The5 following factors may5 be taken into account in determining whether or not behaviour5 prior to a request for admission to trading,3 the admission to or the commencement of trading, or the offer for sale on a prescribed auction platform3 contravenes prohibitions and obligations in the Market Abuse Regulation5 and are indications that it does:5
- (1) 3
if it continues to have an effect once an application has been made for the financial instrument 5 to be admitted for trading, or it has been admitted to trading on a regulated market or MTF5, respectively 5; or
- (2) 3
The5 following factors may5 be taken into account in determining whether or not refraining from action indicates behaviour5 which falls under the scope of the Market Abuse Regulation,5 and are indications that it does:
if the person concerned has failed to discharge a legal or regulatory obligation (for example to make a particular disclosure) by refraining from acting; or
if the person concerned has created a reasonable expectation of him acting in a particular manner, as a result of his representations (by word or conduct), in circumstances which give rise to a duty or obligation to inform those to whom he made the representations that they have ceased to be correct, and he has not done so.
The5 following factors may5 be taken into account in determining whether or not a person who possesses inside information ought to know that it is inside information for the purposes of the final indent of article 8(4) of the Market Abuse Regulation5:
whether the information has been disclosed to a prescribed market or a prescribed auction platform3 through a regulatory information service or RIS or otherwise in accordance with the rules of that market;
whether the information is contained in records which are open to inspection by the public;
whether the information is otherwise generally available, including through the Internet, or some other publication (including if it is only available on payment of a fee), or is derived from information which has been made public; and5
whether the information can be obtained by observation by members of the public without infringing rights or obligations of privacy, property or confidentiality.5
For example, if a passenger on a train passing a burning factory calls his broker and tells him to sell shares in the factory's owner, the passenger will be using5 information which has been made public5, since it is information which has been obtained by legitimate means through observation of a public event.
5In determining whether there is a pending order 5 for a client in relation to article 7(1)(d) of the Market Abuse Regulation, a factor that may be taken into account is5 if a person is approached by another in relation to a transaction, and:53
[Note: the guidelines are available at https://www.esma.europa.eu/document/mar-guidelines-commodity-derivatives.]