Topic Information obligations for issuers Preliminary remarks
Article from Issuer Guidelines published by the Federal Financial Supervisory Authority
The obligation under Article 17 of the MAR to disclose inside information as soon as possible (ad hoc disclosure) is essential for the transparency of the capital markets. It requires issuers to disclose inside information that concerns them directly without undue delay. Finally, under Article 17(2) of the MAR, emission allowance market participants are obliged to disclose inside information concerning emission allowances they hold in respect of their business.
This requirement is supplemented in particular by implementing technical standards in Commission Implementing Regulation (EU) 2016/1055,1 by additional requirements in Delegated Regulation (EU) 2016/5222 and by sections 26 (1), 119 and 120 of the WpHG as well as by sections 3a to 9 of the Securities Trading Notification Ordinance (Wertpapierhandelsanzeigeverordnung – WpAV). These provisions are supplemented by the ESMA Guidelines on delay in the disclosure of inside information3 and by ESMA’s commenting Q&As4 on the MAR.5
The purpose of the ad hoc disclosure obligation is to ensure that all market participants have the same level of information by communicating it to the market quickly and equally to prevent any inappropriate price formation because the market was provided with inaccurate or incomplete information. The ad hoc disclosure obligation thus serves the interests of the broad investing public, safeguards the proper functioning of the capital markets and creates a level playing field through transparency. At the same time, the ad hoc disclosure obligation is an important preventive measure against the abuse of inside information.
In the same way as the statutory definition of inside information in Article 7 of the MAR, Article 17 of the MAR contains a range of undefined legal terms. Any examination of the ad hoc disclosure obligation must be based on the specific circumstances of the individual case.
Footnotes:
- 1 Commission Implementing Regulation (EU) 2016/1055 of 29 June 2016 laying down implementing technical standards with regard to the technical means for appropriate public disclosure of inside information and for delaying the public disclosure of inside information in accordance with Regulation (EU) No 596/2014, OJ L 173, p. 47 and the related Final Report Draft technical standards on the Market Abuse Regulation (ESMA/2015/1455).
- 2 Commission Delegated Regulation (EU) 2016/522 of 17 December 2015 supplementing Regulation (EU) No 596/2014 of the European Parliament and of the Council as regards an exemption for certain third countries public bodies and central banks, the indicators of market manipulation, the disclosure thresholds, the competent authority for notifications of delays, the permission for trading during closed periods and types of notifiable managers’ transactions, OJ L 88, p. 1.
- 3 MAR Guidelines, Delay in the disclosure of inside information (ESMA/2016/1478) and the related Final Report, Guidelines on the Market Abuse Regulation – market soundings on delay of disclosure of inside information (ESMA/2016/1130).
- 4 Questions and Answers On the Market Abuse Regulation (ESMA70-145-111).
- 5 Before future revisions of the Issuer Guidelines, BaFin reserves the right to communicate any updates in the form of FAQs. See also section I in this respect.
