Introduction

On 24 September 2020, the European Securities and Markets Authority (ESMA) published a review report of the Market Abuse Regulation (MAR). 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.

Background

The report covers the topics mentioned in Article 38 of MAR which requires the Commission to present a report to the European Parliament and the Council to assess various provisions of MAR. These include: the appropriateness of introducing common rules on the need for all Member States to provide for administrative sanctions for insider dealing and market manipulation; the definition of inside information; the appropriateness of the trading prohibition for persons discharging managerial responsibilities (PDMRs) and the appropriateness on the level of certain thresholds for the notification of managers’ transactions; the possibility of establishing a cross-market order book surveillance framework and the scope of the benchmark provisions. The report also covers a set of connected topics that arose from the Commission’s mandate on the scope of MAR including buy-back programmes, the delayed disclosure of inside information, the usefulness of insider lists, different aspects of PDMR notification requirements and cross-border enforcement of sanctions. Also, the report covers certain issues closely linked to the aforementioned topics.

Recommendations

In its report ESMA proposes targeted amendments to MAR, including on the following issues where it makes recommendations on:

• Market soundings – clarify that the MAR requirements represent an obligation for disclosing market participants that, if complied with, will protect them from the allegation of having unlawfully disclosed inside information.
• Benchmark provisions and the interplay between MAR and collective investment undertakings – clarify the responsibility of management companies in relation to the disclosure of inside information.
• Withholding tax reclaim schemes – removing the legal limitations for Member State competent authorities to exchange information with tax authorities.
• In relation to spot FX contracts, ESMA to perform further analysis once the revision of the FX Global Code has been finalised.

Guidance

In the report ESMA also suggests additional guidance in the following areas:

• Inside information and disclosure – ESMA will issue further guidance in relation to the application of the definition and for specific scenarios concerning delayed disclosure.
• Pre-hedging – the report identifies factors which may be considered when assessing if a specific pre-hedging conduct poses risks of market abuse and of violation of conduct rules. ESMA may assess pre-hedging in the future, considering specific circumstances such as its importance for illiquid instruments or the consequences of pre-hedging activities on the markets.