FCA confirms that list of reasons to delay disclosure is not exhaustive
The Financial Conduct Authority has now adopted in full the European Securities and Markets Authority's guidelines issued under the Market Abuse Regulation and made changes to its Disclosure Guidance in DTR 2 to bring it in line with ESMA's guidelines. The main change is the removal of a statement that delaying disclosure of inside information is only likely to be allowed where there is an ongoing negotiation that would be jeopardised by early disclosure, as this conflicts with ESMA's non-exhaustive list of situations when delay might be permissible.
Under Article 17 MAR, an issuer must announce inside information as soon as possible unless it can satisfy three criteria: that immediate disclosure would prejudice the issuer's legitimate interests, that delay is not likely to mislead the public and that confidentiality will be preserved. ESMA issued guidelines under MAR which include a non-exhaustive list of situations where an issuer might delay to protect its legitimate interests, as well as guidance on misleading the public.
Conflict between ESMA guidelines and DTR 2.5.5G
The FCA's Disclosure Guidance contained a statement that, other than in relation to ongoing negotiations, there are unlikely to be other situations in which delay might be possible to protect the issuer's legitimate interests. The FCA has now deleted this statement, following a consultation.
This change is welcome as it clarifies once and for all that the ESMA list of legitimate reasons for delay is indicative and non-exhaustive. It will allow issuers to delay in the other circumstances specified in the ESMA guidelines, and it potentially opens the door to delaying disclosure in circumstances not set out in the guidelines, as the list is non-exhaustive. However, the FCA has said that it and ESMA both interpret Article 17(4) MAR (ability to delay) narrowly.
The changes to DTR 2 took effect on 24 February 2017. Click here for the FCA’s policy statement.