2012年-CEPS欧洲政策研究中心_Reviewing_the_EUs_Market_Abuse_Rules_5页_443kb

Summary of "Reviewing the EU's Market Abuse Rules" by Carmine Di Noia

Core Content

The paper reviews the EU's proposed legislative package on market abuse, which includes a draft Regulation and a new Directive on criminal sanctions. It argues that the rules should be technically sound, proportionate, and clear, while also ensuring more efficient and harmonised supervision across member states. The focus is primarily on the draft Regulation, which aims to replace the existing Market Abuse Directive (MAD) and its level 2 measures.

Main Views and Key Information

1. The Notion of Inside Information

• The draft Regulation introduces a new definition of "inside information not to abuse" (Art. 6(e)), which is only relevant for abuse purposes.
• This new notion lacks the criteria of "precision" and "price sensitivity" that were previously used to define inside information.
• The author criticises this as it may lead to legal uncertainty and increase the risk of criminal liability for financial intermediaries.
• The obligation to disclose inside information is still based on the "not misleading" principle, which is problematic because it is often impossible to comply with.
• The author proposes:
  • Deleting Art. 6(e).
  • Reverting to the "old" definition of inside information for disclosure obligations (from Directive 2001/34/EC).
  • Modifying the "not misleading" requirement to allow disclosure only when there is sufficient certainty, to avoid market manipulation.

2. Inside Information, Takeover and Buying Shares

• The draft Regulation removes recitals 29 and 30 from the MAD, which were important for protecting merger and acquisition activities.
• Recital 29 excluded the communication of inside information from the target to the bidder as a breach of confidentiality.
• Recital 30 excluded the obligation for the bidder to disclose inside information about the purpose of the takeover.
• The author argues that these recitals should be reintroduced, possibly in Art. 6, to prevent the collapse of takeover activities due to premature price increases.

3. Treatment of Rumours and Market Manipulation

• Rumours can spread before an obligation to disclose inside information arises, potentially causing market volatility.
• There is no clear rule on how issuers should respond to such rumours.
• The author suggests that listed companies should be required to comment only if:
  • The rumour is true.
  • There are abnormal price or volume movements.
• Otherwise, "no comment" policies should be allowed.
• The paper also notes that the current framework may lead to the disclosure of incomplete or misleading information, which could result in criminal liability.

4. Managers' Transactions

• The draft Regulation raises the threshold for disclosure obligations, which may reduce the number of trades that need to be reported.
• The author proposes that the threshold should reset to zero each time it is reached, to avoid insignificant notifications.
• The deadline for communication has been shortened to two business days, which may create challenges for companies, especially when transactions are made by persons closely associated with managers.
• The author supports a more harmonised approach for managers' transactions across the EU.

5. Insiders' Lists

• The utility of insiders' lists for listed companies has been questioned, particularly in multinational contexts.
• The extension of the definition of inside information may increase compliance costs for companies.
• The author suggests simplifying insiders' lists for all SMEs, regardless of the market type (regulated or MTFs).

6. Extension of Disclosure Obligations to MTFs

• The author argues against extending disclosure obligations to issuers whose shares are traded on demand only on 'listing' MTFs.
• SMEs often choose MTFs for their less costly regulatory requirements.
• Imposing disclosure obligations on MTFs could hinder capital raising and increase compliance costs.
• The author suggests that any extension of disclosure obligations should be left to member states, with a voluntary approach by MTFs.

7. Accepted Market Practices (AMPs)

• The draft Regulation removes AMPs, which are seen as "safe harbours" for market participants.
• The author argues that AMPs should be kept, as many member states have already adopted similar practices.
• The removal of AMPs may lead to a loss of benefits and could be detrimental to market efficiency.
• The author suggests that the European Securities and Markets Authority (ESMA) should play a stronger coordination role in this area.

Conclusion

The paper calls for a more technically sound, proportionate, and clear market abuse framework, with greater harmonisation and supervision across the EU. It highlights the need to revisit definitions and obligations, particularly around inside information, managers' transactions, and disclosure requirements for MTFs, to ensure they do not inadvertently restrict market activity or increase compliance costs. The author also advocates for the retention of AMPs to promote market efficiency and stability.