The individual legal criteria governing the obligation to disclose and publish inside information under Article 17(1) and (2) of the MAR in conjunction with section 26 (1) of the WpHG are explained in the following.

Who is subject to the obligation?

Issuers within the meaning of Article 17 of the MAR

Under Article 17(1) of the MAR, issuers are subject to the ad hoc disclosure obligation. “Issuer” therefore means a legal entity governed by private or public law that issues or proposes to issue financial instruments, the issuer being, in the case of depository receipts representing financial instruments, the issuer of the financial instrument represented; see point (21) of Article 3(1) of the MAR.

Under the third subparagraph of Article 17(1) of the MAR, the obligation to disclose inside information applies to all issuers who have requested or approved admission of their financial instruments to trading on a regulated market in a member state or, in the case of instruments only traded on a multilateral (MTF) or organised trading system (OTF), issuers who have had approved trading of their financial instruments on a multilateral or organised trading facility in a member state or have requested admission to trading of their financial instruments on a multilateral trading facility in a member state.

Approval for trading or its authorisation means more than merely taking note.¹ The issuer must have knowingly and willingly given its approval for trading, either

• because it itself filed an application for admission to trading/inclusion in trading of its financial instruments on an MTF or OTF,
• because it has engaged a third party to file an application for admission to trading/inclusion in trading on an MTF/OTF, or
• because it has approved the admission to trading/inclusion in trading of its financial instruments on an MTF/OTF through a third party.

The term “multilateral trading facility” (MTF) means a system or mechanism that brings together multiple third-party buying and selling interests in financial instruments in the system in a way that results in a contract to buy those financial instruments (point (7) of Article 3(1) of the MAR, point (22) of Article 4(1) of Directive 2014/65/EU (MiFID II), section 2 (8) no. 8 of the WpHG). Operating an MTF is subject to an authorisation requirement (section 32 in conjunction with section 1 (1a) no. 1(b) of the Banking Act (Kreditwesengesetz – KWG)). The term “organised trading facility” (OTF) means a multilateral system that is not a regulated market or an MTF and in which multiple third-party buying and selling interests in bonds, structured finance products, emission allowances or derivatives are able to interact in the system in a way that results in a contract to buy those financial instruments (point (8) of Article 3(1) of the MAR, point (23) of Article 4(1) of Directive 2014/65/EU (MiFID II), section 2 (8) no. 9 of the WpHG). Operating an OTF is also subject to an authorisation requirement (section 32 in conjunction with section 1 (1a) no. 1(d) of the KWG).²

German Freiverkehr markets (regulated unofficial markets) are classified as MTFs.

Issuers within the meaning of section 26 (1) of the WpHG

This must be distinguished from the question of which issuers in the sense described above must comply with the post-admission obligations under section 26 (1) of the WpHG. The national rules set out that a domestic issuer, an MTF issuer or an OTF issuer who is required by Article 17(1), (7) or (8) of the MAR to make public inside information must provide it prior to publication to BaFin and the management of the trading venues on which its financial instruments have been admitted or included in trading. The concept of a “domestic issuer” is defined in section 2 (14) of the WpHG. The term “MTF issuer” is defined in section 2 (15) of the WpHG, while the term “OTF issuer” is defined in section 2 (16) of the WpHG.

Domestic issuers

The definition of a domestic issuer is based largely on the home country principle which was incorporated into the WpHG by the Act Implementing the Transparency Directive (Transparenzrichtlinie-Umsetzungsgesetz)³. It means that the issuer’s registered office in the Federal Republic of Germany is the relevant starting point for assessing whether or not it is subject to transparency requirements. Under certain circumstances, however, Germany may also be the home country for issuers whose registered office is outside Germany. The home state principle aims to ensure that, as a rule, an issuer is only required to deal with one legal system and one supervisory authority.

Under section 2 (14) of the WpHG, domestic issuers are issuers of financial instruments:

• whose home country is the Federal Republic of Germany (see section I.3.2.1.2.1.1).

