On 7 May 2025, the European Securities and Markets Authority (ESMA) published its Final Report on, among other things, technical advice concerning EU Market Abuse Regulation (MAR) provisions that have been amended pursuant to the EU Listing Act. These amendments will be effective on 5 June 2026 and relate to:
- disclosure of inside information in a protracted process; and
- conditions to delay disclosure of inside information.
ESMA’s technical advice seeks to enhance harmonisation with respect to these matters. In our view, ESMA’s proposal provides useful guidance, particularly insofar as it is more concrete than guidance that a number of competent national authorities have historically provided. The European Commission is required to adopt delegated acts related to ESMA’s technical advice by July 2026.
With respect to issuers with two tier board structures, as in the case of German corporations, ESMA has helpfully clarified that when the moment of disclosure refers to a decision taken by the issuer, it refers to the moment when supervisory board has adopted the decision. Whenever the supervisory board is to endorse the decision of the management board, the issuer’s internal decision-making process should foresee for the decision of the first to be taken as soon as possible to ensure a timely disclosure.
In response to respondents’ concerns raised in the consultation process, ESMA has removed takeovers from the list initially proposed in its Consultation Paper on this topic. In this regard, EMSA acknowledged that communications on bids before their public announcement could conflict with Takeover Directive provisions, which already provide specific safeguards for market integrity, including under implementing national laws.
CONDITIONS TO DELAY DISCLOSURE OF INSIDE INFORMATION
The current requirement under Article 17(4)(b) of MAR that the delay of disclosure of inside information to the public must not be likely to mislead the public will be replaced with a requirement that the inside information intended to be delayed must not be in contrast with the latest public announcement or other communication by the issuer concerning the same matter. The European Commission is empowered to adopt a delegated act to set out a non-exhaustive list of situations in which this applies.
In its Final Report, ESMA has proposed the adoption of a non-exhaustive list specifying that situations in which inside information must not be in contrast with the latest public announcement or other communication apply to inside information regarding:
- a material change to forecasted financial results or business objectives previously announced by the issuer (e.g. profit warnings or earnings surprises);
- a material change to the environmental or social impact of a project or product that the issuer previously publicly announced (e.g. environmental targets likely not to be met);
- the financial viability of an issuer where materially different information regarding its financial strength was publicly announced (e.g. need for capital increase or extraordinary bonds issuance);
- the results or the deadlines of a product or a project in development not being met where the issuer publicly announced those results or deadlines; and
- a material change to a previously publicly announced capital structure operation (e.g. significant modification in the issuance of financial instruments).
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