How the EU Rules Work Under the TD2
The European Union Transparency Directive (“TD1”)
Under the European Union Transparency Directive (“TD1”) there only existed a requirement for major shareholders to perform two checks: one in relation to the holding of “shares” (the “shares bucket”)(Article 9/10 of the TD1) and one in relation to the holding of “financial instruments” (the “financial instruments bucket”)(Article 13 of the TD1). There was no explicit requirement across all member states to perform a check on the aggregate of shares and financial instruments. Germany and Spain for example required aggregation of shares and financial instruments, whereas other member states did not. This inconsistency among member states was a complaint against the TD1.
The Amended Transparency Directive (TD2)
The Amended Transparency Directive (TD2) sought to specifically clarify that an aggregated calculation must also be done (it is no longer an optional 'gold plated' requirement), which is why the TD2 goes into depth about "horizontal aggregation" - the core of TD2 Article 13a(1). This point is discussed in the ESMA Q&A on the TD2, Question, and Answer 20. It references Article 13a(1) and includes a number of examples, demonstrating how the aggregation requirement works.
The TD2 and the Commission Delegated Regulation (2015/761) dated 17 December 2014 (the RTS) set out that holdings should be calculated against each of the three individual buckets:
- Shares (equity/DRs/preferred securities)
- Financial Instruments (financial instruments and financial instruments with similar economic effect)
- Aggregate (Shares + Financial Instruments)
To ensure the most accurate check possible in FundApps, there is a single rule for each of the three buckets of assets, and all three need to be approved to work in conjunction. Because there are three independent buckets that might each trigger a disclosure obligation, FundApps includes functionality to consolidate all disclosure alerting under one rule. Because the aggregate rule (bucket 3) is the superset of buckets 1 and 2 (above), we’ve chosen to include functionality so that alerts derived from any bucket are flagged under the aggregate (bucket 3) rule.
To be clear, if your holdings trigger the crossing of a threshold at the level of buckets 1 or 2, you will only receive a Warning in the rules covering those buckets (“shares” or “financial instruments”). You will receive a Disclosure alert in the Aggregate rule that indicates the alert is a result of one of buckets 1 or 2. To investigate which rule prompted the Disclosure in that case, you will need to view the Warning results in FundApps for that jurisdiction/regime.
If only the concentration of the aggregate rule prompts a disclosure, you will also receive an alert describing that case, which will be identifiable through the result reason as shown below:
Examples as per Article 13a(1) in the ESMA Q&A: