On 1 March 2026, new legislation is proposed to enter into force, criminalising the conduct of financial activity that requires authorisation or registration without the necessary authorisation/registration (unauthorised financial activity). For market participants involved in share issues – especially underwriters and any sub-underwriters, but also financial advisers and issuing agents – this tightens the risk landscape which increases the need to assess whether it is subject to licensing requirements.
Background: from supervisory risk to criminal liability
Previously, unauthorised financial activity primarily entailed a supervisory risk – typically an order from the Swedish Financial Supervisory Authority (the “SFSA”) to cease the activity, often combined with a conditional fine. Under the new rules, a criminal-law dimension is added. Anyone who, without the necessary authorisation/registration, conducts financial activity that is subject to authorisation or registration may – in cases of intent or gross negligence and with the exception of minor cases – face fines or imprisonment.
When is licensing required in a share issue context?
Licensing questions can arise at several stages in a share issue, depending on the structure and allocation of roles. Financial advisers, underwriters and even sub-underwriters, may be subject to licensing requirements as securities operations if their operations are assessed as investment services or investment activity carried out on a professional basis.
However, the line for when a licensing requirement arises is not always clear. This is problematic from a legal-certainty perspective and risks leading to a significant reduction in the number of underwriters. In practice, it may make capital raisings for listed growth companies more expensive or otherwise more difficult. The authors assess that there is a real risk that rights issues may no longer be possible to underwrite in listed growth companies.
The solution
To counter an unjustifiably negative market effect, the article argues that clearer guidance is needed regarding when a licensing requirement arises in connection with underwritings. This would also strengthen legal certainty, as it is problematic when it is not clear what is permitted and what is criminal. Such guidance could be issued by the SFSA and should, as far as possible, include predictable criteria for whether professional securities operations is being carried out.
What do you need to do?
• Financial advisers and issuing agents: Ensure that the activities actually carried out are covered by the licences held – this applies both to tied agents and the securities institution itself. A “general” licence is not sufficient if the business in practice goes beyond the scope of the held authorisation.
• Underwriters: Assess whether the underwriting business may trigger a licensing requirement. If so, cease the activity or apply for a licence.
• Listed growth companies: No direct effect (the companies are typically not subject to licensing requirements), but an indirect effect may arise if capital raisings become more expensive or harder to execute as the number of underwriters decreases.
Read the full article here.