The European Securities and Markets Authority (ESMA) has issued final guidelines clarifying the implementation of the Market Abuse Regulation (MAR) for persons receiving market soundings and on delayed disclosure of inside information.
Market soundings are a communication of information, prior to the announcement of a transaction, in order to gauge the interest of potential investors in the possible transaction and the conditions relating to it such as its potential size or pricing, to one or more potential investors. ESMA’s final guidelines detail the:
- factors that such persons are to take into account when information is disclosed to them as part of a market sounding in order for them to assess whether the information amounts to inside information;
- steps that such persons are to take if inside information has been disclosed to them; and
- records that such persons are to maintain in order to demonstrate that they have complied with MAR.
On legitimate interests of issuers on delayed disclosure of inside information and on the possible situations in which the delay of disclosure is likely to mislead the public, ESMA’s guidelines provide a non-exhaustive and indicative list of:
- legitimate interests of the issuer that are likely to be prejudiced by immediate disclosure of inside information; and
- situations in which delay of disclosure is likely to mislead the public.
Within two months of the issuance of the different language versions of these guidelines, Member State national competent authorities (NCAs) will have to confirm whether or not they intend to comply with the guidelines. In the event that a NCA does not comply or does not intend to comply, it will have to inform ESMA, stating its reasons.