Article 5 of the MAR provides exemptions from the prohibition of insider dealing and the prohibition of market manipulation for buy-back programmes and stabilisation measures. The provisions of Article 5(1) of the MAR and Article 5(4) of the MAR constitute grounds for ruling out elements of an offence.

Under Article 5(1) of the MAR, under certain conditions the prohibitions in Articles 14 and 15 of the MAR do not apply to trading in own shares in buy-back programmes. One of these conditions is that the full details of the programme are disclosed prior to the start of trading. The information to be adequately publicly disclosed (Article 2(1) of Commission Delegated Regulation (EU) 2016/1052)¹ can also be made public in the ad hoc disclosure on the implementation of the buy-back programme, provided that it is in any case necessary and made public as soon as possible in accordance with Article 17(1) of the MAR. Transactions in connection with the buy-back programme must also be notified to the competent authority of the trading venue and subsequently disclosed to the public. Adequate limits with regard to price and volume must be complied with. Only the purposes set out in Article 5(2) of the MAR qualify for the safe harbour.

Under Article 5(4) of the MAR, the prohibitions set out in Articles 14 and 15 of the MAR additionally do not apply to trading in securities or associated instruments for the stabilisation of securities where the stabilisation is carried out over a limited period, relevant information about the stabilisation is disclosed and notified to the competent authority of the trading venue in accordance with paragraph (5) and adequate limits with regard to price are complied with.

The conditions to be complied with for share buy-back programmes and stabilisation measures under Article 5(1) and (4) of the MAR are clarified by Commission Delegated Regulation (EU) 2016/1052.

With regard to a significant subscription offer, the decisive factor, following on from the former legal position (Article 2(9) of Commission Regulation (EC) No 2273/2003)² is that the measures must be made public. This allows publicly announced private placements of new shares to fall under the scope of the safe harbour rules. By contrast, block trades that are strictly private transactions are not considered to be initial or secondary offerings of securities in this sense and are therefore not covered by the safe harbour rule (see the third sentence of recital (6) of Commission Delegated Regulation (EU) 2016/1052).

Capital increases by already listed companies fall under the concept of secondary offerings of shares. Under point (b) of Article 5(1) of Commission Delegated Regulation (EU) 2016/1052, the stabilisation period in the case of secondary offerings begins on the date of the adequate public disclosure of the final price of the securities (placement price).

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