Public disclosure and delayed disclosure of inside information (continuing information obligations)

On the public disclosure obligation and the possibility of delaying disclosure in general

Issuers shall ensure that inside information, which directly concerns them, is made public as soon as possible. Emission allowance market participants have a corresponding duty to publicly, effectively and in a timely manner disclose inside information. For further information about entities subject to this obligation, see MAR and the emission allowance market, as well as further information on the disclosure obligation for this group below under "The disclosure obligation for emission allowance market participants".

Immediate disclosure may, however, in certain circumstances prejudice the legitimate interests of the issuers or the emission allowance market participant. Because of this, MAR allows delayed disclosure of inside information to the public, provided that further specified conditions are fulfilled. For financial institutions and credit institutions, MAR provides a special delayed disclosure rule in cases where disclosure may entail a risk of undermining the financial stability of the issuer and of the financial system. For further information, see the section "On delayed disclosure of inside information in general" below.

Who is subject to the disclosure obligation?

The obligation to disclose inside information to the public and the possibility of delaying disclosure is applicable to:

• Issuers who have requested or approved admission of their financial instruments to trading on a regulated marked (including Oslo Børs or Euronext Expand)
• Issuers who have instruments only traded on a multilateral trading facility (MTF) (including Euronext Growth Oslo) or organised trading facility (OTF) and that has either requested admission to trading of their financial instruments on an MTF or that has approved trading of their financial instruments on an MTF or OTF.
• Emission allowance market participants that in the preceding year have had emissions exceeding certain emission thresholds (see the definition in MAR Article 3 (1) no. 20 cf. Article 17 (2), second subparagraph, cf. Commission Delegated Regulation 2016/522 Article 5). See also MAR and the emission allowance market.

Public disclosure of inside information

MAR Article 17 and Commission Implementing Regulation 2016/1055 Article 2 further set out how issuers and emission allowance market participants shall disclose inside information to the public. The disclosure shall be made in a non-discriminatory manner that enables simultaneous and fast access, and a complete, correct and timely assessment of the information by the public. Note that disclosure of inside information shall not be combined with marketing of the issuer's activities.

Inside information shall be made public by use of technical means that ensures that the inside information is disseminated free of charge to as wide a public as possible at the same time, and that the information is communicated through a media which is reasonably relied upon by the public etc. Upon publication, the communication shall clearly identify the following (Commission Implementing Regulation 2016/1055 Article 2 (1) b)):

• that the information communicated is inside information;
• the identity of the issuer or emissions allowance market participant;
• the identity of the person making the notification: name, surname and position
• the subject matter of the inside information;
• the date and time of the communication to the media.

In case of any failure or disruption in the communication, issuers and emission allowance market participants must handle the situation in accordance with applicable requirements for handling of inside information to ensure completeness, integrity and confidentiality. Reference is otherwise made to Commission Implementing Regulation 2016/1055 Article 2 for further information about the requirements on public disclosure.

The disclosure obligation for issuers

Time

Issuers shall disclose the inside information to the public "as soon as possible" (MAR Article 17 (1)). The former rule in Norwegian law required the disclosure to be made "immediately". The Ministry of Finance has stated that information which directly concerns the issuer as a point of basis still shall be disclosed immediately and that the obligation applies regardless of the opening hours of the marketplaces, see item 6.8.1.5 of Proposition 96 LS (2018-2019).  

Information on own website in addition to public disclosure

The issuer shall also post and maintain on its website for a period of at least five years, all inside information it is required to disclose publicly. For further information on how such information shall be posted, including on users' access to the website, reference is made to MAR Article 17 (1) second subparagraph cf. Commission Implementing Regulation 2016/1055 Article 3.

The disclosure obligation for emission allowance market participants

Emission allowance market participants shall publicly, effectively and in a timely manner disclose inside information concerning emission allowances which it holds in respect of its business. This includes business that the participant concerned, or its parent undertaking or related undertaking, owns or controls or for the operational matters of which the participant, or its parent undertaking or related undertaking, is responsible, in whole or in part. With regards to installations, the disclosure shall include information relevant to the capacity and the utilisation of installations, including planned or unplanned unavailability of such installations.

