ESMA Updates Q&As Relating to the Market Abuse Regulation

On October 1, the European Securities and Markets Authority (ESMA) published an updated version of its sets of question and answer documents (Q&As) on the Market Abuse Regulation (MAR). ESMA has added three new questions and answers relating to the delay of the disclosure of inside information by a credit or financial institution to preserve financial stability under Article 17(5) of MAR:

• Q&A 5.3 explains that where a credit or financial institution, as issuer, intends to resort to the delayed disclosure of inside information under Article 17(5) of MAR, it should provide evidence to the national competent authority (NCA) that the Article 17(5) conditions are met. Assessment of the conditions should be as complete as possible to the best of the issuer’s knowledge, taking into account (1) the risk of undermining the financial stability of the issuer and the financial system; 2i) public interest; and (3) the confidentiality of the information.

• Q&A 5.4 explains that the credit or financial institution notifying the NCA of its intention to resort to the financial stability delay should provide its assessment on the expected length of the delay and details of expected trigger events. Likewise, if the NCA consents to the delay regarding its own assessment, the issuer should update the NCA when it becomes aware of new elements or events that may affect the duration of the delay.

• Q&A 5.5 explains that where the conditions under Article 17(5) are not met and the NCA does not consent to the delay, the credit or financial institution must disclose the inside information immediately as provided in Article 17(6) of MAR and cannot resort to the delay of disclosure under Article 17(4) of MAR.

ESMA’s updated Q&As on MAR are available here.

ESMA Updates Q&As Relating to the Benchmarks Regulation

On September 27, the European Securities and Markets Authority (ESMA) published an updated version of its questions and answers (Q&As) on the Benchmarks Regulation (BMR).

ESMA has added the following seven new questions and answers, all dated September 26:

• Q&A 5.8 clarifies when financial instruments traded on a systematic internalizer are within scope of the BMR;

• Q&A 5.9 sets out when banks issuing certificates are users of benchmarks;

• Q&A 5.10 explains why the net asset value of investment funds should be considered input data and not benchmarks;

• Q&A 7.2 confirms that a single application for endorsement can include a family of benchmarks;

• Q&A 7.3 sets out ESMA’s view that benchmark statements should be published in a language that is accepted by the national competent authority of the relevant member state; and

• Q&As 8.2 and 8.3 concern written plans for cessation or material changes of a benchmark under Article 28(2) of the BMR and, specifically, when the written plan to be produced by benchmark users should be considered “robust” and how the plan should be reflected in the contractual relationship with clients.

ESMA first published the Q&As in July 2017 and most recently updated them in July 2018.

ESMA’s updated Q&As on the BMR are available here.