5.9 Listing and the Information Management Regime 195Listing on a First-tier Market
According to EU securities markets law, a company must fulfil certain
requirements before its shares can be admitted to trading on a regulated market.
One could say that listing conditions and admission to trading rules can provide
issuers with a means of signalling their basic credibility to investors.^258
Overlapping requirements. The Listing Directive and the MiFID seemingly lay
down overlapping requirements, and their mutual relationship is ambiguous.
The Listing Directive covers the “official listing” without defining the official
listing concept. In the past, such a definition was not necessary as traditional stock
exchanges were monopoly providers of listing services. That model became
outdated as markets developed multiple trading segments and second-tier markets
developed strongly.^259
The official listing concept was replaced by the regulated market concept in
later directives which formed the FSAP. However, the Listing Directive continued
to apply.
It is unclear whether or not the Listing Directive requires Member States to
apply a regime for “official listing” in the first place. The most important
difference relates to authority to decide on admission (the competent public
authority or the regulated market). As far as Community law is concerned, the
same disclosure regime will apply in both cases, because the most important
distinction is that between regulated markets and exchange-regulated markets.
Admission to listing, admission to trading. There is a distinction between
admission to listing and admission to trading.
According to the Listing Directive, the “competent authority” will decide on
the admission of securities to “official listing on a stock exchange”.^260 The compe-
tent authorities are public authorities^261 such as the UK Listing Authority (the
FSA, acting as the competent authority for listing) or the BaFin in Germany.^262
The “competent authorities” can reject an application for the admission of a secu-
rity to listing where, in their opinion, the issuer’s situation is such that admission
would be detrimental to investors’ interests.^263
According to the MiFID, the authorisation to operate a regulated market even
covers activities related to the admission of financial instruments to trading.^264 The
MiFID provides that regulated markets decide on admission of financial
instruments to trading.^265
Substantive requirements under Community law. The Listing Directive and the
MiFID contain substantive requirements. All Member States of the EU tend to
(^258) See Moloney N, EC Securities Law. OUP, Oxford (2008) p 67.
(^259) Moloney N, EC Securities Law. OUP, Oxford (2008) pp 68–69.
(^260) Article 11(1) of Directive 2001/34/EC (Listing Directive).
(^261) Article 48(2) of Directive 2004/39/EC (MiFID).
(^262) Die Bundesanstalt für Finanzdienstleistungsaufsicht, the Federal Financial Supervisory
Authority. See § 32 BörsG.
(^263) Article 11(2) of Directive 2001/34/EC (Listing Directive).
(^264) Recital 49 of Directive 2004/39/EC (MiFID).
(^265) See recital 49 of Directive 2004/39/EC (MiFID).