If an issuer or an emission allowance market participant has delayed disclosure in accordance with Article 17(4) of the MAR, it is generally required to inform the competent authority under Article 6 of Commission Implementing Regulation (EU) 2016/522 about the delay immediately after the information has been made public and provide a written explanation of how the conditions for the delay were met (first sentence of the third subparagraph of Article 17(4) of the MAR).

Article 6 of Commission Delegated Regulation (EU) 2016/522 stipulates that the competent authority of the member state where the issuer is registered is responsible for receiving the notification of delay (see point (a) of paragraph (1)). If the issuer does not have any financial instruments that are admitted to trading in the member state in which it has its registered office, or if these are not traded with its consent and if it has not requested admission to trading, point (b) of Article 6(2) designates in this case the competent authority of the member state in which the financial instruments were admitted to trading for the first time or are traded with the consent of the issuer, or where the issuer for the first time requested admission of the financial instruments to trading on a trading venue. In the case of admission to trading on trading venues in more than one member state, responsibility is governed by the most liquid market (see the second subparagraph of Article 6(2) of Commission Delegated Regulation (EU) 2016/522).

The written declaration of delay must be notified to BaFin in any event¹ and not solely on request (second sentence of the third subparagraph of Article 17(4) of the MAR). The third subparagraph of Article 17(4) of the MAR is supplemented by Article 4 of Commission Implementing Regulation (EU) 2016/1055, which contains details about the nature of the notification of delayed disclosure and the required written explanation to the competent authority; at a national level, it is supplemented by section 7 of the WpAV.

Under Article 4(3) of Commission Implementing Regulation (EU) 2016/1055, the notification of delay must contain the following information:

• the identity of the issuer or emission allowance market participant: full legal name,
• the identity of the person making the notification: name, surname, position within the issuer or emission allowance market participant,
• the contact details of the person making the notification: professional email address and phone number,
• identification of the publicly disclosed inside information that was subject to delayed disclosure: title of the disclosure statement; the reference number where the system used to disseminate the inside information assigns one; date and time of the public disclosure of the inside information,
• date and time of the decision to delay the disclosure of inside information,
• the identity of all persons responsible for the decision to delay the public disclosure of inside information.

Section 7 of the WpAV additionally requires the following information to be disclosed:

• all the dates at which the validity of the reasons were reviewed,
• the first names and surnames as well as the business addresses and telephone numbers of all persons involved in making the decision about the delay.

In addition, issuers and emission allowance market participants must ensure the permanent availability of the following information in an easily accessible format (Article 4(1) of Commission Implementing Regulation (EU) 2016/1055):

• the dates and times when:

  • the inside information first existed within the issuer or the emission allowance market participant,
  • the decision to delay the disclosure of inside information was made,
  • the issuer or emission allowance market participant is likely to disclose the inside information,

• the identity of the persons within the issuer or emission allowance market participant responsible for:

  • making the decision to delay disclosure and deciding on the start of the delay and its likely end,
  • ensuring the ongoing monitoring of the conditions for the delay,
  • making the decision to publicly disclose the inside information,
  • providing the requested information about the delay and the written explanation to the competent authority,

• evidence of the initial fulfilment of the conditions referred to in Article 17(4) of the MAR, and of any change of this fulfilment during the delay period, including:

  • the information barriers which have been put in place internally and with regard to third parties to prevent access to inside information by persons other than those who require it for the normal exercise of their employment, profession or duties within the issuer or emission allowance market participant,
  • the arrangements put in place to disclose the relevant inside information as soon as possible where the confidentiality is no longer ensured.

Under section 26 (1) of the WpHG, there is no longer an obligation to simultaneously provide the notification of delay together with the advance notification. Nevertheless, BaFin also considers the obligation under the third subparagraph of Article 17(4) of the MAR to be met if the notification of delay continues to be provided at the same time as the advance notification. If the notification of delay is provided after the inside information has been made public, it can be sent by fax or by post, as long as it is transmitted immediately after the inside information has been made public. BaFin has made available the following fax number for transmitting the notification:

+ 49 (0)228/4108-200

The extent of the explanation depends on the circumstances in individual cases. As a general rule, however, explanation should be sufficiently informative to enable BaFin to assess the legality of the delay without the need for further inquiries. Consequently, generally worded reasons (e.g. requirement for governing body approval if the management board had to wait for the approval of the supervisory board) are not sufficient. The explanation should enable BaFin to understand the reasons for assuming that the issuer had a legitimate interest.

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