196 5 Equity and Shareholders’ Capital
have similar requirements, because the Listing Directive is very detailed. A
regulated market is nevertheless not prevented from applying more demanding
requirements in respect of the issuers of securities or instruments which it is
considering for admission to trading than are imposed pursuant to the MiFID and
the Listing Directive.^266
Substantive requirements under the Listing Directive. The Listing Directive
sets out, for example, the following requirements: (a) The foreseeable market
capitalisation of the shares for which admission to official listing is sought must
usually be at least €1 million,^267 but Member States may provide for admission to
official listing even when this condition is not fulfilled provided that the
competent authorities are satisfied that there will be an adequate market for the
shares concerned.^268 (b) The company must usually have published or filed its
annual accounts in accordance with national law for the three financial years
preceding the application for official listing.^269 (c) The shares must be freely
negotiable.^270 (d) There is a rule on “free float”. A sufficient number of shares
must be distributed to the public, and a sufficient number of shares usually means
at least 25% of the subscribed capital represented by the class of shares
concerned.^271 (e) In addition, the company must ensure equal treatment for all
shareholders who are in the same position.^272
Where public issue precedes admission to official listing, the first listing may
be made only after the end of the period during which subscription applications
may be submitted.^273
There is a general duty of disclosure. The Listing Directive provides that “[t]he
listing particulars shall contain the information which, according to the particular
nature of the issuer and of the securities for the admission of which application is
being made, is necessary to enable investors and their investment advisers to make
an informed assessment of the assets and liabilities, financial position, profits and
losses, and prospects of the issuer and of the rights attaching to such securities”.^274
Another important source of disclosure duties is the Prospectus Directive.
Substantive requirements under the MiFID. The Listing Directive is
complemented by the MiFID. Generally, the provisions of the MiFID concerning
the admission of instruments to trading are without prejudice to the application of
the Listing Directive.^275
Member States have a duty to require “the regulated market to establish and
maintain transparent and non-discriminatory rules, based on objective criteria,
(^266) Recital 57 of Directive 2004/39/EC (MiFID); Article 8 of Directive 2001/34/EC (Listing
Directive).
(^267) Article 43(1) of Directive 2001/34/EC (Listing Directive).
(^268) Article 43(2) of Directive 2001/34/EC (Listing Directive).
(^269) Article 44 of Directive 2001/34/EC (Listing Directive).
(^270) Article 46 of Directive 2001/34/EC (Listing Directive).
(^271) Article 48 of Directive 2001/34/EC (Listing Directive).
(^272) Article 66 of Directive 2001/34/EC (Listing Directive).
(^273) Article 47 of Directive 2001/34/EC (Listing Directive).
(^274) Article 21(1) of Directive 2001/34/EC (Listing Directive).
(^275) Recital 57 of Directive 2004/39/EC (MiFID).