  However, there is an exemption for issuers whose securities are not admitted in Germany, but only in another member state of the EU or in another signatory state to the Agreement on the European Economic Area (EEA), provided that they are subject in that other state to disclosure and notification requirements under the Transparency Directive (section 2 (14) no. 1 of the WpHG).

• issuers whose home country is not the Federal Republic of Germany but another member state of the EU or another EEA signatory state, but whose securities are only admitted to trading on an organised market in Germany (section 2 (14) no. 2 of the WpHG).

German organised markets are the regulated markets of the German stock exchanges.⁴

Issuers whose home country is the Federal Republic of Germany

With the exception of the exemptions shown in section I.3.2.1.2.1 above, “domestic issuers” are generally all “issuers whose home country is the Federal Republic of Germany”, which is why this definition is extremely important. Section 2 (13) of the WpHG defines the issuers whose home country is the Federal Republic of Germany.

Under section 2 (13) no. 1 of the WpHG, this initially covers all issuers of debt securities the denomination per unit of which is less than €1,000 or the equivalent amount in another currency at the date of issue, and issuers of shares

• whose registered office is in the Federal Republic of Germany and whose securities are admitted to trading on an organised market in a member state of the EU or EEA signatory state (section 2 (13) no. 1(a) of the WpHG), and
• issuers whose registered office is outside the EU or the EEA (third country) whose securities are admitted to trading on an organised market in Germany and who have opted for the Federal Republic of Germany as their home country under section 4 (1) of the WpHG (section 2 (13) no. 1(b) of the WpHG).

Under section 2 (13) no. 2 of the WpHG, it also covers all issuers who have issued financial instruments other than those referred to in section 2 (13) no. 1 of the WpHG and

• whose registered office is in the Federal Republic of Germany and whose financial instruments are admitted to trading on an organised market in Germany or in another member state of the EU or signatory states to the Agreement on the EEA (section 2 (13) no. 2(a) of the WpHG), or
• whose registered office is not in Germany and whose financial instruments are admitted to trading on an organised market in Germany (section 2 (13) no. 2(b) of the WpHG)

and that have opted for the Federal Republic of Germany as their home country under section 4 (2) of the WpHG.

Finally, section 2 (13) no. 3 of the WpHG stipulates that issuers who can opt for the Federal Republic of Germany as their home country and whose financial instruments are admitted to trading on an organised market in Germany are deemed to have opted for the Federal Republic of Germany, provided they have not effectively opted for a home country under section 4 in conjunction with section 5 of the WpHG or under corresponding requirements of other member states of the EU or signatory states to the Agreement on the EEA. The consequence of this is that issuers can always be allocated to a home country even if they have not (yet) opted for one.

According to the conceptual approach underpinning the Transparency Directive,⁵ the member state principle constitutes an issuer-specific perspective, not a financial instrument-specific perspective. It is therefore not possible to have different home countries for different financial instruments (e.g. Germany for shares and Italy for debt securities).

Opting for a home country

Opting for a home country is governed by section 4 of the WpHG.

This states that an issuer within the meaning of section 2 (13) no. 1(b) of the WpHG can opt for the Federal Republic of Germany as its home country if

• it has not already opted for another country as its home country (section 4 (1) sentence 1 no. 1 of the WpHG) or
• it previously opted for another country as its home country but its securities are no longer admitted to trading on any organised market in that country (section 4 (1) sentence 1 no. 2 of the WpHG).

The election applies until

• the issuer’s securities are no longer admitted to trading on an organised market in Germany, but instead are admitted to trading on an organised market in another member state of the EU or in another signatory state to the Agreement on EEA and the issuer opts for a new home country (section 4 (1) sentence 2 no. 1 of the WpHG), or
• the issuer’s securities are no longer admitted to trading on any organised market in a member state of the EU or in another EEA signatory state (section 4 (1) sentence 2 no. 2 of the WpHG).

An issuer within the meaning of section 2 (13) no. 2 of the WpHG can opt for the Federal Republic of Germany as its home country if

• it did not opt for another country as its home country in the past three years (sentence 4 (2) sentence 1 no. 1 of the WpHG) or

• it previously opted for another country as its home country but has no longer had its financial instruments admitted to trading on any organised market in that country (sentence 4 (2) sentence 1 no. 2 of the WpHG).

