|Circular of October 28, 1993
relating to the methods of application of law n ° 93-122 of January 29, 1993 to financial advertising in the written press
Law n ° 93-122 of January 29, 1993 relating to the prevention of corruption and the transparency of economic life and public procedures wanted to ensure greater transparency in transactions relating to the purchase of advertising space and to clarify the role of intermediaries.
To achieve its objectives, the law indicates that the rules for communicating price scales as well as the invoicing rules contained in the ordinance of 1 December 1986 relating to freedom of prices and competition apply to all services. and therefore to advertising. In addition, it requires intermediaries to work under the mandate regime and prohibits them from being remunerated by the support.
Financial advertising is not the subject of any specific provision in the text. As an advertisement, it is therefore covered by its provisions.
However, during parliamentary debates, the Minister of Economy and Finance, who introduced the bill, stated that some forms of advertising did not meet the definition of advertising as given by the bill. statement of reasons and therefore that they were not subject to the same obligations. This presentation indicates, in fact, that the advertiser is the one who wishes to promote his action, his products or his services. The Minister deduced from this that publications produced in fulfillment of legal or regulatory obligations imposed on the company to ensure proper market information should not be considered as advertising.
The analysis followed will therefore be based on the obligatory nature of the advertisements. It seems futile, in fact, to want to rely on a distinction between good market information and promotion of the company, the two objectives not having anything incompatible and the COB regulations having the precise object of ” ensure their compatibility. On the other hand, it is logical to consider that, when a company carries out a publication to obey a legal obligation, it does not do it to promote its activity while the publication which it makes in the absence of obligation meets well to the definition of advertising, and that, without
Only the courts, possibly seized, will be able to settle these questions definitively. In the meantime, to answer the questions of professionals, we will find here the interpretation of the texts which will guide the action of the administration, it being understood that:
– the mandate will only be binding when the announcement is not; when in doubt, operators can always ensure absolute legal certainty by working within the framework of the mandate provided for by law;
– in any event, whether the advertiser buys the space directly or through an intermediary, the obligations of communication of scale, invoicing and, moreover, the prohibition of discriminatory practices are imposed on the media.
A. – Outside the written press, the mandate is mandatory if you go through an intermediary
The publicity obligations imposed by law or COB regulations only concern the written press, to the exclusion of any other media.
Purchases of space made in other media (radio, television, possibly Minitel) therefore fall under the obligation of the mandate if we go through an intermediary.
Of course, space purchases can also be made directly by the advertiser.
B. – In the written press: the mandate is not compulsory in certain cases even if we go through an intermediary
1. Some publications are not compulsory.
Publications which are of a purely voluntary nature must be regarded as advertising within the meaning of the law and the mandate contract is binding.
With regard to the quotes, if they are not published by the medium on its own initiative, but if their publication is carried out at the request of the company concerned and regulated by it, the purchase of space is also subject to the obligation of the mandate.
2. Certain information must be published in the BALO, but are not, moreover, the subject of any other obligatory publication through the press.
As the decree n ° 67-833 of March 23, 1967 taken for the application of the law n ° 66-537 of July 24, 1966 for commercial companies provides in particular for the publication in the BALO :
– a notice by companies calling on public savings. This document describes the characteristics of the issuing company and the proposed transaction (art. 59);
– accounting results by listed companies: provisional and final annual accounts, half-year accounts, half-year turnover (art. 296 and 297);
– notices of meetings and convening general meetings (art. 124 and 130) by all French companies;
– information in the context of the issue of securities (art. 59, 156, 157, 159, 160, 211 and 212) or on the occasion of the holding of special meetings of security holders (art. 124 and 130).
Nevertheless, many companies wish to ensure that this information is widely published by having it distributed through the press. In this case, the corresponding purchases of space must be considered as covered by the provisions of Articles 20 to 27 and, consequently, subject to the mandate obligation.
3. Other information must be published in the press.
Depending on the case, the regulations provide in particular:
– publication in a medium:
– a note during a public offer (COB regulation 89-03);
the agreement likely to have an impact on the assessment of the public offer (COB regulation 89-03);
– a press release in the event of the acquisition of more than one fifth of a company’s shares (COB regulation 88-02);
– publication in one or more media:
– a prospectus when applying for admission to official listing or for the issue of securities by public offering for which admission to official listing is requested (COB regulation 91-02);
– a simplified prospectus during a public offer to more than 300 people of unlisted securities (COB regulation 92-02);
– a publication, without the medium being specified:
– annual accounts of financial companies whose debt securities are listed (COB regulation 88-04);
– the annual accounts and the management report of foreign issuers whose equity securities are listed (COB regulation 88-04);
– a press release reporting facts likely to have a significant impact on the price of a security (COB regulation 90-02);
– the net asset values of UCITS securities (COB regulation 89-02).
In all cases, the regulatory obligation is considered to have been met once a publication has been made (where applicable, this publication must take place on a given type of medium; for information likely to cause prices to evolve , a simple press release is enough). All other publications will be considered to be voluntary and that the corresponding space purchases must comply with the provisions of Articles 20 to 27.
To the extent that it wishes, the advertiser therefore has the possibility of resorting to two distinct legal regimes for the purchase of space for its compulsory financial advertising: for a medium, which it is up to it to choose, if applicable. , in accordance with the requirements of the COB, he has the full choice of the space purchasing regime; for all others, the mandate regime is required as soon as these purchases go through an intermediary.
As a result, a company that carries out financial advertising that goes beyond the strict legal minimum cannot, for its purchases of space entrusted to an intermediary, come under a single regime unless this regime is that of the mandate. .
4. The case of the global contract.
The practice which consists, for an intermediary, in providing all the financial advertising of a company for a fixed price, is no longer possible as soon as this publication in a medium concerns both non-compulsory advertising and announcements under the application of COB regulations
On the other hand, if the company buys the space directly from the media, the practice of a fixed price is possible provided that it does not correspond to discriminatory conditions.
Finally, an advertiser may use an intermediary, for a fixed price, for all of his mandatory publications if these are limited to the legal minimum as defined in point 3.