European Securities and Markets Authority Launches Consultation on Revised Guidelines for Disclosure of Inside Information Under EU Market Abuse Regulation

The European Securities and Markets Authority has launched a consultation on proposed revisions to the Guidelines for when issuers can delay the disclosure of inside information in accordance with the EU Market Abuse Regulation. Responses to the consultation should be submitted by August 27, 2021. ESMA intends to publish a final report including its amended Guidelines at the end of 2021.
 
Issuers of financial instruments that fall within the scope of the EU MAR must publicly disclose, as soon as possible, inside information that directly concerns them. "Inside information" is information that: (i) is not public; (ii) directly or indirectly relates to one or more issuers of financial instruments; (iii) is of a precise nature; and (iv) is likely, if made public, to have a significant effect on the relevant prices of those financial instruments or related derivative financial instruments.

However, issuers are permitted to delay disclosure if: 

• Immediate disclosure is likely to prejudice an issuer's legitimate interest;
• Delay of disclosure is not likely to mislead the public; and
• The issuer is able to ensure the confidentiality of the information.

ESMA is consulting on possible additions to the EU MAR Guidelines that provide an indicative list of "legitimate interests" for these purposes. ESMA's consultation proposes to expand the Guidelines by:
 

• Adding to the list of legitimate interests intended redemptions, reductions and repurchases of own funds by issuers that are pending regulatory authorization;
• Adding to the list of legitimate interests draft Supervisory Review and Evaluation Process decisions made by EU national regulators, which form part of the EU's implementation of Pillar 2 of the Basel Framework; and
• Clarifying that Pillar 2 Capital Requirements and Pillar 2 Capital Guidance are likely to qualify as "inside information" and would require public disclosure as soon as possible, unless the conditions for delayed disclosure are satisfied.

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