  The election applies until

• the issuer issues securities within the meaning of section 2 (13) no. 1 of the WpHG that are admitted to trading on an organised market in a member state of the EU or in another EEA signatory state (section 4 (2) sentence 2 no. 1 of the WpHG),
• the issuer’s financial instruments are no longer admitted to trading on any organised market in a member state of the EU or in another EEA signatory state (section 4 (2) sentence 2 no. 2 of the WpHG), or
• under section 4 (2) sentence 3 of the WpHG, the issuer opts for a new home country (section 4 (2) sentence 2 no. 3 of the WpHG).

Finally, under section 4 (2) sentence 3 of the WpHG, an issuer within the meaning of section 2 (13) no. 2 of the WpHG who has opted for the Federal Republic of Germany as its home country can opt for a new home country if

• the issuer’s financial instruments are no longer admitted to trading on an organised market in Germany, but instead are admitted to trading on an organised market in another member state of the EU in another or EEA signatory state (section 4 (2) sentence 3 no. 1 WpHG), or
• the issuer’s financial instruments are admitted to trading on an organised market in another member state of the EU or in another EEA signatory state and at least three years have elapsed since the election of the Federal Republic of Germany as the home country (section 4 (2) sentence 3 no. 2 of the WpHG).

Under section 4 (3) of the WpHG, the election of a home country becomes effective when it is published in accordance with section 5 of the WpHG.

MTF issuers

Under section 2 (15) nos. 1 and 2 of the WpHG, MTF issuers are issuers of financial instruments

• whose registered office is in Germany and that have requested or approved admission of their financial instruments to trading on a multilateral trading facility in Germany or in another member state of the EU or another EEA signatory state, provided that these financial instruments are only traded on multilateral trading facilities, with the exception of issuers whose financial instruments are not admitted to trading in Germany, but only in another EU member state or another EEA signatory state, if they are subject in that other country to the requirements of Article 21 of Directive 2004/109/EC⁶, or
• whose registered office is not in Germany and that have requested or approved admission of their financial instruments to trading on a multilateral trading facility in Germany, provided that these financial instruments are only traded on multilateral trading facilities in Germany.

BaFin’s understanding is that an MTF issuer within the meaning of section 2 (15) of the WpHG can therefore only be an issuer for which not even one financial instrument has been admitted to trading on an organised market in Germany or in another member state of the EU or an EEA signatory state.⁷ In addition, issuers whose registered office is not in Germany and whose financial instruments are not admitted to trading on an organised market but which, in addition to admission to trading on a domestic MTF/Freiverkehr market, are traded on at least one other MTF outside the Federal Republic of Germany, but within the EU or EEA, are not subject to the obligations under section 26 (1) of the WpHG. In cases of doubt, it is advisable to contact BaFin in order to clarify the applicability of section 26 (1) of the WpHG – if applicable, in consultation with other European supervisory authorities.

OTF issuers

Under section 2 (16) nos. 1 and 2 of the WpHG, OTF issuers are ultimately issuers of financial instruments

• whose registered office is in Germany and that have requested or approved admission of their financial instruments to trading on an organised trading facility in Germany or in another Member State of the EU or another EEA signatory state, provided that these financial instruments are only traded on organised trading facilities, with the exception of issuers whose financial instruments are not admitted to trading in Germany, but only in another EU member state or another EEA signatory state, if they are subject in that country to the requirements of Article 21 of Directive 2004/109/EC, or
• whose registered office is not in Germany and that have only requested or approved admission of their financial instruments to trading on an organised trading facility in Germany.

In this case, too, an OTF issuer status can only be established if not even one financial instrument has been admitted to trading on an organised market in Germany or in another member state of the EU or an EEA signatory state.

