the case of a summary of a prospectus issued in connection with the admission of a security to trading on a European regulated market, details of admission to trading on a European regulated market, including estimates of the amount of fees associated with the acquisition of securities to be admitted to trading on a European regulated market. ';
56. In the second sentence of Article 36 (8), the word "also ', the words" or the supplement to the prospectus' shall be deleted and the words "and not included in the supplement to the prospectus approved by the Czech National Bank 'shall be added at the end of the second sentence.
57. in Article 36a (1) (b) of the introductory part of the provision and in point 2, "Article 34 (2) (d) (1)" is replaced by "Article 2a (1) (a) or (b) or by a foreign person with a similar activity."
58. in Paragraph 36a (1) (b) (2), the words "capital due" are replaced by the words "principal due."
59. In the first sentence of Article 36a (3), the word "issuer 'shall be inserted after the word" communicated' and the words "as soon as possible, at the latest at the beginning of the public tender 'shall be replaced by the words" and any supervisory authority of the Member State in which the security is to be publicly offered or admitted to trading on the European regulated market, before the start of the public tender and before admission to trading on the European regulated market'.
60. In Article 36b, at the end of paragraph 2, the words "or where the summary of the prospectus does not contain the information referred to in Article 36 (5) (b) in a joint interpretation with other parts of the prospectus' shall be added.
61. in Article 36g (2) (b), the word 'foreign' shall be inserted after the word 'more' and the words' established in a Member State of the European Union other than the Czech Republic 'shall be deleted;
62. In Article 36g (3) (b), the word "foreign" shall be inserted after the word "to" and the words "located in a Member State of the European Union, with the exception of a regulated market (§ 55)" shall be deleted.
63.In Articles 36g (5) and 123 (1), the words "regulated markets located in a Member State of the European Union" shall be replaced by "European regulated markets."
64. in Article 36g (5), the words "the Czech language" are replaced by the words "the language in which documents may be submitted to the Czech National Bank,"
65.In Article 36h (1) (a), "a" is replaced by "or."
66. In Article 36h (1) (a) and (c), the words "or persons referred to in Article 24 (5) or Article 28 (6)" shall be inserted after the words "securities."
67.In Article 36h (1) (a), (d) and (e), the words "in a way that allows remote access' shall be deleted.
68. in Paragraph 36h (3):
"(3) Where the prospectus is published only on a website, the issuer, the offeror, the person requesting admission to trading on a regulated market, or the securities dealer or the person referred to in Article 24 (5) or Article 28 (6) who places or sells the securities shall deliver a paper copy of the prospectus to the investor free of charge upon request. ';
69. In Article 36h (5) of the introductory part of the provision, the words "the person referred to in Article 24 (5) or Article 28 (6)" shall be inserted after the word "papers."
70. in Article 36h (5) (c), the words "in unchanged form" shall be inserted after the words "available."
71. in Article 36i (1), the words "from the first publication" shall be replaced by the words "from the date of its approval by the Czech National Bank."
72. in Article 36i (4), the words "Article 36 (8) or" shall be inserted after the words "in accordance with";
73.In Article 36i, the following paragraph 5 is added:
"(5) The form, content and form of the prospectus may not be altered throughout the period of validity of the prospectus, except for the procedure laid down in Sections 36 (8) and 36j. '
74. Paragraph 36j (3) reads as follows:
"(3) In the case of a public tender, an investor who has agreed to purchase or subscribe to a prospectus before publishing the supplement and who has not yet acquired ownership of such securities shall be entitled to withdraw from the purchase or subscription within 2 working days of the publication of the supplement, unless the person making the public offer in the prospectus supplement determines a longer period. ';
75. in Article 36j, the following paragraph 4 is added:
"(4) The form, content and form of the supplement to the prospectus shall not be altered throughout the period of validity of the supplement to the prospectus."
76. In Articles 36k (3) and 57 (2) (a), "3" is replaced by "4."
77. In Paragraph 36l, at the end of the first sentence, the words "and within the same period shall inform the issuer or the person responsible for drawing up the prospectus of the issue of the certificate."
78. In Article 43 (5), the words "European 'are inserted after the words" other organiser' and the words "established in the Czech Republic or in another Member State of the European Union 'are deleted.
79. In Paragraph 48, the present text becomes paragraph 1 and the following paragraph 2 is added:
"(2) The provisions of this Act governing the securities dealer's management and control system shall apply mutatis mutandis to the organiser of the regulated market. ';
80. In Paragraph 55 (2), the words "a regulated market located in a Member State of the European Union" shall be replaced by "a European regulated market."
