The European Securities and Markets Authority ("ESMA") recently updated its question and answer document on the Market Abuse Regulation ("MAR"). The updated document sees the introduction of two new questions and their corresponding answers which, broadly, provide that:

  1. If an issuer identifies a piece of 'inside information' while preparing its financial guidance (which it may be required to provide under the Transparency Directive or national legislation), then the issuer will need to immediately publish that inside information irrespective of the date of publication of the financial guidance, unless its disclosure is delayed in terms of article 17 of MAR. ESMA also clarified that the position is also the same when the issuer identifies a piece of inside information while preparing its yearly, or half-yearly, financial statements.
  2. Issuers may take into consideration market analysts' expectations (consensus), when considering whether an event or items in a financial report or the first financial guidance for a given financial year may constitute inside information, since all available information has to be considered to determine whether a piece of information may constitute 'inside information' in accordance with article 7 of MAR.

In its Q&A, ESMA also remarked that in terms of its guidelines, delayed disclosure of inside information is likely to mislead the public "where the inside information is in contrast with the market's expectations, where such expectations are based on signals that the issuer has previously sent to the market, such as interviews, roadshows or any other type of communication organized by the issuer or with its approval".

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