Insider lists

Issuers and persons subject to the requirement to draw up insider lists

According to MAR Article 18, both issuers and persons acting on their behalf or on their account, as well as certain emission allowance market participants, are required to draw up insider lists.

With respect to issuers, the obligation covers:

• issuers who have requested or approved admission of their financial instruments to trading on a regulated market,
• issuers who have requested admission to an MTF, or
• issuers who have approved trading on an MTF or OTF

Persons acting on behalf of the issuer or on the issuer's account have an independent obligation to prepare and update their own insider lists, as well as provide them to Finanstilsynet upon request (see ESMA's Q&A on MAR (ESMA-70-145-111), section 10.1). The issuer is not responsible for drawing up, updating or providing insider lists to be drawn up by such persons.

If another person has undertaken to draw up and update the issuer's insider list (i.e. the issuer has outsourced its obligation to draw up insider lists), the issuer remains fully responsible for fulfilling the insider list requirement (see ESMA's Q&A on MAR, section 10.2). When outsourcing this task, issuers shall always retain a right of access to the insider lists drawn up on their behalf (MAR Article 18 (2) second subparagraph).

The obligation to draw up insider lists and the requirements of MAR Article 18 also apply to:

• emission allowance market participants (in relation to inside information concerning emission allowances that arises in relation to the physical operations of that emission allowance market participant), and
• any auction platform, auctioneer and auction monitor (in relation to auctions of emission allowances or other auctioned products based thereon that are held pursuant to Commission Regulation (EU) No 1031/2010 (the Auctioning Regulation)).

Issuers admitted to trading on a growth market for small and medium sized enterprises (an SME growth market) are subject to less strict requirements (see separate section below).

When does the obligation to draw up insider list arise?

The obligation to draw up insider lists arises at the time inside information relating to the issuer comes into existence, including information relating to the issuer and/or its financial instruments. For a more specific definition of inside information, see Disclosure and delayed disclosure of inside information (ongoing disclosure requirement).

Who should be included on the insider list?

The insider lists shall include persons who have access to inside information and persons who are working for them under a contract of employment, or otherwise performing tasks through which they have access to inside information. In addition to employees, this may also include consultants, advisers, accountants, credit rating agencies and other contractors.

MAR sets out minimum requirements (see also MAR Article 18 (3)) that do not prevent the person responsible for drawing up insider from including other persons than those stated in the wording. Reference is also made to the preparatory works in connection with the incorporation of MAR in Norwegian law. In Proposition 96 LS (2018-2019) item 6.9.5, the Ministry of Finance states the following in connection with its assessment of the circle of persons to be included on insider lists (text translated by Finanstilsynet from Norwegian language to English language):

“According to the wording of the provision, under normal circumstances, this can hardly be said to include issuers' contractual counterparties, owners and others who gain access to inside information apart from the aforementioned defined circle of persons. The Ministry refers to Article 18 (3) on requirements to the contents of insider lists, which includes the identity of any person having access to inside information. Similarly, it follows from Article 18 (6) concerning issuers whose financial instruments are admitted to trading on a growth market for small and medium sized enterprises, that they shall take all reasonable steps to ensure that any person with access to inside information acknowledges the duties entailed. In the Ministry's view, equitable considerations also provide that issuers shall list all those who gain access to inside information, and this is also the rule under the current Securities Trading Act. The Ministry nevertheless believes that, on the basis of the wording of Article 18 (1), it is questionable whether everyone who has access to inside information shall be included on a list in accordance with the rules in Article 18 and supplementary rules provided in Commission Regulations.

However, the Ministry makes reservations that these rules are also open to interpretation, and that future interpretations could result in a wider understanding. In any case, the Ministry assumes that issuers and any person acting on their behalf or on their account can document that they are in control of the disclosure of inside information pursuant to MAR Article 10, also to persons who are not required to be listed in accordance with the specific requirements of MAR Article 18 and supplementary rules provided in Commission Regulations. In this connection, it may also be noted that the obligation to draw up an insider list arises at the same time as the issuer's obligation to ensure that the inside information remains confidential in the event of delayed disclosure pursuant to MAR Article 17 (4) (c). In the Ministry's view, there is nothing preventing the issuer from listing other persons who have access to inside information on the same list and in accordance with the rules in Article 18. As pointed out by the committee, the rules on market sounding may also entail an obligation to maintain insider lists.” (Text highlighted by Finanstilsynet)

About information to and confirmation from persons included on insider lists

Those required to draw up insider lists shall ensure that persons included on the insider list acknowledge in writing the legal and regulatory duties entailed and are aware of the sanctions applicable to insider dealing and unlawful disclosure of inside information. Reference is made to MAR Article 18 (2), the MAR preamble, section 56, as well as the Ministry of Finance's assessment in the preparatory works for the incorporation of MAR in Norwegian law (Proposition 96 LS (2018-2019) item 6.9.5).

