MAR: Delayed disclosure of inside information – issuers

Conditions for delayed disclosure of inside information

The rules on delayed disclosure of inside information are set out in MAR Article 7 (4) and Commission Implementing Regulation 2016/1055 Article 4.

The assessment of whether the conditions for delayed disclosure are fulfilled lie with the issuer, and delayed disclosure is only allowed as long as the conditions are fulfilled. There is no duty for an issuer to delay disclosure of information even if the conditions are fulfilled. There is no arrangement for pre-approval of delayed disclosure by Finanstilsynet.

Pursuant to MAR Article 17 (4) first subparagraph, an issuer may, on its own responsibility, delay disclosure to the public of inside information provided that all of the following conditions are met:

• immediate disclosure is likely to prejudice the legitimate interests of the issuer
• delay of disclosure is not likely to mislead the public
• the issuer is able to ensure the confidentiality of that information

ESMA has published guidelines on delayed disclosure of inside information and interactions with prudential supervision (ESMA-70-156-4966). These include a non-exhaustive list of situations where disclosure of inside information may, subject to a concrete assessment, be likely to prejudice an issuer's legitimate interests (item 5.1) and of situations where delayed disclosure is likely to mislead the public (item 5.2).

Notification to Finanstilsynet on delayed disclosure of inside information

In case of delayed disclosure of inside information, the issuer shall notify Finanstilsynet about the delay immediately after the information is disclosed to the public. The Ministry of Finance has stated that the notification must in practice be given almost at the same time as the disclosure is made (see item 6.8.2.5 of Proposition 96 LS (2018-2019)).  

The notification shall include the following information (see Commission Implementing Regulation 2016/1055 Article 4 (3)):

• the identity of the issuer: full legal name
• the identity of the person making the notification: name, surname, position within the issuer
• the contact details of the person making the notification: professional e-mail address and phone number
• identification of the publicly disclosed inside information that was subject to delayed disclosure
• the reference number where the system used to disseminate the inside information assigns one
• date and time of the public disclosure of the inside information
• date and time of the decision to delay the disclosure of inside information
• the identity of all persons responsible for the decision to delay the public disclosure of inside information.

Electronical submittal of written notification of delayed disclosure to Finanstilsynet

The notification of delayed disclosure shall be sent to Finanstilsynet through the Altinn form "KRT-1801". For more information on electronical submittal of the form, see Written notification (KRT-1801) and explanation of delayed disclosure of inside information .

Explanation to Finanstilsynet that the conditions for delayed disclosure were fulfilled

Upon request from Finanstilsynet, the issuer shall, in addition to submitting the Altinn form KRT 1801, provide a written explanation for the assessment relating to inside information and how the conditions for delayed disclosure were met (see section 3-2 of the Norwegian Securities Trading Regulation and MAR Article 17 (4) third subparagraph). The explanation shall be provided as soon as possible.

Reference in this respect is made to the statements in the preparatory works where the Ministry of Finance has assumed that the issuer continuously write down and document their assessments of delayed disclosure, but that the compilation and systematization of the information to a legal justifications does not have to be made before the supervisory authority requests the explanation (see Proposition 96 LS (2018-2019) item 6.8.2.5). 

Competent authority

The above-mentioned notification and any explanation on delayed disclosure shall pursuant to MAR be submitted to the competent authority in such member state as set out in MAR Article 17 (3) cf. Article 6 (1) and (2) of Commission Delegated Regulation 2016/522. Finanstilynet is competent authority pursuant to section 19-1 of the Norwegian Securities Trading Act.

Rules and regulations

The disclosure rules for inside infromation are set out in, inter alia:  

• MAR Article 17, cf. Article 7 and 2
• Commission Implementing Regulation 2016/1055
• Section 3-2 of the Norwegian Securities Trading Regulation

For further information, see

• ESMAs guidelines on delayed disclosure of inside information and interactions with prudential supervision (ESMA-70-156-4966), chapter 5

For further information – see Rules and regulations