Issuers obligations under the new Market Abuse Regulation and the proposed ESMA guideline regime: a brief overview

Abstract

Abstract The present work briefly analyses some selected topics of the new European Market Abuse framework, in particular with reference to issuers’ obligations. The package of the reform originally proposed by the Commission on 2011 was composed of two legislative proposals: (i) a regulation on insider dealing and market manipulation which is going to replace directive 2003/6/EC and its implementing measures; and (ii) a directive specifically concerning criminal sanctions for insider dealing and market manipulation. The work takes into consideration the text of the regulation adopted by the European Parliament in its plenary setting on September, 10th, 2013 and the ESMA’s Discussion Paper published in November 2013. Paragraph II deals with the critical notion of inside information for the purpose of insider trading and for issuers’ duty to disclose, underlining ESME’s approach with reference to the twofold notion of inside information in the directive 2003/6/EC and examining the definition of art. 6 of the new regulation in the light of the decision of the European Court of Justice in the case Marcus Geltl against Daimler AG. ThereTherefore fore, it analyses the marginal utility of the delay as a remedy for the communication of information not sufficiently mature and the importance of the ESMA’ s guidelines for the definition of the conditions of the delay. The new rules on rumours and market soundings, never tackled in the directive 2003/6/EC, will be also commented. Paragraph III analyses the content and the scope of insider lists. Taking into consideration the timing of the public disclosure and the conditions for the delay set forth in art. 12, par. 3 of the proposed regulation, this work sounds out the concrete function of insider lists, especially with reference to the list of “occasional insider”, and evaluates the effectiveness of the proposed ESMA’s implementing regime. Paragraph IV deals with managers’ transactions, tackling with some specific problems such as the shortened timing of notification, the low threshold for the communication of managers’ transactions and the possibility for Member States to raise this threshold.