Has the Notion of ‘Private Offerings’ Been Abolished by the Prospectus Regulation of 14 June 2017?

Abstract

Has the notion of “private offering” been abolished in the EU by the Prospectus Regulation of 14 June 2017? Has a change of this magnitude been made in such a subtle manner that it escaped the attention of commentators? These questions can be seriously raised in view of the upheaval that the new European provisions on the prospectus will cause in many Member States, such as France, where the 2003 Prospectus Directive was understood as drawing a distinction between a public offering, either subject to or exempted from the prospectus requirement, and a private offering, falling outside the scope of this prospectus requirement. Indeed, the 2017 Prospectus Regulation essentially removes this distinction in matters of securities and explicitly characterises transactions formerly analysed as private offerings as public offerings benefiting from a prospectus “exemption”.

This paper offers a critical analysis of such an over-extensive conception of a “public offering” of securities, which voids this fundamental distinction of its substance in financial regulation and in company law, and underlines its impact in the field of prospectus regulation and its adverse collateral effects elsewhere.

Keywords: public offering, private offering, prospectus

JEL Classification: K22