On September 23rd, the European Securities and Markets Authority (ESMA) published a set of outcomes and recommendations on the Market Abuse Regulation. The report has the objective to review the functionalities of MAR since its implementation in 2016 and draft suggestions to improve the regulation. The report is based on a 2019 consultation and covers buy-back programmes, the delayed disclosure of inside information, the usefulness of insider lists, managers’ transactions, the retention period of personal data among other topics.
Background on the Market Abuse Regulation
The increase of the global financial markets brought new trading platforms and technologies, giving new possibilities for individuals to manipulate markets and invest in the possession of privileged information.
The Market Abuse Regulation (MAR) was designed to make financial markets safer and transparent, in addition, to improve confidence in the integrity of the European markets, increase investor protection and encourage greater cross-border cooperation. MAR set criminal sanctions for market abuse, including market manipulation, insider dealing and unlawful disclosure of inside information. Since the regulation started, in 2016, firms have noticed pressure from regulators and an increase on the number of investigations, especially due to the Covid crisis. For instance, 61 measures were imposed in the Netherlands, according to the ESMA "mapping exercise on the administrative and criminal sanctions imposed under Articles 14 and 15 of MAR".
ESMA Recommendations
On the report, ESMA makes recommendations to the European Commission’s (EC) and points out a few issues with recommendations, including:
- Market soundings – clarify that the MAR requirements represent an obligation for disclosing market participants that, if complied with, will protect them from the allegation of having unlawfully disclosed inside information
- Benchmark provisions and the interplay between MAR and collective investment undertakings – clarify the responsibility of management companies in relation to the disclosure of inside information
- Withholding tax reclaim schemes – removing the legal limitations for NCAs to exchange information with tax authorities
- In relation to spot FX contracts, ESMA concludes that it is necessary to perform further analysis once the revision of the FX Global Code has been finalised.
Insider Lists Guidance
According to the report, insider lists continue to be a key tool in market abuse investigations. During the investigations ESMA found insider lists feedback positive and understand that “insider lists also contribute to make informed decisions in relation to personal account dealing trades, to investigate alerts following an employee trading warning, to check possible wall crossing and/or inappropriate disclosure”. Along with the recommendations, ESMA highlights that firms should already have systems and controls to manage insider lists and protect material non-public information (MNPI) as part of their regular processes.
In conclusion, ESMA recommends maintaining the insider lists regime in MAR but suggests a few amendments, including (1) actual access versus potential access to inside information and (2) further clarification of which persons should be subject to the obligation to draw up and maintain insider lists.
The report concludes that the Market Abuse Regulation was effective and worked well in the last 4 years and is fit for purpose. The conclusions and recommendations were built on the top of extensive feedback from market participants and the Securities and Markets Stakeholder Group (SMSG).
To read the full report, visit ESMA.europe.eu