81. In Paragraph 55, the following paragraph 3 is added:
"(3) A foreign regulated market shall be a European regulated market which is not a regulated market as referred to in paragraph 1. ';
82. In Paragraph 56 (5), "quoted 'is replaced by" admitted to trading on a foreign regulated market'.
83.In Paragraph 57 (2) (a), "3" is replaced by "4."
84. in Paragraph 57 (2) (d), the words "whose securities are admitted to trading on a regulated market or by a company controlled or controlled by it or by a company controlled by the same person as the employer and offered" shall be replaced by "or by a person of the same group and offered" and the words "managers" shall be replaced by "persons with management authority u."
85. in Paragraph 59 (1), the words "quoted investment instrument" are replaced by the words "admitted to trading on a European regulated market."
86. In Paragraph 63 (7), the word "foreign 'shall be inserted after" Organizer' and the words "established in another Member State of the European Union 'shall be deleted.
87. In Section 72, the words "listed shares' are replaced by the words" shares admitted to trading on a regulated market '.
88. The following Section 83a is inserted after Section 83:
„§ 83a
The provisions of this Act governing the securities dealer's management and control system shall apply mutatis mutandis to the settlement system operator. ';
89. In Paragraph 92 (3) (b), the words "which have custody and management of investment vehicles, including related services in the authorisation," shall be replaced by the words "with regard to the registration of book-entry collective investment securities issued by the mutual fund which it manages or the investment fund with which it has a contract for the management of investment fund assets under the collective investment law."
90. In Articles 92 (3) (d), 93 (2) (e) and 93 (3) (e), the words "subject matter of business" are replaced by "activity."
91. in Article 93 (2) (b) and Article 93 (3) (b), the words "which, in its authorisation to operate, has the said investment service in custody and management of investment vehicles, including related services," shall be replaced by the words "with regard to the registration of book-entry collective investment securities issued by the mutual fund which it manages or with which it has a contract for the management of investment fund assets under the collective investment law."
92. In Paragraph 104, the following paragraph 6 is added:
"(6) The provisions of this Act governing the securities dealer's management and control system shall apply mutatis mutandis to the CSD. ';
93.
„§ 116
A natural person who is or has been an investment intermediary, a tied agent, a person with management authority, a forced administrator, a liquidator, an insolvency administrator, a member of the insolvency administrator or an employee of a person who keeps a register of investment instruments, an organised market operator, a securities dealer, a foreign person providing investment services in the Czech Republic through an organisational component, an investment intermediary, a tied agent, a settlement system operator or a person included in a consolidation entity subject to supervision on a consolidated basis by the Czech National Bank shall be required to maintain confidentiality of information which may be relevant for the assessment of developments in the capital market or may significantly harm a person using services provided on the capital market and which has not been published. ';
94. Paragraph 117 (1) is deleted.
Paragraphs 2 and 3 shall be renumbered paragraphs 1 and 2.
95.In Article 117 (1), the words "under paragraph 1" shall be replaced by the words "under paragraph 116."
96.In Paragraph 117 (2), "paragraph 1" is replaced by "Paragraph 116."
97. In Articles 118 (1) (a) (2) and 118 (1) (b) (1), the words "with the exception referred to in Article 120 (8) shall apply mutatis mutandis" shall be deleted.
98. In Articles 118 (1) (b) (3), 118 (1) (c) (1) to (4) and 127c (2), the words "regulated market located in a Member State of the European Union other than the Czech Republic" are replaced by the words "foreign regulated market."
99.In Article 118 (4) (f) and (h), the part of the sentence after the semicolon, including the semicolon, is deleted.
100. In Article 118 (4) (g), the words "including persons close to them 'and the words" and collectively for those close' shall be deleted.
101. In Paragraph 118 (4) (h), the word "identification" is replaced by the words "first and last names."
102. In footnote 12e, "No 1725 / 2003 'is replaced by" No 1126 / 2008'.
103. In Article 119a (3), the words "referred to in Article 118 (1) (a) 'shall be inserted after the word" issuer'.
104. In Article 119a (4), "quarterly information equivalent to that referred to in paragraph 1 (a) and (b), which must comply with the requirement set out in paragraph 3 'is replaced by" report for the first and third quarters of the accounting year meeting the equivalent requirements set out in paragraphs 1 to 3'.
105. In § 119c (1) (a):

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Regulation Information

CitationAct No. 188 / 2011 Coll., amending Act No. 189 / 2004 Coll., on Collective Investment, as amended, and other related laws
Regulation TypeLaw
Author-
CollectionCode of Laws
Date of Promulgation15.07.2011
Effective from15.07.2011
Effective until-
Status Valid
The regulation text is for informational purposes only.
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