CopiedFSMA vs Nyrstar: what the ruling means for delayed disclosure and insider lists

European market-abuse enforcement does not happen in isolation. Although MAR applies directly in every EU member state, day-to-day expectations are shaped by how regulators interpret and apply it in real cases. Court of Justice judgments bind all states; ESMA’s Guidelines, Q&A, peer reviews and supervisory convergence reports steer national supervisors; and high-profile NCA decisions often become de facto “soft law” benchmarks that boards, advisers and investors adopt across borders. 

Against that backdrop, the FSMA’s Nyrstar decision matters beyond Belgium. It reinforces a substance-over-form approach: contemporaneous, audit-ready documentation for each delay; immediate insider-list updates that mirror every disclosure-delay decision; and specific, fact-based justifications rather than generic reasons. It also clarifies directors’ personal exposure where list maintenance or delay governance falls short, and tightens expectations for the timing and content of post-event notifications. 

Practical takeaway: treat Article 17 (delayed disclosure) and Article 18 (insider lists) as a single operational control set. Build “real-time” evidence files, align board and adviser workflows to those controls, and assume other NCAs will converge on similar standards through ESMA processes and peer coordination. 

National rulings often have strong effects in other EU states Copied

Given different cases and rulings across the EU, it is important to bear in mind their effects not only strictly legally, but also in practice. 

• EU Market Abuse Regulation (MAR) has full direct effect in each EU state. 
• CJEU interpretations of EU law bind all EU states’ courts (and override conflicting national laws). 
• EC Implementing Technical Standards (ITS) bind all EU states. 
• ESMA Guidelines are not directly binding, but each NCA must comply or explain. 
• ESMA Q&A are not legally binding yet have strong standing in practice. 
• NCA rulings are not binding in other states, but a persuasive ruling that fills an interpretative gap can operate as “soft law,” prompting stricter templates, board procedures and MAR logs across issuers, advisers and investors EU-wide. 

ESMA Copied

ESMA’s Guidelines and Q&A are living documents. When an NCA decision surfaces an operational or evidentiary issue (e.g., incomplete MAR logs, vague delay justifications, lack of contemporaneous timestamps), ESMA may update the Guidelines, integrate Q&A clarifications, open a peer review, or reflect themes in supervisory convergence reports. 

Example: after CONSOB (IT) and AMF (FR) sanctioned vague “legitimate interest” justifications (2022–23), ESMA’s 2023 Q&A clarified that the reason for delay must identify a specific, ongoing event or negotiation. Expect the FSMA/Nyrstar linkage of Articles 17(4) and 18 to feature in coming ESMA convergence outputs. 

NCAs Copied

NCAs monitor each other’s decisions via ESMA’s MAR Supervisory Coordination Network. When one NCA develops a robust evidentiary framework (e.g., requiring “real-time insider-list updates”), others often harmonise to avoid fragmentation. 

Example: after AMF’s Orpea (2024) emphasised contemporaneous insider-list updates, similar expectations appeared in BaFin’s Wirecard follow-ups (2023) and FSMA’s Nyrstar (2025). 

Issuers / investors Copied

Institutional investors and audit committees benchmark governance standards EU-wide. Cross-listed issuers tend to align to the strictest interpretation and often anticipate similar expectations arriving locally. 

Example: after FSMA clarified that each delay decision must trigger a real-time insider-list update, several issuers on Euronext Amsterdam and Paris voluntarily tightened procedures even before identical local guidance existed. 

Examples of guidance spread Copied

• ESMA Q&A (2023 update): insider-list format alone does not prove compliance; regulators assess the control environment. 
• BaFin (DE) on Wirecard (2023): contemporaneous documentation and segregation of “delay justification” files. 
• AMF (FR) on Orpea (2024): mis-timed or incomplete insider-list entries can aggravate delayed disclosure sanctions. 
• FSMA (BE) on Nyrstar (2025): integrates Arts. 17 & 18; insider-list updates must mirror each delay-disclosure decision; expands directors’ liability scope. 

Case study: Analysis of Nyrstar ruling providing added guidance Copied

In short Copied

Compliance is not a check-the-box requirement: delays, insider inclusions and disclosure decisions must be contemporaneously justified, traceable and audit-ready. 

Reinforcement of “substance over form” Copied

Art. 18 requires issuers to maintain accurate insider lists. FSMA (and other regulators) now focus on how lists are maintained and why specific individuals are included or excluded. Merely “formal” lists are unacceptable: authorities examine MAR logs, decision logs, email trails and meeting notes to determine whether individuals were functionally aware of inside information. Those who participate in or influence disclosure-related decisions are insiders even if not yet formally added. Real-time updates are expected, not retroactive corrections after disclosure.

Impact: treat list maintenance as a living process, not a static document. 

Coordinating Art. 17 (delayed disclosure) and Art. 18 (insider lists) Copied

When an issuer opts to delay, all staff, advisers and board members involved in or aware of the rationale must be placed on the list immediately. Failure to do so is an aggravating factor, even where the main infringement concerns the delay itself. 

Impact: each delay decision should automatically trigger an insider-list update with timestamps and reason codes. 

Evidentiary expectations: “demonstrable justification” Copied

While ESMA has long required recording reasons for delay, the FSMA ruling clarifies that regulators will cross-examine contemporaneous documentation (board minutes, emails, draft press releases). Generic statements (e.g., “disclosure would prejudice negotiations”) are insufficient; issuers must document which negotiation, what stage, and what harm would have resulted. Absent such specificity, regulators may presume delay conditions were not met. 

Impact: maintain a “delay file” for each instance containing a decision memo with factual justification, proof of confidentiality controls, and the names of all individuals informed. 

Directors’ and officers’ individual liability clarifications Copied

Art. 12(4) MAR confirms directors who participate in decisions leading to a breach can be individually sanctioned, even when acting through the company. Insider-list omissions are tied to personal responsibility: directors risk administrative fines if, being aware that inside information exists and remains undisclosed, they fail to ensure inclusion of relevant persons on the list. 

Impact: boards approving disclosure delays should receive formal, documented list-update briefings. 

Post-disclosure notification discipline (Art. 17(4) + ITS 2016/1055) Copied

Regulators now audit the timing and content of the post-event notification to the FSMA. “Immediately” means without internal approval delay. The explanation must explicitly reference the three MAR delay conditions and show how each was satisfied. 

Impact: issuers should be audit-ready throughout and avoid generic notices. 

Executive summary Copied

• EU-wide effect in practice: while only CJEU case law formally binds all states, ESMA tools and influential NCA rulings rapidly shape common expectations across the EU. 
• Nyrstar signal: each delay decision must trigger an immediate insider-list update supported by contemporaneous, specific evidence. 
• Substance over form: formal templates are insufficient; regulators test whether insiders were functionally aware and whether controls worked in real time. 
• Evidentiary standard: maintain a “delay file” with decision memo, confidentiality measures and named individuals that demonstrates the three MAR conditions. 
• Accountability: directors can face individual sanctions for governance failures tied to delay and list omissions; boards should require list-update briefings at each delay. 
• Notifications: post-disclosure notices must be immediate and address each delay condition; generic explanations are inadequate.