The disclosure obligation does not apply if:

• the installations or business in the preceding year had emissions that did not exceed a minimum threshold of carbon dioxide (CO2) equivalents of 6 million tonnes
• if they carry out combustion activities, have had a nominal heating effect that has not exceeded a minimum threshold of 2 430 MW.

For further information on the definition of emission allowance market participants and the thresholds, see MAR and the emission allowance market.  

There is a specific definition of inside information related to emission allowances or auctioned products based thereon (see MAR Article 7 (1) c) cf. Article 7 (4)). In accordance with this definition, emission allowance market participants must make an individual assessment as to whether information fulfils the criteria for inside information. In the case of participants in the emission allowance market with aggregate emissions or rated thermal input at or below the thresholds set out above, information about their physical operations shall be deemed not to have a significant effect on the price of emission allowances (see MAR Article 7 (4) second subparagraph).

With respect to the methods of publication of inside information, reference is made to Article 2 of Commission Implementing Regulation 2016/1055.

The disclosure obligation for issuers admitted to trading on a market for small and medium-sized enterprises (SME growth market)

MAR sets out certain special provisions for issuers whose financial instruments are admitted to trading on a market for small and medium-sized enterprises (SME growth market). A SME growth market is defined as a MTF registered as a growth market for SMEs in accordance with Article 33 of MiFID. This group of issuers may, inter alia, post inside information on the trading venue's website instead of on the website of the issuer where the trading venue chooses to provide this facility for issuers on that market (MAR Article 17 (9)).

Euronext Growth Oslo is a so-called SME growth market.

On delayed disclosure of inside information in general

Issuers and emission market allowance participants may, on its own responsibility, delay disclosure to the public of inside information provided that the following conditions are met (MAR Article 17 (4) cf. Commission Implementing Regulation 2016/1055 chapter III): 

1. immediate disclosure is likely to prejudice the legitimate interests of the issuer or emission allowance market participant
2. delay of disclosure is not likely to mislead the public
3. the issuer or emission allowance market participant is able to ensure the confidentiality of the information

Reference is made to ESMAs guidelines on delayed disclosure (ESMA-70-156-4966), in which ESMA, amongst other, provides a non-exhaustive list of circumstances where immediate disclosure could, following an individual assessment, be considered likely to prejudice an issuer's legitimate interest (item 5.1) and situations in which delay of disclosure is likely to mislead the public.

If the issuer or the emission allowance market participant resolves to delay disclosure, details relating to the delay shall be kept and updated continuously. This includes, amongst other:

• the dates and times when the inside information first existed, when the decision was made, and when the information is likely to be disclosed
• the identity of the persons that, inter alia, has participated in the decision
• evidence of the fulfilment of the conditions for delayed disclosure etc.

This information and evidence shall be stored electronically in a durable medium that ensure that the accessibility, readability, and maintenance of the information. For further information about the requirements, see Commission Implementing Regulation 2016/1055 Article 4.

In case of delayed disclosure of inside information, the issuer or emission allowance market participant shall control and ensure that the conditions for the delay are fulfilled at any given time, as well as ensure that insider lists are drawn up in accordance with MAR Article 18. If one or more of the conditions for the delay are no longer considered fulfilled, the issuer or the emission allowance market participant shall as soon as possible make the inside information public in accordance with MAR Article 17. This also applies to situations where a rumour explicitly relates to inside information the disclosure of which has been delayed, where that rumour is sufficiently accurate to indicate that the confidentiality of that information is no longer ensured (see in particular MAR Article 17 (7)). If it becomes evident at a later point in time that the conditions for delayed disclosure were not fulfilled, this may be considered as a breach of the information duty that may be subject to sanctions.

Delayed disclosure - issuers

If an issuer that has requested or approved admission of their financial instruments to trading on a regulated market has delayed disclosure of inside information, the issuer shall immediately after the information was disclosed, notify Finanstilsynet that the disclosure of the information was delayed (see MAR Article 17 (4) third subparagraph cf. Commission Delegated Regulation 2016/522 Article 6 (1)).

