ESMA Adds Five Legitimate Interests to Inside-Information Delay Rules

The European Securities and Markets Authority updated and streamlined its Market Abuse Regulation (MAR) guidelines on the delay in the disclosure of inside information on 16 October 2026, completing the revised regulatory framework with five additional legitimate interests that can justify a delay and the removal of legitimate interests connected to protracted processes.

Under MAR, issuers must disclose the inside information concerning them as soon as possible so that investors are informed and insider dealing is prevented. In specific circumstances, issuers may delay public disclosure to avoid prejudicing their legitimate interests, and the guidelines support that decision with a non-exhaustive list of legitimate interests that could justify a delay.

According to ESMA, the five additional legitimate interests identified following a public consultation cover situations where a public authority requests the issuer not to disclose information; where the issuer needs to collect additional information to enable a correct assessment of the inside information by market participants; where the issuer risks losing a business opportunity following the disclosure of sensitive commercial information; where the appointment of a member of the issuer’s governing body or a manager holding a key position could be jeopardised; and where the disclosure of inside information concerning companies within the same group could directly prejudice the issuer and undermine the effectiveness of a delay applied by another group company.

Since June 2026, issuers are no longer required to immediately disclose inside information related to protracted processes before their completion. ESMA stated that, in line with its simplification and burden-reduction objectives, it removed from the guidelines the legitimate interests for delayed disclosure connected to those processes.

Listing Act Background

The Listing Act legislative package was published in the Official Journal of the European Union on 14 November 2024 and entered into force 20 days later; its Regulation (EU) 2024/2809 of 23 October 2024 amended the Prospectus Regulation, MAR and MiFIR. Pursuant to its Article 4(3), the changes to the MAR disclosure regime entered into application on 5 June 2026.

The new Article 17(1) of MAR provides that the obligation to inform the public as soon as possible does not apply to inside information related to intermediate steps in a protracted process; only the final circumstances or final event must be disclosed, as soon as possible after they have occurred. A new Article 17(4a) exempts intermediate-step information from the requirements for delayed disclosure, and Article 17(7) requires disclosure as soon as possible if the confidentiality of that information is no longer ensured.

The Listing Act also replaced the Article 17(4)(b) condition that a delay not be likely to mislead the public with a requirement that “the inside information that the issuer or emission allowance market participant intends to delay is not in contrast with the latest public announcement or other type of communication by the issuer or emission allowance market participant on the same matter to which the inside information refers,” the final report states. The other two delay conditions, that immediate disclosure would be likely to prejudice a legitimate interest and that the issuer can maintain confidentiality, remained unchanged.

Commission Delegated Regulation (EU) 2026/789 of 8 April 2026, which establishes a non-exhaustive list of protracted processes and identifies when the relevant final event is deemed to occur and must be disclosed, was published in the Official Journal on 16 July 2026. ESMA received the European Commission’s request for technical advice on the delegated act in June 2024 and published its advice in May 2025. The Listing Act also replaced ESMA’s original Article 17(11) mandate with one directing it to issue guidelines establishing a non-exhaustive indicative list of the legitimate interests of issuers; the guidelines were first published on 20 October 2016 and previously reviewed on 13 April 2022.

Consultation Outcome and Final Wording

ESMA published a consultation paper in February 2026 containing four questions. The consultation closed on 29 April 2026 and drew feedback from 28 respondents, most of them issuers, and ESMA also sought advice from its Securities and Markets Stakeholder Group (SMSG).

On orders by public authorities, ESMA clarified that the reference to powers otherwise recognised means powers recognised by case law, that the definition of public authority includes third-country authorities, and that the delay lasts only as long as the order requires, with disclosure due as soon as the order expires. ESMA suggested that issuers keep records supporting the written explanation to national competent authorities required under Article 17(4).

