ESMA published a revised MAR Q&A on 29th March 2019.
The Q&A lists a number of non-exhaustive cases where inside information may arise in the context of a CIU (including ETFs), stating that ultimately the decision must be made on a case by case basis, and that the below listed scenarios may not constitute inside information in all cases.
- Any situation with significant impact (appreciation or depreciation) on the valuation of the CIU assets and, and as Result, on the value of the CIU’s assets;
- where the CIU has been affected by fraud, theft or an adverse tax ruling;
- Unexpected circumstances in the relation/redemption of units of a CIS including:
- Any situation under which the CIU cannot issue/redeem units
- creation of excessive or insufficient units due to a material mistake.
- Events that will directly affect the liquidity of the market in units of an ETF arising from events
- Failure or delay of a counterparty to an OTC derivative impacting the return or the risk of the CIU;
- Failure or delay of a counterparty in a securities lending transaction;
- Issues relating to the total or partial liquidation of the CIU’s assets; such as:
- • Immediate insolvency or termination of the CIU, or a sub-fund where the CIU is an umbrella fund;
- • Partial liquidation of the CIU’s units; or
- • Modalities and payment terms preceding the liquidation or delisting of the CIU.
The updated Q&A also confirms that the obligations to disclose inside information without delay (and the obligations where a decision is taken by an issuer to delay publication) equally apply to collective investment schemes with no legal personality, with the obligations being discharged by the asset manager.