Update of ESMA’s Q&A on the market abuse regulation

ESMA published an update of the Q&A document for interpreting the Market Abuse Regulation including three new questions. All of these questions relate to the disclosure of inside information regarding issuers’ credit ratings and outlooks.

On August 6, 2021, ESMA published a new version of the Q&A document on the Market Abuse Regulation (“MAR”). The three new questions relate to the disclosure of inside information regarding issuers’ credit ratings and outlooks.

ESMA recalls that, under article 10(2)(bis) of Regulation 1060/2009 of the European Parliament and of the Council of 16 September 2009, on credit rating agencies, credit ratings and outlooks (and any other information related to them) must be presumed to contain inside information until disclosed to the public. Thus, this information must be treated as inside information with no need to assess whether it fulfills the requirements to qualify as inside information under the MAR.

After this information is disclosed on the website of a credit rating agency, it will no longer be considered inside information, since it no longer qualifies as information “that has not been made public.” Under the MAR, it does not matter who publishes the information or by which means.

Finally, ESMA reaches the same conclusion when the information is disclosed through subscriber lists, since the “disclosure to the public” requirement will be considered fulfilled. In these cases, subscribers could operate with the securities concerned without infringing the applicable regulations.