ESMA's Updated MAR Disclosure Guidelines

Scope

This guide explains ESMA's revised guidelines on delaying the disclosure of inside information under the Market Abuse Regulation (MAR). It's designed for compliance officers at EU-listed issuers who need to determine when delaying disclosure is legitimate and defensible.

The guidelines became applicable upon publication on ESMA's website in all 24 EU official languages. If you're responsible for MAR compliance, you'll reference this when evaluating whether specific inside information meets the criteria for delayed disclosure.

Key Concepts and Definitions

Inside Information: Information that is precise, not public, relates directly or indirectly to the issuer, and would likely affect share prices if disclosed.

Legitimate Interest: A business reason recognized by ESMA that justifies temporarily withholding inside information from the market without violating MAR's transparency requirements.

Delayed Disclosure: Temporarily postponing a required disclosure when immediate publication would harm the issuer's legitimate interests, provided the delay won't mislead the public and confidentiality is maintained.

Protracted Process: A multi-stage business event where intermediate steps generate inside information, but disclosure before completion would be premature or misleading. As of June 2026, these no longer require immediate disclosure at each intermediate stage.

Requirements Breakdown

Core MAR Obligation

Article 17(1) of MAR requires issuers to disclose inside information "as soon as possible." This is non-negotiable for most material events.

Article 17(4) permits delay only when three conditions are met:

1. Immediate disclosure would harm the issuer's legitimate interests.
2. Delay won't mislead the public.
3. The issuer can ensure confidentiality.

Five New Legitimate Interests

ESMA has added five scenarios where delayed disclosure is defensible:

Public Authority Request: A regulator, law enforcement agency, or supervisory body explicitly asks you not to disclose. Document the request in writing and confirm the timeframe.

Information Collection Period: You need additional data to enable market participants to correctly assess the information's significance. This isn't a blank check for indefinite delay but recognizes that incomplete disclosure can be more misleading than delayed disclosure.

Commercial Sensitivity Risk: Disclosure would cause you to lose a specific business opportunity by revealing sensitive commercial information to competitors. You'll need to demonstrate the direct causal link between disclosure and opportunity loss.

Key Appointment Jeopardy: Disclosure would jeopardize the appointment of a governing body member or manager in a key position. This typically applies when negotiations are ongoing and premature disclosure would cause the candidate to withdraw.

Group Company Prejudice: Disclosure concerning one group company would directly prejudice the issuer and undermine another group entity's legitimate delay. This addresses complex corporate structures where information flows across subsidiaries.

Removed Interests (Effective June 2026)

ESMA has eliminated legitimate interests tied to protracted processes. Previously, you might delay disclosure during multi-stage transactions or negotiations. Starting June 2026, protracted processes no longer require immediate disclosure at each intermediate step, so ESMA removed the corresponding delay justifications from the guidelines.

This change simplifies your analysis. You won't need to classify whether a process is "protracted" to justify delay during its progression.

Implementation Guidance

Decision Framework

When inside information arises, work through this sequence:

Step 1: Confirm it meets the definition of inside information. If it doesn't, MAR disclosure obligations don't apply.

Step 2: Default to immediate disclosure unless you can articulate a legitimate interest from ESMA's list.

Step 3: Verify all three Article 17(4) conditions. If you can't maintain confidentiality, don't delay regardless of legitimate interest.

Step 4: Document your reasoning contemporaneously. Your working papers should show which legitimate interest applies and how you assessed each condition.

Step 5: Monitor whether circumstances change. A legitimate delay can become illegitimate if confidentiality breaks or if the delay begins misleading the market.

Confidentiality Controls

You can't delay disclosure if you can't control information flow. Implement these baseline controls:

• Restrict access to named individuals with documented need-to-know.
• Use clean team structures for sensitive transactions.
• Monitor for unusual trading activity in your securities.
• Establish protocols for when confidentiality is breached (disclose immediately).
• Brief external advisors on confidentiality obligations under MAR.

Documentation Requirements

Your compliance file for each delayed disclosure should contain:

• Written explanation of which legitimate interest applies.
• Analysis of why immediate disclosure would prejudice that interest.
• Assessment of whether delay could mislead the public.
• Description of confidentiality measures in place.
• Timeline showing when information arose and when you plan to disclose.
• Name of the person who authorized the delay.

If ESMA or your national competent authority questions the delay, you'll need to reconstruct your decision process. Don't rely on memory.

Common Pitfalls

Confusing "embarrassing" with "prejudicial": A legitimate interest isn't just avoiding bad press. You need to show concrete business harm, not reputational discomfort.

Delaying because disclosure is inconvenient: Market timing preferences don't constitute legitimate interests. If you're waiting for a better news cycle, you're violating MAR.

Assuming confidentiality without controls: Hoping information doesn't leak isn't the same as ensuring confidentiality. If more than a handful of people know, you probably can't delay.

Treating all negotiations as protracted processes: The June 2026 change doesn't give you blanket permission to delay during any negotiation. You still need a legitimate interest from ESMA's list.

Failing to disclose when confidentiality breaks: Once information leaks or trading patterns suggest a leak, disclose immediately. The legitimate interest analysis becomes irrelevant.

Quick Reference Table

Effective Date: Upon publication on ESMA's website
Regulatory Framework: MAR Article 17(4)
Supersedes: Previous ESMA guidelines on delayed disclosure
June 2026 Change: Protracted process provisions removed

The evolving guidelines from ESMA highlight the delicate balance between transparency and strategic confidentiality in market disclosures. Your next step is to review your current disclosure processes and ensure they're aligned with these updated guidelines.