31 March 2016 – On 28 January 2016, ESMA published its draft guidelines on the Market Abuse Regulation.
These guidelines deal with (i) the requirements for persons receiving market soundings and (ii) the legitimate interests of issuers to delay disclosure of inside information and situations in which delay of disclosure is likely to mislead the public.
Under the Market Abuse Regulation that will apply as of 3 July 2016, issuers are allowed to delay disclosure of inside information if all of the following conditions are met:
i. Immediate disclosure is likely to prejudice the legitimate interests of the issuer.
ii. The issuer is able to ensure the confidentiality of the information.
iii. Delay of disclosure is not likely to mislead the public.
In its response, European Investors emphasizes that the list of cases where immediate disclosure is likely to prejudice the issuer’s legitimate interests should contain only a limited number of well-defined cases. The list should moreover be considered indicative, meaning that if an issuer finds itself in a situation which corresponds with one of the cases mentioned in the list, this does not automatically mean that a delay is warranted. In other words, its decision to delay disclosure should be based on a thorough case by case assessment.
Further, we believe that a delay in disclosure is likely to mislead the public if it contradicts market’s expectations, regardless of whether these expectations are based on signals set by the issuer.