Further to the entry into force of the Listing Act, ESMA published various final reports providing technical advice and updated its Q&As. These include:
- ESMA's final report on the technical advice concerning MAR and MiFID II SME growth markets
- ESMA's final report on the technical advice concerning the Prospectus Regulation and the RTS updating the commission delegated regulation on metadata
- ESMA's final report on civil prospectus liability, and
- ESMA’s updates to Q&A 2259 under the Prospectus Regulation.
Meanwhile, Luxembourg adopted the law of 3 July 2025, a significant step in aligning its national framework with the Listing Act's provisions.
Final Report on the technical advice concerning MAR and MiFID II SME Growth Market
On 7 May 2025, ESMA published its highly anticipated final report on technical advice in respect of the Market Abuse Regulation (MAR) and the part of MiFID II regarding SME growth markets. This report reflects ESMA’s assessment and incorporates feedback received during a public consultation launched in December 2024. The advice aims to facilitate the effective implementation of the Listing Act, specifically related to these regulations.
In relation to MAR, the final report examines how inside information should be disclosed in a protracted process, providing crucial clarification.
Disclosure Timing
ESMA noted that the amendments introduced by the Listing Act to the disclosure framework for protracted processes are expected to limit the use of the delay mechanism, as the obligation to disclose arises only once the events or circumstances become final and certain.
Protracted processes defined
ESMA clarified that a "protracted process" is defined as “a series of actions, steps, or decisions spread in time which need to be performed, at least in part by the issuer, in order to achieve an intended objective or result”.
Internal Processes
- Capital increases, dividends, or management changes: disclosure shall be made when the issuer’s governing body formally decides, even if shareholder approval is pending.
- Two-tier systems: disclosure shall be made after supervisory board approval.
- Management changes: for key management changes, disclosure should happen at the time of the formal appointment or dismissal decision or upon contract signing if no formal board decision occurs. Resignations (e.g. of a CEO) are considered one-off events and must be disclosed immediately unless preceded by negotiations.
- Third-party transactions (e.g., mergers): disclosure shall occur at the signing of a binding agreement, not just when a decision to proceed is made. If shareholder approval is required, disclosure shall happen at the governing body’s decision.
- Processes involving public authorities: ESMA confirms that issuers must disclose the filing of a request with a public authority if it constitutes inside information, unless they validly delay disclosure. For administrative proceedings, disclosure should occur as soon as the issuer is formally informed of the authority’s final decision, even if earlier exchanges involved inside information. In judicial proceedings, ESMA clarifies that issuers cannot wait for a court decision to become final and non-appealable before disclosing inside information.
- Takeovers: issuers must follow the specific disclosure rules in the Takeover Directive and relevant national laws.
- Other Clarifications: ESMA also provided proposals on financial reports, profit warnings, biotech trials, credit institutions and provided a non-exhaustive list of protracted processes.
With respect to conditions to delay disclosure of inside information, ESMA explained that issuers should primarily assess inside information against their latest public announcement on the same matter. In limited cases, issuers may consider prior communications to give a full picture of the issue. ESMA also provided guidance on dealing with potential contrasts between the inside information to be delayed and the latest issuer’s communication.
With respect to SME growth markets, ESMA proposed to keep the criteria which a multilateral trading facility should fulfil to register as a SME growth market unchanged, as they are fit for purpose and provide sufficient flexibility. In addition, ESMA, inter alia, suggested to limit the working capital statement requirement to share issuances only and proposed requiring that annual financial reports be audited.
Final report on the technical advice concerning the Prospectus Regulation and the RTS updating the Commission Delegated Regulation on metadata
On 12 June 2025, ESMA published its final report on technical advice pertaining to the Prospectus Regulation and the Commission Delegated Regulation ("CDR)" on metadata. This reflects ESMA’s assessment and feedback received during a public consultation launched in December 2024.
