Ad hoc disclosures

In the year under review, issuers published a total of 2,197 ad hoc disclosures (previous year: 1,755; see Figure 11 "Ad hoc disclosures and exemptions"), thus continuing the significant rising trend that was beginning to emerge in the second half of 2016 – brought about by the entry into force of the Market Abuse Regulation (MAR). Approximately 1,350 issuers, including 530 issuers of securities, were required to make ad hoc disclosures in 2017. However, issuers listed on the regulated unofficial market (Freiverkehr) or on a multilateral trading facility (MTF) are only subject to the publication requirement if they have consented to or authorised the listing. As from 3 January 2018, this also applies to issuers whose securities are listed with consent or approval on an organised trading facility (OTF). In line with the rise in the number of ad hoc disclosures, the number of notifications of a delay in publishing the disclosure also continued to increase (484; previous year: 403). In accordance with Article 17(4) of the Market Abuse Regulation, an issuer can temporarily delay the disclosure of inside information on the basis of a delay decision.

Figure 11 Ad hoc disclosures and exemptions

Ad hoc disclosures and exemptions 

BaFin

Areas in BaFin's focus

In 2017, BaFin again focused on the implementation of the Market Abuse Regulation and the accompanying legal provisions. There were queries, for example, about the language in which MTF issuers may publish documents, and also about which authority had a duty of supervision in particular cases. Another important issue was the assessment of intermediate steps in an extended process, for example in relation to mergers and acquisitions. These intermediate steps, too, and not just the end result, may constitute inside information and therefore require disclosure to the public.

At two workshops, BaFin provided information on the publication of inside information and how to handle it. In preparation for extending the ad hoc disclosure requirement for participants in the market for emission allowances as from 3 January 2018 – entry into force of these provisions of the Market Abuse Regulation had been postponed by one year – it published a number of questions and answers (FAQs) on its website, www.bafin.de. Article 17(2) of the Market Abuse Regulation requires every emission allowance market participant to disclose inside information concerning emission allowances which it holds in respect of its business. This includes the planned or unplanned unavailability of an installation. However, this obligation only applies if its installations or aviation activities have emissions that exceed specific minimum thresholds.

In its FAQs, BaFin explains, among other things, how this minimum threshold are to be calculated and what inside information may be subject to the disclosure requirement. Another important issue is the disclosure privilege: emission allowance market participants that are already required under Article 4 of Regulation (EU) 1212/2011 (REMIT) to disclose inside information – this refers to wholesale energy companies – do not have to make any additional disclosures of inside information in accordance with Article 17(2) of the Market Abuse Regulation, providing this is essentially the same information and there is a guarantee that the inside information is disclosed to the relevant media.

Managers' transactions

Executives (e.g. members of management boards or supervisory boards) of issuers admitted to a regulated market or an MTF as well as persons closely related to such individuals reported a total of 2,789 securities transactions in 2017 (previous year: 2,879; see Figure 12 "Reports of managers' transactions" on page xy). Following a sharp increase in the number of reports in 2016, the 2017 figure was on a level with the previous year.

Figure 12 Reports of managers' transactions

Reports of managers' transactions

BaFin

BaFin examined the reports to verify whether the three-day period within which managers' own-account transactions have to be notified had been complied with (145 cases), whether the 30-day prohibition on trading prior to the publication of financial figures had been observed (7 cases), and whether the managers had been informed of their reporting obligations by the issuer (2 cases). As a result of the Market Abuse Regulation's entry into force on 3 July 2016, the time period allowed for meeting the reporting obligation has been cut from five to three business days, and issuers are now required to inform their managers about the legal reporting obligations. BaFin pursued 3 cases further in administrative fine proceedings and discontinued 28 cases.

There continues to be a very large number of sometimes complex interpretive questions, which – if they are of general relevance – BaFin collates in a continually updated catalogue of FAQs; the FAQs are available on the BaFin website, www.bafin.de. BaFin does so to ensure that the legal standards are applied consistently. In addition, it wants to give market participants guidance for action by providing practical examples.