ESMA Consults On Revised MAR Guidelines Ahead Of Listing Act Disclosure Reforms

The European Securities and Markets Authority (ESMA) has launched a consultation on amendments to its guidelines on the delayed disclosure of inside information under the Market Abuse Regulation (MAR), with the aim of aligning supervisory guidance with the disclosure framework introduced by the EU Listing Act.

Current framework for disclosure and delay under MAR

Article 17(1) of MAR requires issuers to inform the public as soon as possible of inside information directly concerning them. Under the current regime, issuers may delay disclosure on their own responsibility where (a) immediate disclosure would prejudice legitimate interests; (b) delay is not likely to mislead the public; and (c) confidentiality can be ensured.

This mechanism has been particularly relevant in protracted processes (e.g. M&A negotiations), where disclosure may occur in stages, where individual milestones (referred to as 'intermediate steps') may themselves constitute inside information, requiring disclosure unless delay conditions are met.

Listing Act reform

A. General simplification

The EU Listing Act introduced a simplification to the disclosure regime. Under the amended article 17, inside information relating to intermediate steps in a protracted process no longer needs to be disclosed and only the final event or final circumstances must be disclosed as soon as possible once they occur. Accordingly, intermediate steps are no longer subject to the delayed disclosure regime.

B. Revised conditions for delaying disclosure

While the delay of disclosure mechanism is retained, the Listing Act replaces the condition that delay must not "mislead the public" with a new test: "the delayed information must not contradict the issuer's latest public announcement or communication on the same matter" The other conditions, namely the protection of legitimate interests and preservation of confidentiality, remain unchanged.

To this end, the European Commission is required to adopt a delegated act establishing a non-exhaustive list of final events in protracted processes and when disclosure is triggered; and situations where delayed information contradicts prior public communications.

C. Further reading

Further background on the Listing Act reforms to the disclosure regime, including the draft delegated act on protracted processes, is discussed in our May 2025 update.

The relevant provisions of article 17 MAR as amended by the Listing Act are set out in Annex III of the Consultation Paper. These changes will apply from 5 June 2026.

ESMA's proposed amendments to the MAR Guidelines

To ensure consistency with the revised framework, ESMA has issued a consultation wherein it proposes updates to the guidelines on the delayed disclosure of inside information. Primarily, ESMA is proposing additional scenarios where delay may be justified, including:

1. an order by a public authority to maintain confidentiality on the base of a legal provision or the powers conferred, such as an order received by a public authority in a public tender or an order from a public authority on the grounds of public policy, public security and public health;
2. a situation where complete information and/ or data on the event or circumstance the inside information to be disclosed refers to is not immediately available, such as major incidents or cyber-attacks; and
3. participation in subsequent public tenders of similar nature, such as parallel public procurements where the competitor could take into consideration the information disclosed in one to adjust their bids.

Furthermore, under the updated guidelines, legitimate interests linked to processes that will appear in the Commission's future list of protracted processes will be removed, as disclosure obligations will only arise upon conclusion of the process.

It is important to note that existing guidelines 2 and 3 clarifying that that Pillar 2 Capital Requirements (P2R) and Pillar 2 Capital Guidance (P2G) are likely to meet the definition of inside information under MAR and would in turn require public disclosure as soon as possible, unless the conditions for a delayed disclosure are met. We had provided an update on those guidelines in January 2022.

The proposed updates to the guidelines are set out in Annex IV of the Consultation Paper

Apart from seeking feedback on its proposed changes, ESMA is also seeking stakeholder input on whether there are (a) other instances where disclosure of sensitive commercial information may jeopardise an issuer's business opportunity, and should thus qualify as a legitimate interest for the delay; and (b) in addition to the case of parallel procurements of the same nature (point 3 above), other legitimate interests which could be added to the guidelines for the purpose of the delay in the disclosure.

The consultation period is open until 29 April 2026.

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