On the collection of further information after an exceptional event such as a major incident or cyber-attack, ESMA stated that disclosure should take place as soon as a rough estimation of the damage is possible, before a detailed analysis, and that issuers may provide further information later. It rejected fixed time limits, such as 48 hours for cyber incidents, in favour of case-by-case assessment, and declined to extend the legitimate interest to analysis of collected data or remediation actions, which it said would excessively delay informing the market. MAR disclosure obligations apply without prejudice to incident-notification obligations under NIS 2, DORA and the GDPR.

On business opportunities, ESMA extended the legitimate interest beyond the public procurement example in its original proposal to private competitive contexts, requiring an identifiable and concrete business opportunity that may be directly jeopardised by the disclosure of commercially sensitive information. The final examples include participants in parallel tenders adjusting their bids using disclosed terms, and disclosure of agreements or decisions to enter a new market or launch a new product enabling competitors to adjust their strategy. ESMA recalled that, because maintaining confidentiality is a condition for delay, issuers must disclose once the concrete steps needed to adopt a strategy no longer allow confidentiality.

Two further interests were added after the consultation. An issuer may delay disclosure of a decision to appoint a governing-body member, manager or other person in a key role where the individual has not yet informed their current employer, limited to the formally taken decision and the period strictly necessary. And where one group entity has delayed disclosure under Article 17(4), another entity in the same group may have a legitimate interest in delaying the same information for the same period when it directly concerns both. ESMA stressed that this creates no automatic group-wide legitimate interest and that Article 10 of MAR continues to restrict intra-group disclosure of inside information to the normal exercise of employment, profession or duties.

ESMA deleted points (a), (c), (d), (e), (f), (g) and (h) of Guideline 1, which related to intermediate steps in protracted processes, and deleted Guideline 2 on situations in which delay is likely to mislead the public in its entirety because the subject is no longer covered by its mandate; no consultation feedback opposed the Guideline 2 deletion. It retained the former point (b) on financial viability, replacing the insolvency-law term viability of the issuer with the broader and less technical term financial distress and restricting the interest to early-stage distress not covered by the delegated act where the issuer actively pursues concrete measures to restore liquidity and capital. ESMA stated the interest does not extend to a mere deterioration in financial performance, such as profit warnings, which remain subject to Article 17(1). Of the 26 respondents answering the question, 24 supported retaining the interest and two opposed.

ESMA declined to add legitimate interests for the resignation of key executives, stating that a delay would conceal a governance vacuum; for prior coordination with third parties, authorities or staff, which it described as part of the safeguards required for timely disclosure; and for contractual confidentiality clauses, citing a risk of misuse because voluntarily inserted clauses would give issuers excessive discretion over disclosure timing. It treated regulatory investigations, tax rulings and regulatory negotiations as intermediate steps in protracted processes and court orders or interim injunctions as covered by the new public-authority point.

ESMA stated that the list remains non-exhaustive, that issuers may identify additional legitimate interests through case-by-case assessment, and that, because Article 17(1) requires disclosure as soon as possible, the listed interests must be interpreted restrictively. Once an issuer establishes that inside information exists, it should first assess whether the information is an intermediate step in a protracted process using the delegated act’s list; the delay mechanism applies to one-off events and to final events or circumstances, provided all conditions are met.

The revised guidelines will apply from the date of their publication on ESMA’s website in the 24 official languages of the European Union and are addressed to competent authorities designated under Article 22 of MAR and to issuers. Within two months of publication in all EU languages, competent authorities must notify ESMA whether they comply, do not comply but intend to comply, or do not comply and do not intend to comply, with reasons required in case of non-compliance; issuers are not required to report whether they comply. ESMA’s cost-benefit analysis identifies no new obligations for competent authorities, no new procedural requirements for issuers and no compliance costs.

The guidelines retain the existing guidance on Pillar 2 capital requirements (P2R) and Pillar 2 capital guidance (P2G), under which P2R is expected to be considered inside information except in a very limited number of cases following a thorough assessment by the institution. The SMSG adopted its advice on 26 May 2026, broadly supporting the revisions while drawing attention to “a significant transitional guidance gap between 5 June 2026 and the expected publication of final Guidelines in Q4 2026” and recommending that ESMA provide interim guidance.