ESMA publishes Final Report on changes to MAR inside information disclosure rules

On 7 May 2025, the European Securities and Markets Authority (ESMA) published its Final Report on, among other things, technical advice concerning EU Market Abuse Regulation (MAR) provisions that have been amended pursuant to the EU Listing Act. These amendments will be effective on 5 June 2026 and relate to:

disclosure of inside information in a protracted process; and
conditions to delay disclosure of inside information.

ESMA’s technical advice seeks to enhance harmonisation with respect to these matters. In our view, ESMA’s proposal provides useful guidance, particularly insofar as it is more concrete than guidance that a number of competent national authorities have historically provided. The European Commission is required to adopt delegated acts related to ESMA’s technical advice by July 2026.

Protracted process	Final circumstance / event	Moment as soon as possible after which disclosure is to be made
Agreements	Signing of agreement	Signing, or parties’ governing bodies taking decision to propose agreement to their shareholders
Mergers	Approval of draft terms of merger	Governing bodies of merging companies’ approval of draft terms
Acquisition or disposal of assets	Signing of agreement	Signing
Major corporate reorganisations	Decision on corporate reorganisation	Decision by issuer’s governing body
Termination of material agreement	Decision to terminate
Capital increase	Decision to issue
Share buyback	Decision to purchase
Conversion of instruments	Decision to convert
Dividends	Decision to make shareholder proposal
Postponement or cancellation of interest or redemption payments	Decision to postpone or cancel
Change of management	Decision to change management
Significant amendments to articles of incorporation or by-laws	Decision to amend
Insolvency	Insolvency declaration
Financial reports or interim financial reports	Acknowledgement or approval of financial results	Acknowledgement or approval by issuer’s governing body
Forecasts	Acknowledgement or approval of forecasts	Acknowledgement or approval by issuer’s governing body
Application for a licence or authorisation	Application for a licence or authorisation	Issuer’s submission of application to public authority
Application for recognition of intellectual property rights	Application for recognition of intellectual property rights
Application for a licence to commercialise a product	Application for a licence to commercialise a product
Granting or withdrawal of licence or authorisation	Granting or withdrawal of licence or authorisation	Issuer’s receipt of formal notification
Participation in public procurement process	Award of contract
Obtaining authorisation to commercialise a product	Authorisation of product commercialisation
Recognition of intellectual property rights	Notification of recognition
Medical/clinical trials for pharmaceutical products	Medical trials conclusions	Issuer’s conclusion of medical trials
Authorisation to commercialise medical/pharmaceutical products	Authorisation to commercialise medical/pharmaceutical products	Issuer’s receipt of authority’s decision
Pre-Insolvency/Supervisory review and evaluation process (SREP) restructuring proceedings	Formal decision to enter proceedings	In case of court-supervised proceedings, final decision of issuer’s governing body to file for pre-insolvency proceedings Otherwise, signing of agreement between issuer’s governing body and creditors, or other arrangements
Supervisory review and evaluation process (SREP)	Formal decision of Prudential Competent Authority	Credit institution’s receipt of final SREP decision
Reduction of own funds	Formal decision of Prudential Competent Authority	Credit institution’s being notified of reduction of funds authorisation
Preparation for resolution action	Decision of resolution authority to take resolution action in accordance with Article 82(2) of BRRD or Article 64(2) of IRRD	Publication of decision of resolution authority
Normal insolvency proceedings of credit institution in accordance with applicable national law	Decision of relevant authority	Notification of authority’s decision
Administrative proceedings	Decision of competent authority	Issuer’s receipt of formal notification by competent authority of final decision
Precautionary measures within judicial proceeding	Decision by authority or court	Issuer’s receipt of notification of decision
Judicial Proceedings	Decision by authority or court
Proceedings for quantification of sanctions	Decision on sanction
Delisting	Decision of delisting	In case of voluntarily delisting, formal decision of issuer’s governing body In case of decision by competent authority or stock exchange, receipt of notice of delisting

With respect to issuers with two tier board structures, as in the case of German corporations, ESMA has helpfully clarified that when the moment of disclosure refers to a decision taken by the issuer, it refers to the moment when supervisory board has adopted the decision. Whenever the supervisory board is to endorse the decision of the management board, the issuer’s internal decision-making process should foresee for the decision of the first to be taken as soon as possible to ensure a timely disclosure.

In response to respondents’ concerns raised in the consultation process, ESMA has removed takeovers from the list initially proposed in its Consultation Paper on this topic. In this regard, EMSA acknowledged that communications on bids before their public announcement could conflict with Takeover Directive provisions, which already provide specific safeguards for market integrity, including under implementing national laws.

Conditions to delay disclosure of inside information

The current requirement under Article 17(4)(b) of MAR that the delay of disclosure of inside information to the public must not be likely to mislead the public will be replaced with a requirement that the inside information intended to be delayed must not be in contrast with the latest public announcement or other communication by the issuer concerning the same matter. The European Commission is empowered to adopt a delegated act to set out a non-exhaustive list of situations in which this applies.

In its Final Report, ESMA has proposed the adoption of a non-exhaustive list specifying that situations in which inside information must not be in contrast with the latest public announcement or other communication apply to inside information regarding:

a material change to forecasted financial results or business objectives previously announced by the issuer (e.g. profit warnings or earnings surprises);
a material change to the environmental or social impact of a project or product that the issuer previously publicly announced (e.g. environmental targets likely not to be met);
the financial viability of an issuer where materially different information regarding its financial strength was publicly announced (e.g. need for capital increase or extraordinary bonds issuance);
the results or the deadlines of a product or a project in development not being met where the issuer publicly announced those results or deadlines; and
a material change to a previously publicly announced capital structure operation (e.g. significant modification in the issuance of financial instruments).