New implementing regulation on insider lists
On 14 July 2022 and having regard to Regulation (EU) 596/2014 on market abuse ("MAR"), the Commission Implementing Regulation (EU) 2022/1210 of 13 July 2022 laying down implementing of technical standards for the application of MAR with regard to the format of insider lists and their updates ("New Implementing Regulation") was published.
The New Implementing Regulation repealed Implementing Regulation (EU) 2016/347 (the "Former Implementing Regulation").
Like its predecessor, the New Implementing Regulation provides templates for the insider lists which are required to be kept by issuers pursuant to MAR.
As regards the general format of the standard insider lists required pursuant to Article 18(1) of MAR, there have been no significant amendments to the template (provided as Template 1 in Annex 1). As regards the permanent insiders section of the insider lists, the template (provided as Template 2 in Annex 1), there have been no significant changes. However, the New Implementing Regulation provides more explanation on who can be included in the "permanent insiders" section in the insider lists by describing them as persons, who due to the nature of their function or position have access to all inside information at all times.
MAR was amended most recently by Regulation (EU) 2019/2115 (the "2019 MAR Amending Regulation") which introduced (in the first subparagraph of Article 18(6) of MAR) less stringent requirements for issuers whose financial instruments are admitted to trading on an SME growth market (“SME growth market issuers”) by limiting the persons listed who, due to the nature of their function or position within the issuers, have regular access to inside information. A new template insider list is provided as Template 1 in Annex 2 to the New Implementing Regulation.
The 2019 MAR Amending Regulation allows Member States, where justified, to require SME growth market issuers to include in their insider lists all persons who have access to inside information. However, in that case, the disclosure regime should be lighter which is reflected in the new template provided as Template 2 in Annex 2 to the New Implementing Regulation. In a similar vein, a "lighter" template for the permanent section of the insider list of SME growth market issuers is provided as Template 3 in Annex 2.
The New Implementing Regulation is in effect since 3 August 2022 and therefore the relevant updated templates for insider lists should be used by issuers as from that date.
Updated Q&A on inside information
On 23 September 2022, ESMA updated its Questions and Answers ("Q&A") on MAR to add two new questions regarding disclosure of inside information.
With this latest update of the Q&A, ESMA clarifies:
- that if a piece of information is identified by an issuer as inside information within the meaning of Article 7 of MAR while preparing the financial guidance, half-year or annual reports, the issuer is obliged to publish that information without delay (unless delayed disclosure under Article 17 applies), and
- that issuers must take into consideration all available information when determining whether a piece of information constitutes inside information within the meaning of Article 7 of MAR and in that context, all available information would include the consensus of market analysts’ expectations, if applicable.
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