GENERAL CORPORATE

FCA clarification of ‘closed periods’ and preliminary results under Article 19(11) Market Abuse Regulation 2016 (“MAR”)

In accordance with Article 19(11) MAR, which will come into force on 3 July 2016, a person discharging managerial responsibilities within an issuer is prohibited (other than in certain specified circumstances) from conducting any transactions on his own account, or for the account of a third party, which relate to the shares, debt instruments, related derivatives or other related financial instruments of the issuer for a closed period of 30 days before the obligatory announcement of an interim financial report or a year end report.

Since the publication of Article 19(11) MAR, there has been confusion amongst issuers as to whether the 30 day closed period should be applied by issuers:

  1. before preliminary results;
  2. before the end of year results; or
  3. before both the preliminary results and then again before the end of year results.

The FCA has therefore issued supervisory advice that states that when:

  1. an issuer announces preliminary results; and
  2. the preliminary report contains all the inside information that would be required under a year end report

the 30 day closed period should apply for the 30 days preceding the announcement of the preliminary results. However issuers should note that the FCA has highlighted that this interpretation of Article 19(11) MAR is still being discussed at a European level and that the FCA’s advice is therefore subject to change pending confirmation from the European Commission and ESMA.

Impact: Until the European Commission or ESMA give further clarification, the 30 day closed period established under Article 19(11) MAR should be considered to start 30 days before a preliminary results announcement.

OTHER ITEMS

  • ESMA has released a statement that establishes that certain provisions of MAR will be delayed, and will not come into force, until January 2018 following the announced delay of MiFID II. The delays will only affect limited aspects of MAR, including the requirements set out under Articles  4(2) and 4(3) that concern the publication of notices received by competent authorities under Article 4(1). The requirement to notify financial instruments reference data under Article 4(1) remains applicable from 3 July 2016.
  • Companies House has published a blog entry that addresses key questions arising from the replacement of annual returns with confirmation statements (as addressed in previous editions of the M&A Weekly). In the new online guide, Companies House highlights the following key points:
    • companies’ PSC registers will form part of the new confirmation statement and will need to be submitted as part of the first confirmation statement filed by every company;
    • filing a confirmation statement will cost the same as filing an annual return (£13 if filed online and £40 if filed in hardcopy). This fee will only have to be paid once every 12 months and during that 12 month period a company can file as many confirmation statements as they wish;
    • companies will need to file confirmation statements after 30 June 2016 on the day that their annual returns would have been due. Please note that the 28 day grace period that formerly applied to annual return deadlines will be reduced to 14 days for confirmation statements.
  • The European Commission has published additional  non-binding Q&As in relation to the Statutory Audit Directive that is due to come in to force on 17 June 2016 (previously covered here). The latest Q&A document gives further clarification on a range of topics, including:
    • how an entity becomes a public-interest entity (“PIE”);
    • how the transitional regime established by the Directive is being implemented across Europe; and
    • how the rules introduced by the new provision will affect the composition of Audit Committees.