On January 28, 2016, ESMA published proposed Guidelines under the Market Abuse Regulation. The consultation paper covers proposed Guidelines addressed to persons receiving a market sounding and Guidelines for issuers and emission allowance market participants on delaying disclosure of inside information. The MAR will apply directly across the EU from July 3, 2016. The proposed Guidelines for persons receiving a market sounding set out: (i) the factors that the recipient must take into account when information is disclosed to them as part of a market sounding for them to assess whether the information is inside information; (ii) the steps that a recipient should take into account when information is disclosed to them in order to comply with MAR; and (iii) the records a recipient needs to maintain to demonstrate their compliance with MAR. ESMA has already submitted final draft technical standards to the European Commission on market soundings. These technical standards are yet to be adopted into EU law. ESMA’s proposed Guidelines may need to be changed depending on the final form of those technical standards as ESMA has based the proposed Guidelines on the standards.

ESMA’s second set of proposed Guidelines cover the legitimate interests of issuers and emission allowance market participants to delay the disclosure of inside information and situations in which the delay of disclosure is likely to mislead the public. Under MAR, issuers are required to inform the public as soon as possible of information which directly concerns the issuer. However, such disclosure may be delayed if certain criteria are met, including that the delay protects a legitimate interest of the issuer, that the information remains confidential and that procedures are put in place to ensure this is the case. ESMA’s proposed Guidelines include a non-exhaustive list of the legitimate interests of an issuer that may be prejudiced by immediate disclosure of inside information and situations in which delay of disclosure is likely to mislead the public. Responses to the consultation are due by March 31, 2016. ESMA is expected to finalize the Guidelines by early Q3 2016.

ESMA’s consultation paper is available at: https://www.esma.europa.eu/press-news/esma-news/esma-consults-mar-guidelinesregarding-market-soundings-and-delayed-disclosure and ESMA’s final draft technical standards are available at: http://finreg.shearman.com/european-securities-an-markets-authority-publis