An issuer that only has instruments traded on an MTF, and that either has requested or approved trading of their financial instruments on such MTF, shall correspondingly notify Finanstilsynet immediately after the disclosure of inside information. In addition, issuers that have instruments only traded on an OTF and is comprised by the disclosure obligation etc, shall also notify Finanstilsynet.

The notification shall be made to Finanstilsynet by submittal of the Altinn form KRT-1801.

If requested by Finanstilsynet, the issuer shall also provide a written explanation of how the conditions for delayed disclosure were fulfilled.

For more information about the requirements for delayed disclosure of inside information for issuers and the notification to Finanstilsynet, see Delayed disclosure of inside information – issuers.

Delayed disclosure – emission allowance market participants

An emission allowance market participant that is registered with the Norwegian Register of Business Enterprises and that has delayed disclosure of inside information, shall immediately after the publication of the information, notify Finanstilsynet about this (see MAR Article 17 (4) third subparagraph cf. Commission Delegated Regulation 2016/522 Article 6 (3)).

The notification shall be made to Finanstilsynet by submittal of the Altinn form KRT-1801.

If requested by Finanstilsynet, the emission allowance market participant shall also provide a written explanation of how the conditions for delayed disclosure were met.

For more information about the requirements for delayed disclosure of inside information for emission allowance market participants and the notification to Finanstilsynet, see MAR: Delayed disclosure of inside information – emission allowance market participants.

Delayed disclosure – where the issuer is a credit institution or financial institution

Because of the key role of credit institutions and financial institutions for preserving stability of the financial markets, MAR allows such issuers to delay disclosure of inside information in certain exceptional circumstances. There are special conditions for delaying disclosure pursuant to this exemption (see MAR Article 17 (5) and (6) cf. Commission Implementing Regulation 2016/1055 Article 5), including that:

• the disclosure of the inside information entails a risk of undermining the financial stability of the issuer and of the financial system
• it is in the public interest to delay the disclosure
• the confidentiality of that information can be ensured
• Finanstilsynet has given its prior consent to the delay.

For further information about the process relating to any prior consent, including the documentation the issuer must submit, reference is made to MAR Article 17 (6) cf. Commission Implementing Regulation 2016/1055 Article 5 This special arrangement applies to credit institutions and financial institutions as this is defined in MAR (see Article 3 (1) no. 3 and 4, and the Capital Requirements Regulation 575/2013 (CRR)).

For further guidance on the conditions and prior consent etc., reference is otherwise made to ESMAs questions and answers document ESMA-70-145-111 (ESMAs Q&A on MAR), items 5.3 – 5.5 (see Laws and regulations).

The requirements for drawing up insider lists pursuant to MAR Article 18 and to publish the information as soon as possible if it is no longer possible to ensure confidentiality also applies in cases of delayed disclosure pursuant to this provision. 

Reporting, supervision and sanctioning

Finanstilsynet supervises compliance with the disclosure requirements, including delayed disclosure of inside information pursuant to MAR Article (4) – (6) cf. Commission Implementing Regulation 2016/1055 for issuers that are comprised by these rules. Finanstilsynet also supervises the disclosure requirements for emission allowance market participants.

Breach of the rules may be sanctioned with administrative fines pursuant to section 21-1 (1) of the Norwegian Securities Trading Act. Breach by intent or negligence is punishable by fines or prison up to 1 year pursuant to section 21-15 (4) no. 1 of the Norwegian Securities Trading Act.   

Laws and regulations

The rules on disclosure of inside information and the conditions for delayed disclosure are set out in:

• MAR article 17 (cf. Article 7 and 2)
• Commission Implementing Regulation 2016/1055

For further guidance, see

• ESMAs guidelines on delay in the disclosure of inside information and interactions with prudential supervision (ESMA-70-156-4966), chapter 5
• ESMAs questions and answers document ESMA-70-145-111 (ESMAs Q&A on MAR), chapter 5

For further information – see Laws and regulations