The Subtle Relationship between Paragraphs 1, 4, 7 and 8 of Article 17 of the Market Abuse Regulation

Abstract

Article 17 MAR sets out the legal framework with respect to the disclosure of inside information. Article 17(1) MAR contains the primary duty to disclose inside information and stipulates that the issuer must disclose inside information that directly concerns that issuer. Article 17(4) MAR grants the issuer the possibility to delay the disclosure of inside information if three cumulative conditions are met; once one or more conditions are no longer met, the primary duty revives.

In addition to the primary duty, two separate duties to disclose have been included in Article 17 MAR: i) Article 17(8) MAR stipulates that the issuer must make complete and public disclosure of inside information that is disclosed to selected parties and ii) if the issuer had opted to delay the disclosure of inside information, Article 17(7) MAR stipulates that the issuer must make complete and public disclosure of that information if it has lost its confidential nature.

One could raise doubts over the necessity and function of Paragraphs 8 and 7 of Article 17 MAR. However, in this Paper we defend the independent status of these Paragraphs. If the inside information has lost its non-public nature, the duty to disclose that information can no longer be based on Article 17(1) MAR. Paragraphs 8 and 7 of Article 17 MAR contribute to legal certainty and to achieving the goals of the MAR.

Keywords: Market Abuse Regulation, inside information, disclosure duty, unlawful disclosure, selective disclosure, rumours, insider dealing