Answer provided by the European Commission in accordance with Article 16b(5) of the ESMA Regulation

Yes, non-listed shares should be included in the calculation of the issued share capital of a company and included in the denominator of the ratio. For reasons of consistency, non-listed shares should also be included in the numerator, where relevant. This interpretation aligns with previous interpretations that the EU Short Selling Regulation (Regulation (EU) 236/2012) refers to issued share capital of issuers, irrespective of any features attached to the issued shares.

“Disclaimer: 

The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.”