The EACB welcomes the opportunity to comment on the ESMA draft Review of MAR Guidelines on delay in the disclosure of inside information and interactions with prudential supervision.
As a general comment we would like to underline that the timing of the consultation, with publication and deadline within the peak of the holiday season for six weeks, greatly affects the possibility for the industry and other stakeholders to provide input on a rather relevant issue.
We would also question the fact that the review of MAR GL, which resulted in the MAR Review report dated 23 September 2020 | ESMA70-156-2391, has resulted in clear indications that require an amendment of these ESMA Guidelines.
Under 226 of 184.108.40.206 of this MAR Review report it is stated: “ESMA deems that no amendments to the conditions to delay disclosure of inside information are necessary.” Although under 228 of 220.127.116.11 ESMA indicates: “… In light of this and considering the outcome of the consultation, ESMA is keen to consider a revision of its guidelines, in order to provide further clarity on the conditions that need to be met to delay disclosure of inside information and provide further practical examples in which disclosure may be delayed.”, ESMA then concludes under 244 of 18.104.22.168 as follows: “With reference to the interaction between the obligation to disclose inside information under MAR and other requirements set out in the regulatory framework for credit institutions and investment firms, as indicated above, no major points were raised in the consultation. Considering the relevance of this topic, ESMA is conducting further research together with other European authorities, in order to assess if further guidance to market participants is needed.”
Furthermore, we would like to emphasize that the mandate of ESMA to issue these Guidelines is pursuant to article 17 paragraph 11 limited to establishing a non-exhaustive list of legitimate interest of issuers, and of situations in which delay of disclosure of inside information is likely to mislead the public, as referred to in article 17 paragraph 4 under (a.) respectively under (b.). Therefore, ESMA is not mandated to pre-determine (or introduce very strong assumptions) what information qualifies as inside information as meant in article 7 MAR. We therefore believe the proposed new Guidelines go beyond ESMA’s mandate.