Key highlights from the final report include:
- Flexible format for debt prospectuses: the strict format and sequence shall not apply to debt base prospectuses but only to standalone prospectuses relating to IPOs or “plain vanilla” debt prospectuses prepared by a single issuer.
- Streamlined non-equity disclosure: ESMA has revised the single non-equity registration document (Annex 6) and non-equity securities note (Annex 13) clearly indicating whether the provisions apply to retail only or wholesale only.
- Proposed ESG disclosure: ESMA proposed new dedicated ESG disclosure annexes for non-equity securities advertised with ESG factors or pursuing ESG objectives. It clarified that the term “advertised” shall be read broadly so as to include both written and oral communications.
- Clarified scrutiny and approval: ESMA provided detailed advice on the criteria and procedures for the scrutiny and approval of prospectuses.
- Metadata alignment for ESAP: ESMA updated the technical standards on metadata to align with changes introduced by the Listing Act and regarding the implementation of the European Single Access Point (ESAP).
ESMA Q&A 2259
A significant point of clarity for issuers has emerged with ESMA's update to its Prospectus Regulation Q&As, specifically Q&A 2259. This guidance directly addresses the interaction between the Listing Act's allowance for incorporating future financial information by reference (under Article 19(1)(b) of the Prospectus Regulation) and the standing obligation to publish a supplement (under Article 23 of the Prospectus Regulation). ESMA confirms “The obligation to produce a supplement under Article 23 of the Prospectus Regulation shall not apply to new annual or interim financial information when it is incorporated by reference under Article 19(1b)”.
Final report with advice concerning civil prospectus liability
In line with further changes introduced by the Regulation (EU) 2024/2809 amending the Prospectus Regulation (the “Prospectus Amending Regulation”) as part of the Listing Act, the European Commission (the “EC”) was called upon to assess whether further harmonisation of the provisions on prospectus liability is warranted and, if so, to consider amendments to those liability provisions. The EC mandated ESMA to provide technical advice on civil liability regarding the information given in prospectuses to include an assessment and recommendations on whether further harmonisation should be considered.
ESMA's final report on civil prospectus liability, released in June 2025, offers a comprehensive review of liability regimes across EU Member States, highlighting key takeaways for the EC's assessment, particularly:
- National variations
Considerable differences persist among Member States regarding who can claim damages, the standard of culpability, damage calculation, burden of proof, and limitation periods.
- Liability not the primary barrier
Notably, the majority of respondents expressed that distinctions in national civil prospectus liability are not the paramount factor impeding cross-border capital market activities. Other factors, such as tax and administrative burdens, alongside cultural differences and a general lack of investment culture, are considered more influential.
- No immediate harmonisation proposed
While acknowledging variations, ESMA does not recommend immediate harmonisation of Article 11 of the Prospectus Regulation. However, it points to two areas for future discussion should EC intend to contemplate the reform:
- safe harbour provisions for forward-looking statements to encourage more disclosure, and
- harmonised rules for determining applicable law in liability claims.
New law of 3 July 2025 on financial markets
The recently enacted law of 3 July 2025 (the "New Law") which was published on 8 July 2025 and which entered into force on 10 July 2025:
- implements Regulation (EU) 2024/791 (the "MiFIR Amending Regulation"), and
- transposes into Luxembourg law Directive (EU) 2024/790 (the "MiFID II Amending Directive"), Directive (EU) 2024/2811 (the "Listing Act Directive") and Directive (EU) 2023/2864 (the "ESAP Directive").
As we outlined in our previous newsletter when the draft was first submitted to the Luxembourg Parliament (Chambre des Députés), this New Law amends several key pieces of Luxembourg legislation: the Luxembourg law of 5 April 1993 on financial sector (the "Financial Sector Law"), the Luxembourg law of 11 January 2008 on transparency requirements for issuers (the "Transparency Law") and the Luxembourg law of 30 May 2018 on markets in financial instruments (the "MiFID Law") . There were no significant changes between the initial draft law (Draft Law No. 8498) and the final adopted version.
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