On 1 November 2018, the European Securities and Markets Authority (“ESMA”) added three new questions and answers to its Q&A (the “Q&A”) on the Market Abuse Regulation (“MAR”). The purpose of the Q&A is to provide clarity on the practical application of MAR with the aim of promoting a common supervisory approach. The latest updates to the Q&A have been made with respect to the delayed disclosure of inside information under Article 17(5) of MAR.
The Q&A covers the following topics so far:
- disclosure of inside information;
- prevention and detection of market abuse;
- managers’ transactions;
- investment recommendation;
- market soundings; and
- insider lists.
Question number: 5.3
Assessment of the relevant conditions under MAR Article 17(5)
When issuers that are credit/financial institutions intend to delay disclosure of inside information under Article 17(5) of MAR, what are the elements they should consider in their assessment of the conditions therein contained?
The institution should provide the evidence to the National Competent Authority (“NCA”) that all the conditions (set out below) are met to justify the delay.
The disclosure must entail a risk of undermining the stability of both the institution and the financial system.
In terms of the entailing a risk of undermining the stability of the financial system, it is necessary to make the assessment against the size of the institution and its impact on the financial system.
A specific analysis based on circumstances should be made instead of ex ante categorisations.
Recital 52 of MAR provides a general guidance on the scope of “public interest”, i.e. “the wider public and economic interest in delaying disclosure outweighs the interest of the market in receiving the information which is subject to delay”.
The institution should attempt to identify the entities and groups who could be directly or indirectly affected by the delayed disclosure and whose interests may be regarded as a public interest.
All direct economic impacts and other non-financial interests of the public should also be considered.
If there are divergent interests of the public, the institution should assess on a case-by-case basis if the prevailing public interest(s) is to delay the disclosure.
NCA should be provided with the information as to how the confidentiality of the inside information can be ensured.
The institution should consider their procedures and measures to ensure the confidentiality and draw up their insider list.
Question number: 5.4
Notification of the expected duration under Article 17(5) of MAR.
Are credit/financial institutions required to notify the NCA of the expected duration of the delay under Article 17(5) of MAR?
Yes. The institutions are expected to provide their assessment on the expected length of the delay and the details of expected trigger events.
If consent to the delay is granted by the NCA, the institutions should inform the NCA whenever they become aware of a new element or event that may affect the duration of the delay.
Question number: 5.5
NCA’s denial of consent
Where the NCA does not consent to the delay of disclosure under Article 17(5) of MAR, can a credit/financial institution resort to Article 17(4) of MAR?
No. According to Article 17(6) of MAR, the institution must disclose the inside information immediately if consent by the NCA is not granted under Article 17(5).
Therefore, the institutions will not be able to resort to the delay of disclosure under Article 17(4) of MAR.
ESMA will continue to develop and add new questions and answers to the Q&A.
To view the full Q&A please follow this link.
For more information, and any guidance or advice on your firm’s obligations under MAR, Cleveland & Co external in-house counsel, your specialist outsourced legal team, are here to help.