On 5 January 2022, ESMA published its final report presenting the amended version of the ESMA guidelines (the "Guidelines") on delayed disclosure of inside information, specifically addressing the interplay between the issuers’ obligation to disclose inside information under Regulation (EU) 596/2014 of 16 April 2014 on market abuse (“MAR”) and the EU prudential supervisory framework applicable to them.
Under Article 17 of the MAR, issuers are obliged to inform the public as soon as possible of inside information. However, the disclosure of inside information may be delayed if certain conditions are met. Under Article 17(4) of MAR, issuers can delay the disclosure of inside information when the following conditions are cumulatively met:
- immediate disclosure is likely to prejudice an issuer’s legitimate interest;
- delay of disclosure is not likely to mislead the public; and
- the issuer is able to ensure the confidentiality of that information.
In line with its mandate under the MAR, ESMA has previously issued Guidelines providing a non-exhaustive and indicative list of legitimate interests of the issuers that are likely to be prejudiced by immediate disclosure of inside information, and hence, if all other conditions are met, disclosure can be delayed.
Key changes to the Guidelines
The amended Guidelines add two new cases to the existing list of legitimate interests:
- the case where the issuer is an institution subject to Regulation (EU) 575/2013 of 26 June 2013 on prudential requirements for credit institutions (“CRR”) and a decision to carry out redemptions, reductions and repurchases of own funds has been taken but is not yet authorised by the competent authority;
- the case where the issuer is an institution subject to prudential supervision under Directive 2013/36/EU of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions (“CRD”) and has received a draft supervisory review and evaluation process (“SREP)” decision or preliminary information related thereto, which will become final at a later stage upon completion of the decision-making process of the competent authority.
Moreover, a separate section is introduced to the Guidelines clarifying that Pillar 2 capital requirements (“P2R”) are highly likely to meet the definition of inside information under MAR, while Pillar 2 capital guidance (“P2G”) may be inside information under MAR, whenever assessed as price sensitive. Where assessed to be inside information, P2G will, of course, require public disclosure as soon as possible, unless the conditions for delayed disclosure under MAR are met.
A translation procedure will follow, with the Guidelines entering into force two months after the publication of translations.