Decision tree: Domestic issuer

Decision tree: Domestic issuer

Decision tree: Home country

Decision tree: Home country

Decision tree: MTF issuer

Decision tree: MTF issuer

Decision tree: OTF issuer

Decision tree: OTF issuer

Beginning and end of the ad hoc disclosure obligation

With regard to the ad hoc disclosure obligation, Article 17(1) of the MAR requires issuers on the regulated market and MTF issuers to make inside information public through ad hoc disclosures starting on the date on which they have applied for admission for their financial instruments to trading.

Specific situations may arise in individual cases if only admission to trading has been applied for (e.g. with regard to assessing the potential to have a significant effect on prices). These are explained in the following, in each case in connection with the further criteria applicable to ad hoc disclosure (see section I.3.2.2.4). To improve readability, scenarios where financial instruments have already been admitted to trading will be addressed first.

The issuer’s ad hoc disclosure obligation does not end when trading in its financial instruments is discontinued in accordance with section 25 (1) sentence 1 no. 2 of the Stock Exchange Act (Börsengesetz – BörsG). Rather, the obligation to disclose inside information lapses when the admission of the issuer’s financial instruments to trading is revoked, provided there are no further listings on the regulated market, an MTF or an OTF that give rise to the disclosure obligation.

Definition of financial instruments

The ad hoc disclosure obligation applies to issuers of all types of financial instruments. In addition to securities such as shares, share certificates, debt securities, profit-participation certificates and other comparable instruments, these also include derivatives and other financial instruments such as money market instruments and rights to subscribe for financial instruments, as well as investment fund units. Please refer to the overview of financial instruments in section I.1 in this respect.

Emission allowance market participants

The ad hoc disclosure obligation is also addressed to emission allowance market participants; see Article 17(2) of the MAR.

Under point (20) of Article 3(1) of the MAR, “emission allowance market participant” means, in the first instance, any person who enters into transactions, including the placing of orders to trade, in emission allowances, auctioned products based thereon, or derivatives thereof, and who does not benefit from an exemption under the second subparagraph of Article 17(2) of the MAR. The disclosure obligation applies to inside information relating to emission allowances that are held or controlled not only by the market participant concerned, but also by its parent undertaking or related undertaking, and for whose operational matters the market participant, its parent undertaking or related undertaking is responsible, in whole or in part. Reflecting point (32) of Article 4(1) of Directive 2014/65/EU (MiFID II) and Article 4 in conjunction with points (12) and (13) of Article 2 of Regulation (EU) No 1227/2011 (REMIT), parent undertaking or related undertaking are undertakings within the meaning of points (9) and (10) of Article 2 and Article 22(7) of Directive 2013/34/EU⁸.⁹

The insertion “in respect of its business” in the first sentence of the first subparagraph of Article 17(2) clarifies that participants are only required to disclose inside information if they operate installations or aviation activities. Under certain circumstances, however, these may also include (legally independent) trading units if they belong to a company with activities within the meaning of the Emissions Trading Directive 2003/87/EC¹⁰ establishing a scheme for greenhouse gas emission allowance trading.¹¹ Other market participants such as credit institutions or brokers are not subject to the requirements of Article 17(2) of the MAR.

There is only a disclosure obligation if the emissions of the installations or aviation activities exceed a minimum carbon dioxide equivalent threshold of six million tonnes or, where they carry out combustion activities, the rated thermal input threshold exceeds 2,430 MW¹². Recital (14) of Delegated Regulation (EU) 2016/522 states that the thresholds must be taken into consideration cumulatively. This means that exceeding one of two thresholds is enough to trigger the disclosure obligations under Article 17(2) of the MAR.

With regard to CO2 emissions by the companies, an analysis must be made of the previous year (1 January to 31 December), because this relates to cumulative emissions over the course of a year that are routinely determined by the installations.¹³ For disclosures between 1 May 2018 and 30 April 2019, the annual figures for 2017 were to be used, and for disclosures between 3 January and 30 April 2018, the values for 2016. For disclosures from 1 May 2019 to 30 April 2020, the values for 2018 must be used.

With regard to the second threshold, the rated thermal input (RTI), by contrast, a reference date analysis as at 31 December of the previous year must be made. Where the rated thermal input is concerned, a distinction must be made between the technically possible RTI and the RTI actually authorised. BaFin presumes that a disclosure obligation under Article 17(2) of the MAR applies as soon as either the technically possible RTI or the RTI actually authorised exceeds the threshold of 2,430 MW.

