ESMA updates its MAR Q&A on inside information in the context of collective investment undertakings (with examples)

ESMA updated its Market Abuse Regulation (MAR) Q&As with non- exhaustive examples where inside information might arise for listed collective investment undertakings (CIUs). ESMA notes that under Article 7 of MAR, inside information is information that is non-public, precise, directly or indirectly related to one or more financial instruments or issuer, and if it were made public would be likely to have a significant effect on the price of the issuer's financial instrument or related financial instruments. ESMA lists a non-exhaustive list of cases where inside information may arise. ESMA does not aim to cover all the possible instances of inside information.

Ultimately, the final assessment has to be made on a case-by-case basis. Moreover, some of the situations may not constitute inside information in all cases. For CIUs admitted to trading/traded on a trading venue in general (including ETFs) the following situations are proposed as potential cases of inside information:

• any situation with significant impact (appreciation or depreciation) on the valuation of the CIU assets and, as a result, on the value of the CIU's units
   
• cases where the CIU has been affected by fraud, theft or an adverse tax ruling
   
• unexpected circumstances in the creation/redemption of units of a CIU, including:
   
  • any situation under which the CIU cannot issue/redeem its units
     
  • creation of excessive or insufficient units due to a material mistake
     
• events that will directly affect the liquidity of the market in units of an ETF arising from events impacting the entities acting as counterparties in the secondary market: bankruptcy of the official liquidity provider/s, absence of authorised participants, decision to change the segment on which the CIUs are traded and so on
   
• failure or delay of a counterparty to an OTC derivative impacting the return or the risk of the CIU
   
• failure or delay of a counterparty in a securities lending transaction
   
• issues related to the total or partial liquidation of the CIU's assets, such as:
   
  • imminent insolvency or termination of the CIU, or a sub-fund where the CIU is an umbrella fund
     
  • partial liquidation of the CIU's units
     
  • modalities and payment terms preceding the liquidation or delisting of the CIU.
     
• for real estate CIUs admitted to trading/traded on a trading venue, inside information according to Article 7 of MAR may also arise in the context of significant events related to the acquisition, sale or management of the CIU's real estate assets, including rents renegotiation or possible relevant losses derived from legal disputes.

ESMA also confirms that a CIU without legal personality is subject to the obligation to disclose inside information under Article 17 of MAR and the obligation should be discharged by the relevant asset manager.