Introduction
MAR stipulates that persons with inside information acting on the issuers behalf or account must keep their own insider lists. Below are some practical questions and answers on the role of advisors as they relate to insider lists under MAR.
Why have I received a request for acknowledgement?
All companies subject to MAR are required to maintain a list of persons who have access to inside information, including any advisers acting on their behalf (Article 18(1), UK/EU MAR). Each insider list must be in a prescribed format (including detailed personal information for each contact, and the time/date of their inclusion on the list), and the company must take all reasonable steps to ensure that every person provides an acknowledgement of their obligations under MAR. If you are a primary contact for an adviser, then the company is required to record your access to inside information both as:
- a natural person (in a personal capacity); and
- as a representative for a legal person (e.g. your employer).
The company is also required to notify you of the adviser’s responsibility to keep a separate insider list. You have therefore been asked to provide an acknowledgement of your MAR obligations in a personal capacity and given a notice that explains you are required to keep your own insider list as an adviser.
I’m already on an adviser’s insider list. Do I need to respond?
Yes. Companies and their advisers have separate obligations to keep an insider list, but the inclusion of you on an adviser’s list does not relieve the company of its own obligation under MAR to include you on theirs (as clarified by ESMA Q&A Q10.2).
If you are a primary contact for an adviser working with a company subject to MAR, then you will be on two insider lists.
What is current industry practice?
Guidelines from most industry associations are clear, companies should include a natural person as a contact on its insider list for each adviser acting on its behalf.
The GC100 (a working group for the General Counsel of the FTSE 100) provides the following practice note: “In each insider list for a project that involves external advisers and agents, include details of the principal contacts at advisers and agents who have access to inside information.”
Both memos you have been provided with have been written based on GC100 recommendations.
Has the FCA provided any guidance?
The FCA has not provided formal guidance on the matter, however we received the following Q&A response from the Market Abuse Policy team in Nov-21 (emphasis added):
Q: Please could you confirm where Article 18(1) requires a person acting on the behalf of an issuer (such as an adviser/lawyer/accountant) to keep their own insider list, should that person also be included on the issuer’s original insider list or are they exempt (assuming they will be listed on the separate insider list that they are required maintain)?
A: […] At a high-level, the purpose of the insider list requirement is for the issuer to identify and manage who has access to inside information, e.g. who it has given access to inside information. Therefore, the issuer should include a person acting on their behalf, who the issuer has provided access to inside information, on their insider list. In addition, the person acting on their behalf should include on their insider list the persons they have provided access to inside information. The FCA makes it clear that it expects
What about other regulators, do they also require this?
UK/EU MAR is remains almost identical, and so guidance from other European regulators can provide helpful context. BaFin (the German financial supervisory authority) provides a comprehensive Q&A which provides further clarity on the role of advisers and their inclusion on insider lists:
Q: What information must issuers include in the insider list about persons acting on their behalf or on their account ("service providers" such as attorneys, business consultants, tax advisors, investor relations agencies, external accountants, auditors)?
A: In its insider list the issuer shall note that such a service provider has been engaged or that insider information has been disclosed to such a service provider and shall note the date/time of engagement or disclosure. It shall be sufficient to provide the identity of a contact person for the service provider. All of the information prescribed by Annex I of Commission Implementing Regulation (EU) 2016/347 must be provided for such contact person in the insider list.
Implementing Regulation (EU) 2016/347 requires full disclosure of personal details for inclusion in an insider list. This is consistent with the approach of the FCA, which requires companies to record the same personal details for any person acting as a contact for an adviser
