The provisions of the Market Abuse Regulation – Regulation 596/2014 of the European Parliament and of the Council (MAR) required the European Commission to present a report to the European Parliament and the Council on certain areas of MAR.
In this context, on September 23, 2020, following the Consultation Paper published in October 2019 (CP), the European Securities and Markets Authority (ESMA) issued a report to assess various provisions of MAR (the Report), building upon feedback received from market participants representatives in reply to the CP. The Report is the first in-depth review of the functioning of MAR since its implementation in 2016, and its recommendations will feed into the European Commission’s review of MAR.
ESMA is proposing recommendations, guidance and amendments in a number of key areas. This alert summarizes aspects of the Report which we found to be of particular interest for issuers and other market players in Romania, since they either consolidate practice or signal future legislative changes relevant for them.
SUMMARY
INSIDERS LISTS
First a reminder of what article 18 of MAR says on the topic:
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Issuers and any person acting on their behalf or on their account must draw up a list (insiders list) of all persons who have access to inside information and who:
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Are working for them under a contract of employment, or
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Are otherwise performing tasks through which they have access to inside information.
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Issuers shall take all reasonable steps to ensure that persons included in the list acknowledge in writing the legal and regulatory duties entailed.
What the Report says:
Actual access versus potential access:
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Best knowledge qualifier: Issuers and persons acting on their behalf or on their account (and in due course, persons performing tasks for the issuer through which they had access to inside information) should include in their respective insider lists the persons who, to the best of their knowledge, have effectively accessed a piece of inside information.
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Potential access is acceptable: Where in doubt about the effective access of one or several individuals after the application of the systems and controls currently in place, the inclusion of persons who could potentially have accessed a piece of inside information in the insider lists is acceptable.
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Less personal data:
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The issuer can include in the insiders’ list only one natural contact person per legal entity acting on its behalf or on its account (or performing tasks for the issuer) through which they got access to inside information;
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Similarly, persons acting on behalf or on the account of the issuer (or performing tasks for the issuer through which they got access to inside information) should be allowed to include in their own insiders list only one contact person per external provider.
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Article 18 of MAR is to be amended to clarify that the responsibility of the issuer strictly refers to the inclusion in its insider list of (i) persons working for it under a contract of employment, and (ii) its external service providers, with the caveat that when the external service providers are legal entities, one contact natural person for each external service provider is sufficient.
Which persons will be obliged to draw up and maintain insider lists? The “performance of tasks for the issuer” and “acting on behalf or on the account of the issuer” are not terms defined in MAR.
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“Persons acting on behalf or on the account” of the issuer - includes persons engaged in a fiduciary relationship with the issuer whereby they act as its agents under its written or oral mandate.
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Persons “performing a task for the issuer”
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Include any professional service (other than acting as agent) providers to the issuer (directly or through other persons), if they have access to a piece of inside information;
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It is not possible to establish a closed-end list of cases that would fall under this category;
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The following are considered to qualify as such (broadening to a certain extent the list as previously construed):
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Auditors (appointed by the issuer)
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Notaries
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Consultants
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Credit institutions and financial intermediaries involved in financing relevant deals or in the offering of the issuer’s financial instruments
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Financial intermediaries acting under the rules of a trading venue in an independent role (this latter category could include liquidity providers, specialists or firms assisting a company through the admission process).
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The reference to “persons acting on behalf or on the account of the issuer” in Article 18(1) of MAR could be complemented by a reference to external service providers, with the addition of “or otherwise performing tasks for the issuer, through which they got access to a piece of inside information and shared it with other persons”.
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That reference could be completed with a statement clarifying that such a reference encompasses the performance of any professional services for the issuer, directly or indirectly or for persons acting on its behalf or on its account, including the activities performed by auditors, notaries and the other categories mentioned above.
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MAR should set out the obligation of the issuers to inform the persons performing tasks for them (and also to those acting on their behalf or on their account) if a piece of information qualifies as inside information, to enable them to establish their own lists.
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DEFINITION OF “INSIDE INFORMATION”
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The definition does not need to be changed;
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ESMA stands ready to issue guidance on the definition with respect to specific scenarios, for instance, financial reporting and front running. In the latter case ESMA expressed a need to broaden the scope of the relevant persons to cover orders conveyed by persons other than clients (potentially, this could include institutional investors, which have information about orders from other institutional investors).
DELAYED DISCLOSURE
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No change to the legal text is needed;
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ESMA will issue clarifications on protracted processes, financial statements and rumors.
MARKET SOUNDING
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The current market sounding regime is compulsory and should not be changed; it represents an obligation for disclosing market participants that, if complied with, will protect them from the allegation of having unlawfully disclosed inside information;
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Certain clarifications should be made in relation to soundings where inside information is passed on:
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The requirement to cleanse contained in Article 11(6) of MAR could be waived wherever the transaction is publicly announced;
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Where recording facilities are not available, written minutes of the sounding agreed and exchanged via email or other electronic means should suffice, with no need to have a more formal exchange of signatures;
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The requirement to repeat reminders of the wall-crossing requirements could be removed for follow up calls after the initial one.
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The process now reverts to the Commission to consider legislative proposals to amend MAR.
To discuss how the ESMA MAR REVIEW REPORT may affect you or to know more about the subjects covered by this publication, please contact us.
By Loredana Chitu, Partner, Dentons