Overview
On 19th February 2026, the European Securities and Markets Authority (“ESMA“) published a consultation paper proposing amendments to its Guidelines on the delay in the disclosure of inside information under the Market Abuse Regulation (“MAR“) (Regulation (EU) No 596 / 2014) (the “Consultation Paper”). The proposed revisions are driven primarily by the entry into force of the EU Listing Act (Regulation (EU) 2024 / 2809) and represent a significant recalibration of the delayed disclosure framework under MAR.
Background: The Listing Act Changes
Under MAR, issuers are required to disclose to the public, as soon as possible, the inside information that directly concerns them. Currently, intermediate steps in a protracted process are subject to the disclosure obligation if they qualify as inside information. Exceptionally, issuers are permitted to temporarily delay such disclosure, provided that they have a legitimate interest to delay; the public will not be misled and confidentiality of that information is ensured.
The Listing Act amended MAR by stipulating that, from June 2026, protracted processes will no longer be subject to the obligation of disclosure of inside information until completion. Additionally, the Listing Act replaced the condition that a delay should not mislead the public with a requirement that the information the issuer intends to delay should not be in contrast with its latest announcement on the same matter.
The changes to the regime for the disclosure of inside information will enter into application on 5th June 2026.
Key Proposed Changes to the Guidelines
1. Removal of Protracted Process-Related Legitimate Interests (Guideline 1)
Since intermediate steps in a protracted process are no longer subject to disclosure before a process is completed, issuers will generally not need to resort to the delay mechanism for information regarding protracted processes. This is expected to result in issuers being required to make less frequent use of the delayed disclosure mechanism available in terms of Article 17(4) of MAR. Having said that, in connection with the disclosure of inside information in a protracted process, an issuer’s wider obligation in terms of MAR to assess whether information concerning the intermediate steps in a protracted process qualifies as ‘inside information’ continues to apply in relation to other obligations under MAR which have not been amended by means of the Listing Act, such as the obligation for issuers to draft and maintain insider lists as well as to ensure confidentiality of the information.
As a result of the above, ESMA is proposing to delete from Guideline 1 those legitimate interests which relate to a protracted process covered by the European Commission’s non-exhaustive list of protracted processes, specifically the legitimate interests currently listed under points (a), (c), (d), (e), (f), (g) and (h) of Guideline 1.
Point (b) of Guideline 1 — which concerns situations where the financial viability of the issuer is in grave and imminent danger and immediate disclosure would seriously prejudice the actions aimed at restoring that viability — appears to, so far, remain a case of legitimate interest. ESMA is seeking market participants’ views on whether to retain it.
2. New Legitimate Interests to be Added
To provide clarity in the new regime, ESMA proposes adding three new categories of legitimate interest to Guideline 1:
- Orders from a public authority: ESMA concludes that the need to comply with an order from a public authority may qualify as a legitimate interest for the purpose of delaying disclosure, for example where public authorities may order an issuer not to disclose the tender award in a public procurement process on the basis of the applicable law, or to maintain the confidentiality on the grounds of public policy, public security and public health.
- Need to collect further information: In cases such as major incidents or cyber-attacks, an issuer may need time to collect data regarding the event and its consequences before issuing an announcement, and may therefore have a legitimate interest to delay disclosure in order to provide correct information and avoid the negative signals that may result from a premature disclosure.
- Parallel procurement processes: Where an issuer participates in more than one public procurement procedure with similar subject but different deadlines, and is awarded a contract in one of them while bids for other tenders are still open, disclosure of the first award could allow competitors to adjust their bids. ESMA recognises that in such a case the issuer may have a legitimate interest to maintain confidentiality to ensure open competition and avoid losing business opportunities.
3. Removal of Guideline 2 on Misleading the Public
The Listing Act amended Article 17(4)(b) of MAR by replacing the condition that the delay should not mislead the public (this currently being a condition for the delay of inside information), with the requirement that the information which the issuer intends to delay should not be in contrast with its latest announcement by the issuer on the same matter.
ESMA is proposing to remove Guideline 2 relating to “situations in which delay of disclosure of inside information is likely to mislead the public” in its entirety, as it is no longer covered by ESMA’s mandate following the Listing Act amendments. The European Commission will instead address this topic through a delegated act.
Next Steps and How to Respond
The Consultation Paper is open for feedback until 29th April 2026, following which the new MAR delay in disclosure of inside information regime will enter into application on 5th June 2026. A Final Report containing a summary of all consultation responses and a final version of ESMA’s Guidelines is expected to be published on ESMA’s website in Q4 2026.
All interested stakeholders are invited to respond to ESMA, with the Consultation Paper being of primary interest to issuers, including SMEs, and trading venues, though responses are also sought from any other market participant including trade associations and industry bodies, institutional and retail investors, consultants and academics.
Please reach out if you would like to discuss the implications of these proposals and how they are expected to impact the delay in disclosure of inside information regime under MAR.
