MAR enters into force in Norway on 1 March – what do you have to do?
What do you have to do if you are listed on Oslo Børs or on Euronext Expand:
- Update the primary insiders in Newspoint. The definition of “primary insiders” under MAR is different from the current regulations. Issuers will therefore have to consider which persons are to be regarded as primary insiders under MAR
- Update Newspoint with all related parties to primary insiders. Today, only related parties who own shares or rights to shares in the issuer shall be recorded in Newspoint. The definition of “related parties” to the primary insiders under MAR is different from the current regulations. Issuers must therefore contact their primary insiders to obtain information about their related parties and consider which persons are to be regarded as related parties to primary insiders under MAR
- Amend procedures for publication of primary insider trading notifications. Under MAR, such notifications shall be submitted by primary insiders to the issuer and the Norwegian FSA, while the issuer is responsible for the publication of the notifications. The kinds of transactions/instruments that are required to be published are extended under MAR. Issuers must therefore amend their routines and inform their primary insiders accordingly
- Amend procedures for the publication of primary insider notifications for transactions made by related parties to primary insiders. Today, such transactions shall be published by the primary insiders, however under MAR the related party is responsible for notifying the issuer and the Norwegian FSA, while the issuer is responsible for publishing the notification. Issuers shall therefore inform the primary insiders, and the primary insiders shall inform their related parties, about the regulations (and in practice new routines)
- Keep track of the volume of primary insiders’ transactions. Today, all primary insider transactions shall be published, while under MAR the publication obligation applies where the value of transactions during a calendar year reaches EUR 5000 (there is guidance for the calculation of FX, value of options, etc). Every transaction is included and one cannot for example “net” sale and purchase trades
- Adapt to amended deadlines for publication of notifiable primary insider transactions. Today, such transactions shall be published promptly and no later than prior to opening of the following trading day, while under MAR the regime is promptly and no later than within 3 business days following the transaction
- Establish procedures for “red periods” where primary insiders are restricted from trading, being the period of 30 days in advance of the publication of required annual and interim accounts
- Establish policy for the issuer’s granting of any exemption from the restriction from trading during “red periods”. MAR allows issuers to grant exemptions to primary insider trading during “red periods” in certain limited circumstances
- Use the standardized format for the publication of primary insider transactions. MAR has provided for a separate format that shall be used for the publication of such transactions
- Use new format for insider lists. A new format insider list has been prepared under MAR that requires additional information beyond the current requirements. Alternatively, one may purchase technical solutions from Oslo Børs or other service providers
- Amend routines for persons to be included on the insider list. Today, in principle “all persons with access” to inside information shall be included on the list, while MAR has slightly adjusted regulations related to defined groups of persons
- Amend procedures for keeping insider lists, reflecting the requirement to submit a confirmation to persons on the list and procure confirmation by the persons on the list regarding their awareness of obligations/responsibilities related to inside information
- Amend routines for outsourcing of the obligation to keep insider lists. Today, keeping lists may be outsourced to for example advisors, although the issuer remains responsible for the list, while under MAR the issuers’ advisors may have a separate responsibility to keep lists
- Consider whether to establish a separate list for so-called “permanent insiders”. This is new under MAR
- Consider routines for persons who are lawfully eligible to receive inside information. MAR has a slightly adjusted regulation compared to the current regulations
Publication of inside information:
- It is assumed that the definition of “inside information” will not be materially changed under MAR
- Stock exchange notifications containing inside information shall state that the information is deemed to constitute inside information
- Any stock exchange notification containing inside information shall state who within the issuer has published the information (in addition to the date and time of the publication, however such information shall be generated automatically in Newspoint)
- Stock exchange notifications shall be published both on Newsweb and on the issuer’s webpage
Delay of publication of inside information:
- Amend procedures for documenting decisions for delayed publication of inside information. MAR stipulates specific requirements for such decisions, including the persons within the issuer that shall be responsible for the decision. Documentation for such decisions shall be submitted to Oslo Børs on request when the relevant inside information is published
- Note that Oslo Børs retains the rule to inform the exchange immediately when a decision to delay publication of inside information is made, even if such rule does not follow from MAR. It is expected that today’s approach of informing the exchange by phone will be maintained
- Establish routines so that Oslo Børs is notified in writing that inside information has been delayed at the time of publication of inside information. Oslo Børs has informed that such written notification may be made directly in Newspoint. Note that this obligation is in addition to the notification (by phone) of delayed publication at the time of delayed publication
- MAR establishes technical standards for publication that may be relevant for issuers’ routines
Share buy-backs – «safe harbour»:
- MAR establishes separate technical standards for share buy-backs that are not materially different from today’s regulations
- Amend routines for publication of buy-back of own shares. Today, such acquisitions shall be made public promptly and no later than prior to the opening of the next trading day, while under MAR such trades shall be published no later than 7 trading days after the transaction
- It is no longer possible to increase the daily trading volume from 25% to 50% if trading volumes are particularly low, as may be permissible under today’s regulations
Price stabilization – «safe harbour»:
- MAR establishes separate technical standards for price stabilization that are not materially different from today’s regulations
- Amend routines for publication of price stabilization transactions. Today, such transactions shall be published following the stabilization period (maximum 30 days), while under MAR such transactions shall be published no later than 7 trading days after the transaction
Changes to Oslo Børs’ rules:
- MAR necessitates amendments to certain of Oslo Børs’ rules. Such amended rules are expected to be published by the exchange shortly
- Issuers’ routines and manuals must be updated to cater for such amended regulations
The various marketplaces:
For issuers listed on Oslo Børs and Euronext Expand (former Oslo Axess) the changes are significant, particularly in relation to primary insiders, keeping insider lists and publication of inside information, as described above.
For issuers with bonds listed on Oslo Børs, in addition to the abovementioned regulations, it will be an important change that trading in bonds will be subject to primary insider notification, and that issuers will be required to register primary insiders and their related parties in Newspoint and inform them about new rules and routines.
For issuers listed on Euronext Growth (former Merkur Market) the changes are material, as such companies have not been subject to full market abuse legislation (although the Euronext Growth rules have included part of such regulations). Such issuers will now be subject to MAR in the same way as companies listed on Oslo Børs and Euronext Expand, and will have to amend their routines and manuals accordingly, including – in addition to the abovementioned – entering into an agreement for the distribution of disclosable information and ensuring that disclosable information is made public on their webpages (in addition to Newsweb).
What may BAHR provide:
- Advice and guidance on the new regulatory regime
- Review of internal routines and manuals to bring them in compliance with MAR
- Development of new routines and manuals as required under MAR
- Seminars and presentations for board and management
- Assistance with the transition to MAR compliance
MAR regulates, in brief, inter alia:
The definition of inside information.
Handling of inside information:
- Prohibition against insider trading as well as inducement and advising to trade
- Establishment of presumptions for transactions that as a main rule not shall be deemed insider trading
- Disclosure of inside information and delayed public disclosure of inside information
- Confidentiality and adequate information routines
- Keeping of insider lists
Prohibitions against market manipulation, including:
- “safe harbor” relating to share buy-backs
- “safe harbor” relating to stabilization of securities in connection with IPOs etc.
Regulation of “market soundings” i.e. discussions with investors (including by giving sensitive information) in connection with placement of securities and mergers/takeovers.
Regulation of primary insiders:
- Keeping of lists over primary insiders and their related parties
- Publication of transactions by primary insiders and their related parties, inter alia for shares, rights to shares and bonds
- Introduction of “red periods” with restrictions on trading by primary insiders and their related parties
Regulations to prevent and detect market abuse.
Regulation of information in media.
The regulators’ authorities and cooperation between EEA-regulators.
Applies in full – and equally – for both Oslo Børs, Euronext Expand (former Oslo Axess) and Euronext Growth (former Merkur Market) – and for shares, bonds and certain other securities.
MAR does not regulate, or does not amend, inter alia:
- Periodic financial reporting of annual and interim accounts: continues as today
- Large shareholder notifications: continue as today
- Mandatory offer regulations: continue as today
- Equal treatment of owners of securities and corporate governance: continue as today
- Use of Newsweb for publishing of disclosable information: continues as today
- Oslo Børs will not change the notification categories in Newsweb
- Note that Oslo Børs has separate rules relating to disclosable events etc that will not be amended under MAR (although it is expected that the exchange will shortly announce amendments to their rules as a result of implementation of MAR)
MAR is an extensive regulatory regime with highly detailed rules and obligations. This newsflash is not exhaustive and does not constitute legal advice.