Third parties acting on behalf or for the account of the issuer or emission allowance market participant

Exceptionally, the ad hoc disclosure obligation may also affect third parties. For example, a person who is acting on behalf or for the account of the issuer or the emission allowance market participant and discloses any inside information to any third party in the normal course of the exercise of their employment, profession or duties as referred to in Article 10(1) of the MAR, is required by the first sentence of Article 17(8) of the MAR to disclose it publicly simultaneously, unless the other person owes a duty of confidentiality, regardless of whether such duty is based on a law, on regulations, on articles of association or on a contract. If the inside information was not disclosed intentionally, it must be disclosed to the public promptly.

Insolvency of an issuer or emission allowance market participant

If a temporary or final insolvency administrator has been appointed, the domestic issuer, MTF or OTF issuer (represented by its board of management) and the emission allowance market participant continues to be subject to the disclosure obligation. However, section 24 of the WpHG requires the insolvency administrator to support the debtor in meeting this obligation, in particular by making available the financial resources required to meet the disclosure obligation.

Persons in the company who are subject to the disclosure obligation

The obligation under Article 17(1) of the MAR to disclose inside information affects the issuer. In the case of a German stock corporation (Aktiengesellschaft – AG), the obligation must be discharged by the management board under section 76 (1) of the AktG, since this is one of its management responsibilities. If inside information arises in a part of the company that is not authorised to decide on disclosure, the company’s internal organisation must ensure that such information is communicated to the decision-making body without undue delay and examined to determine whether there is an ad hoc disclosure obligation (see also section I.3.4).

Special situations may arise in matters that fall within the area of responsibility of the supervisory board, such as personnel-related decisions affecting the management board. Please refer to section I.3.3.1.1 for more information.

If the inside information refers to a common fund within the meaning of section 1 (10) of the Investment Code (Kapitalanlagegesetzbuch – KAGB), the asset management company that administers the common fund must disclose the inside information.

Inside information subject to the ad hoc disclosure obligation

Inside information

The ad hoc disclosure obligation arises when there is inside information that directly concerns the issuer. Inside information is defined by Article 7 of the MAR. Please refer to the guidance in I.2 in this respect.

Directly concerns the issuer

This requirement clarifies that the issuer is only required to disclose information that concerns it directly. By contrast, it is not required to disclose information of a general nature under the ad hoc disclosure obligation. In addition, the information must concern the issuer itself and not merely the financial instruments issued by it.

Article 17 of the MAR does not specify in any greater detail what is meant by “directly concerns”. However, section 15 (1) sentence 3 of the old version of the WpHG stipulated that inside information directly concerns the issuer in particular if it relates to circumstances that have arisen within its area of activity, such as financial data or forecasts.¹⁴ By contrast, share splits are information arising from the company’s area of activity, but only concern the issuer directly if they affect the company’s net assets, financial position or results of operations. This also applies in the scope of Article 17 of the MAR.

Inside information that arises outside the issuer’s area of activity may also be subject to the ad hoc disclosure obligation (“external circumstances”), such as the receipt of a large order. Other examples are the receipt of a takeover bid or the notification to the issuer of a major shareholder about implementing a squeeze-out, for example because this will be associated with a restructuring, a strategic reorientation or a merger, or if a control and profit and loss transfer agreement is entered into. Other potential cases are decisions by courts or administrative authorities that directly affect the recognition of provisions or make it necessary to adjust forecasts to a considerable extent.

The question of an ad hoc disclosure obligation may also arise in the case of a reallocation of shares (transfer of a large block of shares). However, inside information directly concerning the issuer only arises in specific situations, for example if the reallocation clearly pursues strategic objectives that will influence the future development of the issuer, and the issuer is aware of these strategic objectives, or if the reallocation is expected to have potential effects on the company’s governance.

