ESMA guidance for new rules on incorporation by reference for prospectuses and interaction with the EuGB Regulation

On 6 June 2025, the European Securities and Markets Authority (ESMA) updated its Q&A Tool publishing several new Q&As relating to incorporation by reference under the EU Prospectus Regulation¹.  There is also some helpful guidance regarding the interaction between the EU Prospectus Regulation and EuGB Regulation².

Incorporation by reference

The changes brought in by the Amending Regulation³ removed the requirement for issuers of debt securities to produce a supplement to update a base prospectus for annual or interim financial information. Instead future annual or interim financial information can be dynamically incorporated by reference into a base prospectus in certain circumstances. Issuers, though,  still need to ensure that they comply with all the requirements around making the information electronically available under Article 19 and that the prospectus complies with Article 6(1) and contains all the necessary information. It is of course still open to issuers to produce a supplement voluntarily for reputational reasons. 

In its recently published Q&As, ESMA has clarified that:

• the type of financial information that can be incorporated by reference under Article 19(1b) includes annual and interim financial information, audit reports and financial statements, corporate governance statements and remuneration reports⁴.
• where financials have not yet been published, the base prospectus should contain, in the relevant section, a hyperlink to where the new annual or interim financial information will be published⁵. This is in accordance with the current practice established with CSSF and BaFin and provides a pragmatic solution.
• there is no obligation to produce a supplement under Article 23 of the EU Prospectus Regulation when incorporating by reference new annual or interim financial information under Article 19 (1b)⁶.This response is no surprise. What ESMA did not say, though, is that, apart from this, the obligation to produce a supplement under Article 23 of the EU Prospectus Regulation still applies (under the conditions as set out in that article). This is at least our interpretation. In addition, where a base prospectus is drawn up as separate documents or as a standalone tripartite prospectus, any new annual or interim financial information must be incorporated by reference into the registration document. Information can be incorporated by reference for as long as the base prospectus or a standalone tripartite prospectus remains valid.

Interaction between the EuGB Regulation and the EU Prospectus Regulation

ESMA has also published a Q&A⁷ on the interaction between the EU Prospectus Regulation and EuGB Regulation, clarifying that issuers can publish the documents that are required to be published prior to issuance under Article 15(1) of the EuGB Regulation at different times. The EuGB factsheet could therefore be published before the prospectus is approved and/or published, provided that the information contained in the prospectus is not misleading and the EuGB factsheet is clear and accurate.

In relation to advertisements, these are permitted provided that Article 22 of the EU Prospectus Regulation is complied with, namely that the advertisement states that a prospectus has been or will be published and indicates where investors can obtain a copy.

As Article 3 of the EuGB Regulation clearly states that the designation of “European Green Bond” and “EuGB” is to be used only for bonds that comply with the requirements set out in Title II of the EuGB Regulation, this designation kicks in when the European Green Bond is issued. In line with standard market practice, issuance takes place at settlement. This means that any documents published before the issuance of the bonds should not mislead investors regarding the possible outcome of the external review and the examination of the draft prospectus by competent authorities.

If an EuGB factsheet relates to more than one European Green Bond issuance at the time of publication it may not have to include information related to later issuances.

Final Thoughts

ESMA has provided some welcome clarity on these areas which will be helpful for issuers of debt securities as they look to take advantage of the new alleviation of incorporating future financial information by reference and navigate the new rules under the EuGB Regulation. It is hoped that this ESMA guidance will lead to a consistent approach to incorporation by reference by national competent authorities and therefore greater harmonisation across the EU Member States. For more information on the more detailed content requirements that ESMA has proposed in its final report, including in relation to standardised format and ESG disclosure, please see our alert ESMA finalises report on prospectus changes: Main changes for debt securities.

This note is for guidance only and should not be relied on as legal advice in relation to a particular transaction or situation. Please contact your normal contact at Hogan Lovells if you require assistance or advice in connection with any of the above.

Authored by Isobel Wright and Jochen Seitz.