New ESMA guidance on insider lists for advisers

In an updated version of their Q&A on the Market Abuse Regulation (MAR), ESMA has issued guidance on whether advisers to issuers are subject to the obligation to draw up and update an insider list.

According to Article 18(1) of MAR, issuers or any person acting on behalf or account of the issuer shall draw up a list of all persons who have access to inside information and who are working for them under a contract of employment, or otherwise performing tasks through which they have access to inside information, such as advisers, accountants or credit rating agencies. 

Since MAR entered into force on 3 July 2016, there has been some uncertainty about how the advisers should keep their lists as the format of the lists to be used cannot comprise references to legal persons, but only natural persons. In practice, some has solved this problem by referring to a contact person of the advisor on the insider list. The advisor therefore made their own insider list, which could be part of one overall insider list. 

It has been unclear whether this procedure was to be regarded as a delegation of responsibility of the compliance with the insider list according to Article 18(2) of MAR or if the advisers have an independent duty to draw up an insider list. 

In a new version of their Q&A on MAR, ESMA has stated that their interpretation is that advisers are personally responsible for drawing up, updating and submitting the list to the NCA upon request pursuant to Article 18(1) of MAR. This interpretation means that the issuer is not responsible for the list being drawn up correctly by the advisor. 

However, some practical questions still remain: For instance, should a contact person of the advisor still be included on the insider list of the issuer? 

For the time being, it is Plesner's recommendation to proceed as before until new guidelines perhaps are issued by ESMA or the Danish FSA. 

Read ESMA: Questions and Answers on MAR, version 7 (1. september 2017)

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