ESMA launches consultation to streamline and simplify MAR guidelines

In preparation for the implementation of certain provisions of the Listing Act on 5 June 2026, ESMA is seeking input on its proposals to align the MAR guidelines with the new disclosure regime as amended by the Listing Act.

From 5 June 2026, issuers will no longer be required to disclose inside information regarding intermediate steps in a protracted process pursuant to Article 17(1) of MAR. Under the new regime, the obligation to disclose inside information in a protracted process will not arise until the "final event" has occurred, provided the inside information has been kept confidential during the protracted process. If the inside information has leaked during the protracted process, the issuer will still be under an obligation to make a disclosure.

For further information on the European Commission's delegated regulation regarding disclosure in protracted processes, please refer to our post on the matter. 

As the current ESMA guidelines on the delay of disclosure of inside information relate to the pre-Listing Act regime, the guidelines must be updated to reflect the new regime.

Issuers are expected to use the delayed disclosure mechanism under Article 17(4) of MAR less frequently once the new regime under the Listing Act enters into force.

ESMA proposes to remove most of the current examples from its guidelines on delayed disclosure, as these relate to delay of disclosure in protracted processes. As mentioned above, under the new regime, such processes will not be subject to disclosure until the final event has occurred (provided confidentiality is maintained) and therefore, delay of disclosure will in many cases not be necessary.

ESMA is seeking input from market participants on whether to maintain in the guidelines, the example of a legitimate interest to delay disclosure, of instances where the financial viability of the issuer is in grave and imminent danger, even though not within the scope of applicable insolvency law.

In addition, ESMA proposes three new situations in which delay of disclosure of inside information is in the legitimate interest of the issuer. The list remains non-exhaustive. 

Orders by a public authority to maintain confidentiality

In certain circumstances, EU and third-country public authorities are empowered by law to require the issuer to maintain the confidentiality of inside information.

This could be the case where a national authority requires confidentiality on the grounds of public policy, public security, or public health. For instance, a ministry of defence could require confidentiality about the conclusion of a defence contract on the basis of national security.

ESMA notes that such mandated confidentiality by public authorities should be viewed as a legitimate reason to delay disclosure. 

Need to collect further information on the event or the circumstances to be disclosed

In exceptional cases, the issuer may have a legitimate interest in collecting additional data and information not immediately available before proceeding with the relevant disclosure. ESMA highlights major incidents or cyber-attacks as possible scenarios where such need to collect further information may constitute a legitimate reason to delay disclosure.

To represent a legitimate interest, the need to collect additional data and information must be based on objective and verifiable grounds. In addition, issuers must carry out such collection without undue delay. The legitimate interest of the issuer to delay disclosure will cease to exist once the issuer has collected enough data and information for the market to properly assess the events to which the inside information refers, regardless of the fact that further information may be available at a later stage.

Risk of losing a business opportunity when participating in parallel procurement processes

In certain cases, it may be in the legitimate interest of the issuer to delay disclosure of sensitive commercial information, as it may jeopardise the issuer's business opportunities.

Such instances may include situations where the issuer participates in more than one public procurement procedure with a similar subject but different deadlines. If the issuer is awarded a contract in one of them whilst the period for submitting offers in another remains open, the issuer's disclosure of information related to the awarded contract may enable the issuer's competitors to adjust their bid accordingly, thus threatening the issuer's business opportunities.

ESMA is seeking further input from market participants on other possible cases where disclosure of sensitive commercial information may jeopardise an issuer's business opportunity and thus qualify as a legitimate interest for the delay of disclosure.

Removal of guideline regarding situations in which delay of disclosure of inside information is likely to mislead the public

As condition (b) for delay of disclosure of inside information pursuant to Article 17(4) of MAR "not likely to mislead the public" is replaced by the condition that "inside information must not be in contrast with the latest public announcement or other communication by the issuer on the same matter", the mandate for ESMA to issue guidelines regarding the likelihood to mislead the public is no longer covered under Article 17(11) of MAR.

Stakeholders are invited by ESMA to provide feedback on the consultation paper by 29 April 2026 via the link below. Plesner invites interested stakeholders to contact our team of experts should you wish to discuss the consultation paper in further detail. 

For more information or to provide feedback to ESMA, please refer to: ESMA seeks input to streamline and simplify its market abuse guidelines

For more capital markets law updates, see: Plesner's LinkedIn-page: Plesner Capital Markets Update