Following the announcement by the European Security and Markets Authority ("ESMA") on the 15th July 2021 that it had published a consultation paper in relation to the review of its guidelines on the delay of disclosure of inside information under the Market Abuse Regulation (Regulation (EU) 596/2014) ("MAR"), in particular in relation to the banking sector (ESMA70-156-3934) (please see our news item on this here), on the 5th January 2022 ESMA issued its final report (ESMA70-159-4966) and amended MAR guidelines.
The amended MAR guidelines are supplementing the list of legitimate interests of issuers for delaying public disclosure of inside information, and seek to assist issuers in assessing whether they meet the conditions to delay the disclosure of inside information in terms of MAR.
Insofar as prudential supervision is concerned, the guidelines also introduce clarifications on the institutions' case-by-case assessment as to whether they would be in possession of inside information in relation to the institution-specific Supervisory Review and Evaluation Process (SREP) decisions received from the institution's prudential competent authority, with particular reference to the Pillar 2 Capital Requirements and Pillar 2 Capital Guidance.
In particular, the amended guidelines clarify that:
- In the case of redemptions, reductions and repurchases of own funds subject to supervisory authorization, an institution would have a legitimate interest to delay the disclosure of inside information until the prudential competent authority has authorized the transaction;
- There is a legitimate interest for the institution to delay the disclosure of the draft SREP decision informally communicated to that institution until that decision becomes final following the completion of the prudential competent authority's decision-making process;
- In respect of the content of the SREP decisions, the Pillar 2 Capital Requirements are expected to be considered as inside information and as highly likely to be price sensitive while the Pillar 2 Capital Guidance may only be inside information. The guidelines give the following examples when price sensitivity is expected:
- When the difference between the Pillar 2 Capital Guidance and the institution's level of capital is not minor and is likely to involve a major reaction by the institution, such as a capital increase; and
- The institution's Pillar 2 Capital Guidance is not in line with market expectations, so a price impact can be expected.
The amended guidelines are expected to become applicable 2 months after the publication of the translations of the final report.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.