Topic Information obligations for issuers Ad hoc disclosure and prohibitions of insider dealing
Article from Issuer Guidelines published by the Federal Financial Supervisory Authority
The obligation to disclose inside information contained in the directly applicable Regulation (EU) No 596/2014 (Market Abuse Regulation – MAR)1 (Article 17 of the MAR, “ad hoc disclosure”) and the prohibition of insider dealing and of the unlawful disclosure of inside information (Article 14 of the MAR), together with Commission Implementing Regulation (EU) 2016/1055,2 Commission Delegated Regulation (EU) 2016/522,3 Commission Implementing Regulation (EU) 2016/3474 and sections 26 (1), 119 and 120 of the Securities Trading Act (Wertpapierhandelsgesetz – WpHG) constitute the legal framework for handling inside information and trading in financial instruments. These provisions are supplemented by various guidelines issued by the European Securities and Markets Authority (ESMA).5 Relevant commentaries are also provided in ESMA’s Questions and Answers (Q&A)6 on the MAR. BaFin’s FAQs published on Articles 17, 18 and 19 of the MAR are contained in this part of the Issuer Guidelines. Where this has happened, those FAQs have been deleted.7
Under the requirements referred to above, issuers of financial instruments must disclose inside information that affects them directly as soon as possible. As a general principle, any person who has access to insider information may not use it for trading in financial instruments, regardless of the sources from which that information was obtained. The provisions also govern the delay of disclosure of inside information and its communication. The MAR requires any person who comes into contact with inside information to handle that information responsibly.
The following guidance starts by describing the financial instruments to which the MAR applies. If this is followed by an explanation of the conditions on which the existence of inside information must be presumed, this guidance also applies, with the necessary modifications, to the disclosure of inside information (Article 17 of the MAR) and to the prohibition of insider dealing and disclosure (Article 14 of the MAR). If any special requirements arise (e.g. Article 17 of the MAR requires issuers only to inform the public of inside information that directly concerns that issuer; by contrast, the prohibition of insider dealing and disclosure within the meaning of Article 14 of the MAR also covers inside information that only indirectly affects the issuer), they are explained in the following in the corresponding chapter on ad hoc disclosure or on prohibitions of insider dealing.
The chapter is divided into the following sections:
Footnotes:
- 1 Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, OJ L 173, p. 1, amended by Regulation (EU) 2016/1033 of the European Parliament and of the Council of 23 June 2016, OJ L 175 p. 1.
- 2 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.
- 3 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.
- 4 Commission Implementing Regulation (EU) 2016/347 of 10 March 2016 laying down implementing technical standards with regard to the precise format of insider lists and for updating insider lists in accordance with Regulation (EU) No 596/2014 of the European Parliament and of the Council OJ L 65, p. 49.
- 5 MAR Guidelines, Delay in the disclosure of inside information (ESMA/2016/1478), MAR Guidelines, Persons receiving market soundings (ESMA/2016/1477), MAR Guidelines, Information relating to commodity derivatives markets or related spot markets for the purpose of the definition of inside information on commodity derivatives (ESMA/2016/1480); see also Final Report, Guidelines on the Market Abuse Regulation – market soundings and delay of disclosure of inside information (ESMA/2016/1130).
- 6 Questions and Answers On the Market Abuse Regulation (ESMA70-145-111).
- 7 Before future revisions of the Issuer Guidelines, BaFin reserves the right to communicate any updates in the form of FAQs.