By contrast, based on the recommendations of the Committee of European Securities Regulators (CESR), the predecessor to ESMA, the following examples of inside information only concern the issuer indirectly:¹⁵

• general market statistics,
• the coming publication of rating agencies’ reports, research, recommendations or suggestions concerning the value of listed financial instruments,
• general interest rate developments, interest rate decisions,
• government’s decisions concerning taxation, regulation, debt management,
• decisions concerning market supervision rules,

• significant measures taken by authorities or other public institutions

  (e.g. information that the competent supervisory authority has started investigations regarding the issuer’s shares (notably the trading) due to a suspected breach of securities trading law regulations does not trigger any ad hoc disclosure obligation),

• decisions concerning the rules governing the composition and calculation of indices,
• decisions taken by stock exchanges, operators of OTC trading platforms and authorities concerning the rules governing the markets,
• buy and sell orders for the issuer’s financial instruments,¹⁶
• a change in trading conditions by the trading venue operator (including change in trading segment, change in the trading mode, e.g. from continuous trading to auction model, change of market maker). By contrast, a decision by the issuer to change the transparency level concerns it directly.

In addition, BaFin generally assumes, for example, that an issuer is only indirectly concerned in the following cases:

• information relating to general economic data, political events, unemployment figures, natural disasters or, for example, changes in oil prices,
• information relating to a change in the situation of a competitor that is of relevance for the issuer (e.g. impending insolvency of a competitor),
• information that only concerns the financial instrument itself, such as the acquisition or disposal of a large block of shares in OTC transactions without any strategic objectives.

Although inside information that does not directly concern the issuer is not subject to a disclosure obligation, it still triggers the prohibitions under Article 14 of the MAR (prohibition of insider dealing and of unlawful disclosure of inside information). However, if it has consequences that directly concern the issuer, these consequences are subject to a disclosure obligation if they have the potential to have a significant effect on prices.

In the case of financial instruments admitted to exchange trading that are directly or indirectly linked to another underlying (e.g. warrants, derivatives), it should be noted that the issuer of the derivative financial instrument is only required to disclose information that concerns it directly and has the potential to have a significant effect on the price of the derivative financial instrument. Accordingly, it is not required to publish inside information of which it becomes aware that only concerns the underlying. However, the situation is different in a case where the issuer of the derivative financial instrument is also the issuer of the underlying.

Conversely, the issuer of a share or a bond is not directly affected by inside information that is not expected to lead to any substantial reaction of the share or bond price, even if such a reaction occurs in the case of individual derivatives issued by third parties that relate to those shares or bonds (see section I.2.1.4.2).

Inside information subject to the ad hoc disclosure obligation in connection with value judgements

A distinction must be made as follows with regard to estimates/assessments by third parties:

As a general rule, estimates by professional market participants, for example in ratings (for bonds) or in analyses/research reports (for shares) are to be considered as circumstances that only concern the issuer indirectly, even if they contain concrete estimates of financial data or a target price for the financial instruments and lead to a change in market expectations. However, the issuer must examine whether the outcome of the rating or the recommendation could result in changes in business developments, for example because funding costs will rise. In turn, this information concerns the issuer directly and triggers an ad hoc disclosure obligation if it has significant effect on the prices.

Existence of inside information in the case of an application for admission to trading

Domestic issuers and MTF issuers are already required by Article 17 of the MAR to disclose inside information if they have merely filed an application to admit their financial instruments to trading. The question arises as to the criteria to be applied in these cases for assessing the potential to have a significant effect on prices with regard to the definition of inside information. In many cases, this question can only be answered on a case-by-case basis. If the financial instruments are already included in another trading segment or are traded on an OTC trading platform, the potential to have a significant effect on prices can be assessed on the basis of this price information. Where a (base) prospectus has already been published (possibly including a price range quoted with reference to a subscription period), an obligation to publish an ad hoc announcement may be established in case of material changes, where such changes, for example, were to trigger the obligation to prepare a supplement to the prospectus or would result in a change in the price range for subscriptions, and these changes are deemed to constitute inside information subject to the ad hoc disclosure obligation. In addition, there may be market assessments of the expected price range or valuations relating to the company, on the basis of which it could be possible to hypothetically put a figure on the potential to have a significant effect on prices.¹⁷ In all other cases, it is not possible to make a conclusive assessment of the ad hoc disclosure obligation at this point.

