MAR 1.2 Market Abuse: general

In the opinion of the FCA , the following factors are to be taken into account in determining whether or not behaviour 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 satisfies section 118(1)(a) of the Act, and are indications that it does:

1. (1)

   if it is in relation to qualifying investments:3

   1. (a)

      in respect of which a request for admission to trading on a prescribed market is subsequently made; and

   2. (b)

      if it continues to have an effect once an application has been made for the qualifying investment to be admitted for trading, or it has been admitted to trading on a prescribed market, respectively, or

2. (2)

   3if it is in relation to qualifying investments:

   3
   1. (a)

      which are subsequently offered for sale on a prescribed auction platform; and

   2. (b)

      if it continues to have an effect once the qualifying investments are offered for sale on a prescribed auction platform.

In the opinion of the FCA , the following factors are to be taken into account in determining whether or not refraining from action amounts to behaviour which satisfies section 118(1)(a) of the Act and are indications that it does:

1. (1)

   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

2. (2)

   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.

In the opinion of the FCA , the following factors are to be taken into account in determining whether or not a person could reasonably be expected to know that information in his possession is inside information and therefore whether he is an insider under section 118B(e) of the Act, and indicate that the person is an insider:

1. (1)

   if a normal and reasonable person in the position of the person who has inside information would know or should have known that the person from whom he received it is an insider; and

2. (2)

   if a normal and reasonable person in the position of the person who has inside information would know or should have known that it is inside information.

In the opinion of the FCA , the following factors are to be taken into account in determining whether or not information is generally available, and are indications that it is (and therefore not inside information):

1. (1)

   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;

2. (2)

   whether the information is contained in records which are open to inspection by the public;

3. (3)

   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;

4. (4)

   whether the information can be obtained by observation by members of the public without infringing rights or obligations of privacy, property or confidentiality; and

5. (5)

   the extent to which the information can be obtained by analysing or developing other information which is generally available. [Note: Recital 31 Market Abuse Directive]

1. (1)

   In relation to the factors in MAR 1.2.12E it is not relevant that the information is only generally available outside the UK.

2. (2)

   In relation to the factors in MAR 1.2.12E (1), (3), (4) and (5) it is not relevant that the observation or analysis is only achievable by a person with above average financial resources, expertise or competence.

In the opinion of the FCA , a factor which indicates that there is a pending order or bid3 for a client is, if a person is approached by another in relation to a transaction, and:

1. (1)

   the transaction is not immediately executed on an arm's length basis in response to a price quoted by that person; and

2. (2)

   the person concerned has taken on a legal or regulatory obligation relating to the manner or timing of the execution of the transaction.