Related provisions for DTR 2.5.6A
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3Issuers should be aware that ESMA has issued guidelines under article 17(11) of the Market Abuse Regulation which contain a non-exhaustive indicative list of the legitimate interests of issuers to delay disclosure of inside information and situations in which delayed disclosure is likely to mislead the public. The ESMA MAR delayed disclosure guidelines are available here: https://www.esma.europa.eu/sites/default/files/library/2016-1478_mar_guidelines_-_legitimate_interests.p
An issuer should not be obliged to disclose impending developments that could be jeopardised by premature disclosure. Whether or not an issuer has a legitimate interest which would be prejudiced by the disclosure of certain inside information is an assessment which must be made by the issuer in the first instance. 321
The FCA's power to require information to assist EEA regulators in respect of the Market Abuse Regulation or any directly applicable EU regulation made under the Market Abuse Regulation or the auction regulation is contained in section 122B(6) of the Act. The section provides that at the request of an EEA regulator, the FCA may use its power under section 122B to require the production of information.[Note: see Regulation 6 and Schedule 1 to the RAP Regulations in relation to
Section 122B(7) of the Act states that the FCA must, in deciding whether or not to exercise its power to require information, consider whether the exercise of that power is necessary to comply with the Market Abuse Regulation or any directly applicable EU regulation made under the Market Abuse Regulation or the auction regulation.
The FCA may give information under 122D(1) or 176(1) (Entry of premises under warrant) at the request of an EEA regulator where the regulator makes the request in the exercise of its functions under the Market Abuse Regulation. Section 122D(11) of the Act states that the FCA must, in deciding whether or not to exercise it powers of entry of premises under warrant, consider whether the exercise of that power is necessary for the purpose of the exercise by it of its obligations
This chapter contains guidance on certain of6 the notification obligations of issuers, persons discharging managerial responsibilities and their connected persons under article 19 of the Market Abuse Regulation6, in respect of transactions conducted on their own account in shares or debt instruments6 of the issuer, or derivatives or any other financial instrument relating to those shares.1
(1) [deleted]65(2) 5An individual may be a "senior executive", as defined in article 3(1)(25)(b) of the Market Abuse Regulation,6 irrespective of the nature of any contractual arrangements between the individual and the issuer and notwithstanding the absence of a contractual arrangement between the individual and the issuer, provided the individual has regular access to inside information relating, directly or indirectly, to the issuer and has power to make managerial decisions
(1) [Note: article 7(4) of the Market Abuse Regulation]1(2) In determining whether information would be likely to have a significant effect on the price of financial instruments, an issuer should be mindful that there is no figure (percentage change or otherwise) that can be set for any issuer when determining what constitutes a significant effect on the price of the financial instruments as this will vary from issuer to issuer.
(1) [deleted]1(2) If an issuer is faced with an unexpected and significant event, a short delay may be acceptable if it is necessary to clarify the situation. In such situations a holding announcement should be used where an issuer believes that there is a danger of inside information leaking before the facts and their impact can be confirmed. The holding announcement should:(a) detail as much of the subject matter as possible;(b) set out the reasons why a fuller announcement
The FCA is aware that many issuers provide unpublished information to third parties such as analysts, employees, credit rating agencies, finance providers and major shareholders, often in response to queries from such parties. The fact that information is unpublished does not in itself make it inside information. However, unpublished information which amounts to inside information is only permitted to be disclosed in accordance with the requirements of the Market Abuse Regula
If an issuer is relying on article 17(4) or 17(5) of the Market Abuse Regulation1 to delay the disclosure of inside information it should prepare a holding announcement to be disclosed in the event of an actual or likely breach of confidence. Such a holding announcement should include the details set out in DTR 2.2.9 G (2).
Where there is press speculation or market rumour regarding an issuer, the issuer should assess whether a disclosure obligation arises under article 17(1) of the Market Abuse Regulation1. To do this an issuer will need to carefully assess whether the speculation or rumour has given rise to a situation where the issuer has inside information.
The knowledge that press speculation or market rumour is false may not1 amount to inside information. If1 it does amount to inside information, the FCA expects that there may be cases where1 an issuer would be able to delay disclosure1 in accordance with article 17(4) or 17(5) of the Market Abuse Regulation1.
