Topic Information obligations for issuers Performance of duties and coming into possession of inside information
Article from Issuer Guidelines published by the Federal Financial Supervisory Authority
As soon as they have come into possession of inside information, all employees and persons who perform other duties must be included in the insider lists maintained by issuers and service providers. As before, this means that people must also be included in the insider lists who are working on the basis of other contractual arrangements or because they are in purely constructive employment relationships.
The previous wording “access to inside information as part of their function” no longer applies. The MAR sets out that persons must be included in insider lists who have access to inside information on the basis of an employment contract or because they otherwise perform tasks for the issuer.
It follows from the purpose of the insider list, however, that the person to be included cannot have come into the possession of the information accidentally or coincidentally. This also follows from the illustrative list of advisers, accountants or credit rating agencies in Article 18 of the MAR. These are people who specifically – and hence through the nature of their work – come into contact with inside information. For example, there is still no requirement to include IT staff whose administration rights give them access to internal email traffic or the databases of the person obliged to maintain the insider list in the insider list because they only coincidentally have access to the content of emails or databases related to inside information. The duties of this group of employees do not include dealing with the content of those files, emails, documents, etc.
If persons have unlawfully gained access to inside information and if this is known to the person obliged to maintain the insider list, those persons must also be included in the insider list.
To be included in the list, it is not necessary for the person concerned to have actually come into possession of specific inside information. Rather, it is sufficient if the job description of the persons concerned means that they can come into contact with inside information in the specific situation.
