After considerable feedback, the FCA has published Primary Market Bulletin No.23 with finalised guidance on periodic financial information and inside information and commentary on MiFID II compliance and the UK IPO reforms.
The Market Abuse Regulation (MAR) requires an issuer to inform the public as soon as possible of inside information which directly concerns that issuer (Article 17(1)). An issuer may, on its own responsibility, delay disclosure to the public of inside information provided that all of the following conditions are met:
- immediate disclosure is likely to prejudice the legitimate interests of the issuer;
- delay of disclosure is not likely to mislead the public; and
- the issuer is able to ensure the confidentiality of that information.
ESMA has published a non-exhaustive indicative list of legitimate interests of issuers that are likely to be prejudiced by immediate disclosure of inside information.
Periodic financial information
Whether periodic financial information is inside information has been an area of considerable debate since MAR came into force. In preparing periodic financial reports, commentary from Primary Market Bulletin No.23 and in the revised Technical Note confirms the following:
- issuers should assess on an ‘ongoing’ and case-by-case basis whether the information they hold fulfils the criteria of being inside information and they should record the assessment process. It is not acceptable for a firm to take a position at a given point in time and to remain of that view without further assessment, situations evolve and firms must reassess as required. Who conducts these assessments is for issuers to decide and it could be board/disclosure committees or individuals at other levels in the firm;
- when making the assessment, issuers should exercise judgement and good faith and start from the assumption that information relating to financial results could constitute inside information. A blanket approach should not be taken and issuers should not consider information in financial reports to be ‘always or never’ inside information;
- the FCA considers the cases where immediate disclosure would be likely to prejudice the legitimate interests of an issuer to include circumstances where “an issuer is in the process of preparing a periodic financial report and immediate public disclosure of information to be included in the report would impact on the orderly production and release of the report and could result in the incorrect assessment of the information by the public”. In many cases, an issuer will be able to draft an announcement enabling the correct assessment by the public of the inside information but there will be some instances where such an announcement, without publication of the full financial report, could risk misleading the market. In such situations a delay may be justified but this should not be the default position; and
- in delaying the disclosure of inside information, an issuer must be able to ensure the confidentiality of the information in question.
Primary Market Bulletin No.23 also notes:
- shortcomings in firms’ adoption of the MiFID II requirements on informing and engaging with the issuer regarding risk management transactions and justifying allocation decisions;
- that stakeholders were largely supportive of the UK IPO reforms but firms are reminded to consider their obligations to manage conflicts of interest where research analysts play a role in providing an internal-facing due diligence advisory service prior to underwriting/placing mandates being awarded; and
- that, subject to Brexit, from the end of April 2019 onwards the FCA will be able to receive prospectuses drafted under the new Prospectus Regulation ( summary of the prospectus changes ) and intended for approval on or after 21 July 2019.