AIM Regulation has published an Inside AIM statement confirming its position on the issue of the 30-day closed period requirement, together with some FAQs for AIM companies and their nomads on the disclosure obligations within MAR and the AIM Rules.
The MAR disclosure obligations apply to financial instruments admitted to all multilateral trading facilities, as well as regulated markets. This means that these obligations apply to AIM companies admitted to trading on AIM accordingly.
The key disclosure obligations in MAR relate to the disclosure of inside information and disclosure of deals by persons discharging managerial responsibilities (PDMRs) and closely associated persons. MAR also introduced mandatory close period rules.
CLOSED PERIOD RULES
Under Article 19(11) of MAR, there is a prohibition on dealing in the shares and debt instruments of the issuer (or linked financial instruments) by PDMRs during a ‘closed period’ save in certain specified circumstances.
Under the previous market abuse regime, the public announcement of preliminary results ended the relevant ‘close period’ and the prohibition on dealing therefore also ended. Under MAR, there has been some confusion as to whether issuers that announce preliminary results need to impose closed periods before the announcement of preliminary results, before publication of the year-end report, or both.
On 26 May 2016, the FCA published a statement of its supervisory approach, namely that, pending clarification by the European Commission and ESMA, the FCA will continue to take the view that where an issuer announces preliminary results, the 30-day closed period is immediately before the preliminary results are announced. However, this can only apply if the preliminary announcement contains all inside information expected to be included in the year-end report.
The FCA’s supervisory approach was subsequently confirmed by ESMA on 13 July 2016 in its updated version of its Q&As on MAR. In the answer to new question two, ESMA confirms that the announcement of preliminary financial results agreed by the management body of the issuer will constitute the announcement marking the end date of the closed period under MAR. However, this will only be the case where those preliminary financial results contain all the key information relating to the financial figures expected to be included in the year-end report.
On 2 August 2016, AIM Regulation published an Inside AIM update confirming its position on the closed period requirement, namely by referring AIM companies to ESMA's updated Q&A on MAR above. AIM Regulation does not propose to amend the AIM Rules but continues to support the use of Listing Rule 9.7A.1 (preliminary statement of annual results) by AIM companies as a benchmark in relation to the preparation of a preliminary results announcement.
AIM Regulation has also published some FAQs on the disclosure obligations within MAR and the AIM Rules. The FAQs set out where to find various implementing technical standards for MAR, how to notify delayed disclosure of inside information under MAR and where to find more information on MAR. There are 21 questions, which include the following:
- Question 6 - whether an AIM company will have to deal with both the FCA and AIM Regulation. AIM Regulation notes that there is overlap between the AIM Rules and MAR but it is not able to opine on MAR but will work closely with the FCA as competent authority and share any information which might be relevant to its consideration of MAR.
- Question 8 - that compliance with MAR will not automatically satisfy the AIM company's obligations under the AIM Rules and vice versa
- Questions 13 and 14 - who is a PDMR and how a PDMR makes notifications to the FCA.
- Question 15 - the difference between inside information under MAR and price sensitive information under the AIM Rules.
- Question 17- why an AIM company has to have a dealing policy when premium listed companies do not have to have one. AIM Regulation considers the obligation under AIM Rule 21 to have a reasonable and effective dealing policy to be a sensible approach for AIM companies and in line with the AIM Rule 31 requirement for AIM companies to have sufficient procedures, resources and controls to enable it to comply with their AIM Rule obligations.
- Question 18 - what AIM Regulation considers to be a reasonable and effective dealing policy. AIM companies and their nominated advisers should adopt the same approach in respect of other regulatory systems and controls and consider what is meaningful for the particular company to ensure effective controls.
- Question 19 - this confirms AIM Regulation’s response in respect of closed periods, as summarised directly above.