1An issuer should be aware that matters that fall within the scope of this chapter may also fall within the scope of:(1) the market abuse regime set out in the Market Abuse Regulation2;(2) Part 7 (Offences relating to Financial Services) of the Financial Services Act 2012 relating to misleading statements and practices;(3) Part V of the Criminal Justice Act 1993 relating to insider dealing; and(4) the Takeover Code.
Examples of when the FCA may require the suspension of trading of a financial instrument include:(1) if an issuer fails to make an2 announcement as required by the Market Abuse Regulation2 within the applicable time-limits which the FCA considers could affect the interests of investors or affect the smooth operation of the market; or(2) if there is or there may be a leak of inside information and the issuer is unwilling or unable to issue an appropriate2 announcement required
1The FCA may use its section 122A power to require information and documents from an issuer, a person discharging managerial responsibilities or a person closely associated with a person discharging managerial responsibilities to support its supervisory and its enforcement functions, including those under the Market Abuse Regulation or any directly applicable EU regulation made under the Market Abuse Regulation.
1The FCA may use its section 122B power to require information and documents from a person to support both its supervisory and its enforcement functions under the Market Abuse Regulation or any directly applicable EU regulation made under the Market Abuse Regulation, or under the auction regulation.[Note: see Regulation 6 and Schedule 1 to the RAP Regulations for application of the power in relation to functions under the auction regulation]
1A UK RIE and an RAP2must immediately notify the FCA3of:3(1) significant breaches of its rules; or(2) disorderly trading conditions on any of its marketsor auctions; or42(3) 4conduct that may indicate behaviour prohibited under the Market Abuse Regulation; or(4) 4system disruptions in relation to a financial instrument.[Note:article 31(2)4, first sentence (part) andarticle 54(2)4, first sentence (part) of MiFID. The rest of article 31(2)4, first sentence (in so far as it relates
2The FCA views co-operation with its overseas counterparts as an essential part of its regulatory functions. Section 354A of the Act imposes a duty on the FCA to take such steps as it considers appropriate to co-operate with others who exercise functions similar to its own. This duty extends to authorities in the UK and overseas. In fulfilling this duty the FCA may share information which it is not prevented from disclosing, including information obtained in the course of the
3Under the 2000 Act the FCA has powers to investigate concerns including: regulatory concerns about authorised firms and individuals employed by them;suspected contraventions of the Market Abuse Regulation or any directly applicable EU regulation made under the Market Abuse Regulation or for contraventions of the auction regulation2;2[Note: see Regulation 6 and Schedule 1 to the RAP Regulations for powers in relation to contraventions of the auction regulation]suspected misleading
7Schedule to the Recognition Requirements Regulations, Paragraph 9ZB[Note: This paragraph is relevant to regulated markets only. See REC 2.16A regarding MTFs or OTFs.](1)The rules of the [UK RIE] must ensure that all - (a)[financial instruments] admitted to trading on a [regulated market] operated by it are capable of being traded in a fair, orderly and efficient manner;(b)[transferable securities] admitted to trading on a [regulated market] operated by it are freely negotiable;
In determining whether a UK recognised body is able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities, the FCA4 may have regard to the extent to which the UK recognised body seeks to promote and encourage, through its rules, practices and procedures, conduct in regulated activities which is consistent with the Market Abuse Regulation5 and with any5 codes of conduct, rules or principles relating to behaviour
4The FCA also has measures available to it where it considers it is appropriate to take protective or remedial action. These include: (1) where a firm's continuing ability to meet the threshold conditions or where an approved person's or other individual’s1 fitness and propriety1 are called into question: (a) varying and/or cancelling of permission and the withdrawal of a firm’s authorisation (see chapter 8); and (b) the withdrawal of an individual’s status as an approved person
3Relevant Community obligations which the FCA may need to consider include those under the Capital Requirements Directive, the Solvency II Directive1, the Investment Services Directive/Markets in Financial Instruments Directive, the Insurance Distribution Directive (IDD)4 ,2 and the Market Abuse Regulation2. Each of these legislative acts2 imposes general obligations on the relevant EEAcompetent authority to cooperate and collaborate closely in discharging their functions under
2In determining whether a UK RIE is ensuring that business conducted by means of its facilities is conducted in an orderly manner (and so as to afford proper protection to investors), the FCA5 may have regard to the extent to which the UK RIE's rules and procedures:5(1) are consistent with the Market Abuse Regulation6;6(2) prohibit abusive trading practices or the deliberate reporting or publication of false information about trades; and(3) prohibit or prevent:(a) trades in which