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ESMA publishes outcomes of MAR Review

24 September 2020

The European Securities and Markets Authority (ESMA), the EU’s securities markets regulator, has today published a review of the Market Abuse Regulation (MAR). The Report is the first in-depth review of the functioning of MAR since its implementation in 2016, and its recommendations will feed into the European Commission’s (EC) review of MAR.

The Report, which follows a 2019 consultation concludes that, overall, MAR has worked well in practice and is fit for purpose. This conclusion was confirmed by the overall feedback received in the 97 responses to the consultation, including from the Securities Markets Stakeholder Group. Respondents focused on specific amendments and clarifications rather than a major overhaul of the legislative framework.

Recommendations 

The Report to the EC sets out proposals for targeted amendments in MAR, including on the following issues where ESMA makes recommendations on:

  • 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; and
  •  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.

Guidance

The areas for which ESMA suggests providing additional guidance include:  

  • Inside Information and disclosure – ESMA will issue further guidance in relation to the application of the definition and for specific scenarios concerning delayed disclosure;
  • Pre-hedging – the Report identifies factors which may be considered when assessing if a specific pre-hedging conduct poses risks of market abuse and of violation of conduct rules. ESMA may assess pre-hedging in the future, considering specific circumstances such as its importance for illiquid instruments or the consequences of pre-hedging activities on the markets.

Finally, the Report also addresses:

  • Buy-back programmes;
  • Insider lists;
  • Managers’ transactions;
  • Establishment of an EU framework for cross-market order book surveillance;
  • Appropriateness of introducing common rules on the need for all Member States to provide administrative sanctions for insider dealing and market manipulation;
  • Cross border enforcement of sanctions; and
  • Retention period of personal data.

Next steps

The Report is submitted to the European Commission and is expected to feed into their review of MAR. ESMA is ready to provide further technical assistance to develop the legislative amendments suggested in the report.

ESMA’s Report was initially due for delivery in spring of 2020 but was postponed due to work-stream reprioritisation stemming from the Covid-19 pandemic.