Overlapping between the ad hoc disclosure obligation and other transparency provisions

Many other legal provisions contain obligations relating to capital market transparency or communication affecting issuers whose financial instruments are admitted to trading on a stock exchange (e.g. notification of significant changes in voting rights, disclosure requirements under the Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz – WpÜG) or the Securities Prospectus Act (Wertpapierprospektgesetz – WpPG), disclosure obligations in connection with share buy-back programmes, transparency provisions relating to an action for annulment). These disclosure and notification obligations do not constitute transparency provisions that take precedence over, or even replace, the ad hoc disclosure obligation. In application of recital (27) of the MAR, one exception to this rule under section 10 (6) of the WpÜG relates to the case where the matter concerns decisions to make a takeover bid. An issuer who discloses its decision to make a bid to acquire securities or to obtain control in line with section 10 (1) in conjunction with section 35 (1) sentence 4 of the WpÜG is therefore not required to publish an additional identical ad hoc disclosure. However, disclosure of inside information under Article 17 of the MAR is not necessary only to the extent that the disclosure under section 10 of the WpÜG was made public. Circumstances prior to the decision are also not covered by section 10 (6) of the WpÜG. Finally, section 10 (6) of the WpÜG is not applicable to the target company; only the bidder is covered by the disclosure obligation set out in section 10 of the WpÜG. However, issuers can examine the extent to which the conditions for delaying disclosure under Article 17(4) of the MAR are fulfilled.

In all cases, issuers must additionally examine whether the information constitutes inside information. If this is the case, and if the relevant provision does not expressly specify that the ad hoc disclosure obligation does not apply in this case, the inside information must be disclosed to the public as soon as possible in the form of an ad hoc disclosure. The ad hoc disclosure must also be made public as soon as possible if the law in question sets out a different disclosure deadline with regard to the transparency requirement contained in that law.

Under certain circumstances, emission allowance market participants are required to simultaneously disclose inside information under Article 17(2) of the MAR and Article 4 of Regulation (EU) No 1227/2011 (REMIT). However, Article 2(2) of Commission Implementing Regulation (EU) 2016/1055 gives emission allowance market participants subject to the obligation under Article 4 of Regulation (EU) No 1227/2011 (REMIT) the option to also use the technical means established there for the purpose of the disclosure under Article 17 of the MAR, provided that the inside information to be disclosed has the same content, and the technical means used for the disclosure ensure that the inside information is communicated to the relevant media. Further information on the disclosure obligations for emission allowance market participants can be found in section I.3.10.4.

Relationship between ad hoc disclosure and standard disclosure requirements

The relationship between ad hoc disclosure and standard disclosure requirements is also highly relevant in practice. As BaFin has already clarified in the past, standard disclosures cannot replace ad hoc disclosures. For this reason, transactions that constitute inside information already trigger an ad hoc disclosure obligation before publication is required by standard disclosure requirements. The same applies to business results.

Examples of inside information subject to a disclosure obligation

Please refer to section I.2.1.5 for examples of inside information subject to a disclosure obligation. It is not possible to provide any generally binding, exhaustive list of inside information that is subject to a disclosure obligation. For this reason, the examples given there also can serve only as recommendations. In the event that one of the cases given there applies, issuers must assess in each individual case whether it is an inside information, which must therefore be disclosed. The examples must therefore not be understood to mean that, if they apply, they automatically have the potential to have a significant effect on prices. Rather, it is always necessary to assess the specific circumstances of the individual case. For example, there is no potential to have a significant effect on prices if, in the specific situation, information has no particular significance for the issuer as a whole (e.g. merger of an insignificant subsidiary). The question of whether information has the potential to have a significant effect on prices will also depend on factors such as the company’s size and structure, its sector, its competitive situation, market expectations, etc., i.e. the information must be material for the issuer. Finally, the inside information must concern the issuer directly (see section I.3.2.2.2).

Footnotes: