EU Regulatory Updates

Author: Clerkin Lynch LLP

Date Published 11/10/2022

 ESMA updates Q&As

The European Securities and Markets Authority (“ESMA”), updated its Questions and Answers on 23 September 2022, in relation to:


With regard to the European crowdfunding service providers the Q&A has clarified that the concept of ‘business activity’ is intended to be interpreted in a broad sense, encompassing all kinds of economic activities by a natural (in the course of their business, trade or profession) or a legal person that give rise to a profit or any other economic benefit for those owning this ‘business activity’. That would imply that non-profit organisations (e.g. an association or local public authorities) may act as ‘project owners’ as long as they raise funds for an activity that generates some economic benefit for its owners/members/ultimate beneficiaries (whether monetary or non-monetary).

With regard to Market Abuse Regulation (MAR) the Q&A has clarified that pieces of inside information have to be immediately published unless delayed disclosure under Article 17 of MAR takes place, irrespective of the date of publication of the financial guidance, the half-yearly or the yearly report as determined by the relevant national legislation. With regard to market analysts’ expectations and the identification of inside information it has been clarified that all available information has to be considered by the issuers to determine whether a piece of information may constitute inside information in accordance with Article 7 of MAR. This also includes the consensus of market analysts’ expectations. As a side note, ESMA notes that delayed disclosure of inside information is likely to mislead the public “where the inside information is in contrast with the market’s expectations, where such expectations are based on signals that the issuer has previously sent to the market, such as interviews, roadshows or any other type of communication organized by the issuer or with its approval”

With regard to MiFID II and MiFIR market structures topics, clarification has been provided that a trading venue may set instrument-level trading hours for a specific sub-set of financial instruments (or for a specific financial instrument), provided that such specific trading hours (and the instruments to which they apply) are made public and communicated by the venue to market participants. As an example, trading venues may set specific trading hours based on the trading hours of the underlying market (where applicable) to facilitate liquidity provisions by market makers.