During the consultation round, questions have been raised as to whether persons who are included on insider lists must confirm this every time they are placed on an insider list, or whether it is sufficient for such written confirmation to be given once. In this regard, the Ministry has stated the following in Proposition 96 LS (2018-2019) item 6.9.5 (text translated by Finanstilsynet from Norwegian language to English language):

“With regard to the question in the consultation comment as to how often such written confirmation should be given, the Ministry notes that equitable considerations indicate that a person must be informed each time that he or she is included on an insider list but that these considerations do not equally support the need for the person in question to submit a written confirmation that they are familiar with the regulations every time the person in question is included on a new insider list drawn up by the same issuer." (Text highlighted by Finanstilsynet)

Requirements for the content and format of the insider list

Detailed requirements have been set for drawing up and updating insider lists in MAR Article 18 and Commission Implementing Regulation (EU) 2022/1210. Insider lists shall be drawn up in an electronic format and in accordance with the standard templates attached to the Implementing Regulation.

The use of an electronic format shall at all times ensure:

• the confidentiality of the information included by restricting access to the insider list to clearly identified persons that need that access due to the nature of their function or position,
• the accuracy of the information, and
• the access to previous versions of the insider list

The regulations distinguish between event-based insider lists and permanent insider lists.  

Event-based insider lists

The event-based insider lists shall be divided into separate sections where a new section is prepared for each inside event. Each section shall contain information about persons with access to the same inside information. All columns and fields in each section must be filled in. The list shall be prepared and updated in an electronic format in accordance with Annex 1 to Commission Implementing Regulation (EU) 2022/1210.

It is important that issuers on their insider list specify contact persons of persons acting on their behalf or on their account who draw up separate insider lists. This is to ensure that the issuer's insider list specifies that other persons required to draw up insider lists may also have insider list(s) related to the same insider event. In such cases, it is recommended that information about a physical contact person with the individual entity required to draw up insider lists are provided. See also Proposition 96 LS (2018-2019) item 6.9.5.    

Permanent insider list

In addition to having one section per insider event (event-based insider list), persons/issuers required to draw up insider lists may, on a voluntary basis, also have a separate section in the insider list for so-called permanent insiders. This section differs from the event-based insider list as it is not linked to a specific insider event. However, the group of permanent insiders represents a very narrow circle of persons and only includes natural persons who, due to the nature of their function or position, at any given time have access to all inside information. Those required to draw up insider lists must make a concrete assessment of whether each person it is considering to include on the permanent insider list actually has/will have access to all inside information at all times before they are included on the list. Natural persons listed in the permanent insiders section shall not also be listed in the event-based section of the insider list. If a section is created for permanent insiders, this must be prepared and updated in an electronic format in accordance with template 2 of Annex I to Commission Implementing Regulation (EU) 2022/1210.

Even if a list of permanent insiders has been created, and only people on that list have access to the relevant inside information, an event-based insider list shall be drawn up for each insider event. In this case, the event-based insider list shall provide information about the insider event, the date and time at which the inside information was identified and any updates to the list (see Annex 1, template 1 to Commission Implementing Regulation (EU) 2022/1210).

Updating and storage of insider lists

Insider lists shall be updated immediately in connection with the following changes:

• where there is a new person who has access to inside information (a new person is added),
• where there is a change in the reason for including a person already on the insider list,
• where a person ceases to have access to inside information.

For each update, the date and time when the change triggering the update occurred, as well as the date of updating the list shall be specified.

Insider lists shall be retained for a period of at least five years after they are drawn up or updated.

Insider lists for issuers in SME growth markets

Issuers whose financial instruments are admitted to trading on a SME growth market must, according to MAR Article 18 (6) second subparagraph, cf. the Securities Trading Act Section 3-4a, draw up event-based (and any permanent) insider lists in the same cases as other issuers. However, less information is required about the insider, and issuers shall use template 1 of Annex 3 in such cases. For any permanent insiders, template 2 of Annex 3 shall be used.

Euronext Growth Oslo, a multilateral trading facility operated by Oslo Børs, is registered as a SME growth market in Norway.

Reporting, supervision and sanctioning

Insider lists shall be sent to Finanstilsynet upon request. For more information about the submission of insider lists, see MAR: Submission of insider lists at the request of Finanstilsynet (Norwegian text).

Finanstilsynet supervises compliance with MAR Article 18 and supplementary provisions. Infringement of the provisions may result in administrative pecuniary sanctions being imposed pursuant to Section 21-1 (1) of the Securities Trading Act. Wilful or negligent infringement may be penalised by fines or imprisonment for up to one year under Section 21-15 (4) no. 1 of the Securities Trading Act.

Regulations

The rules on insider lists follow from:

• MAR Article 18
• Commission Implementing Regulation (EU) 2022/1210

For further guidance see:

• ESMA's Q&A on MAR, Chapter 10.

For further information, see Laws and regulations.