On 30 May 2017, the European Securities and Markets Authority ("ESMA") published an updated version of its Q&A on MAR. Changes since the last version include:
- A new question on whether credit institutions are required under MAR to systematically publish the results of their Pillar II assessment in relation to the disclosure of inside information.
- Confirmation that circumstances surrounding delay of disclosure under Article 17(4) or notification of delay under Article 17(5) will need to be assessed on a case-by-case basis by the relevant issuer.
- In the context of the Supervisory Review and Evaluation Process to be conducted in accordance with Article 97 of Directive 2013/36/EU, whenever a credit institution subject to the market abuse regime becomes aware of information, notably as a result of a Pillar II assessment, it must evaluate whether such information constitutes inside information; if it does, then MAR provisions apply to the consequential disclosure requirements, and the credit institution must publicly disclose the inside information as early as possible, subject to the MAR provisions on delaying disclosure.
- A reminder that if any publication, which does not come from the issuer complying with its disclosure obligations, or a rumour in the market, relates explicitly to inside information, the issuer must react and respond to the publication or rumour if it is accurate enough to indicate that the confidentiality of the inside information can no longer be assured. This response should be made publicly available in the same way as communication of inside information and without delay.
- A new question on whether blanket order cancellation policies issued upon the discovery of a person being in possession of inside information is compliant with the ban on insider dealing under MAR. ESMA's response notes that there is a rebuttable presumption under Article 8(1) of MAR that "the use of inside information by cancelling or amending an order placed before the person concerned possessed inside information" constitutes insider dealing. However, if the cancellation was done without the use of inside information then this will not constitute insider dealing. Whether or not this is the case must be assessed on a case by case basis. The full text of the Q&A is available at:
- https://www.esma.europa.eu/sites/default/files/library/esma70-145-111_qa_on_mar.pdf
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