On 15 July 2021, ESMA published its consultation paper primarily proposing additions to its guidelines list regarding delayed disclosure of inside information.

Issuers can delay disclosure when:

(i) immediate disclosure is likely to prejudice an issuer’s legitimate interest,

(ii) the delay is unlikely to mislead the public and

(iii) the issuer can also ensure the confidentiality of the information.

The current, 2016, ESMA guidelines list on (i) and (ii) is legally speaking merely indicative and non-exhaustive. In practice however, it has notably come to function to some extent as a “safe haven” checklist for many issuers; i.e. when to delay disclosure.

The 2021 consultation paper now proposes 2 main additions to the (i) list.

a) redemptions, reductions and repurchases of own funds, pending the supervisor’s authorisation; and

b) pillar 2 Supervisory Review and Evaluation Process (SREP) decisions (e.g. a banking specific requirement) pending the supervisor’s decision – whereby a separate section also outlines that SREP Pillar 2 Capital Requirements (P2R) and Pillar 2 Capital Guidance (P2G) are likely inside information.

The consultation is open until 27 August 2021 and Logwise takes part in this process. ESMA expects to publish a final report including its amended MAR guidelines by the end of 2021.

Notably, ESMA also published a new (8 August 2021) version of its Q&A – which however entails extremely few amendments, basically exclusively related to the Credit Rating Agencies Regulation.

In connection to the consultation, we refer also to our related 2020 article, in particular to the heading “Next Steps” therein and the ESMA implementing technical standards(ITS) on Insider Lists (for SMEGM issuers). Covid-19 has clearly resulted in very substantial delays concerning the much needed and anticipated MAR amendments and clarifications. We are closely following the developments.

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