Revised MAR Guidelines on Delayed Disclosure of Inside Information

On 16 October 2026, the European Securities and Markets Authority (“ESMA”) published its Final Report on the MAR Guidelines on delay in the disclosure of inside information (“Final Report” or “Guidelines”), setting out its final amendments to the guidelines following the changes to the disclosure framework introduced by the EU Listing Act.

The Final Report follows ESMA’s consultation launched in February 2026, which we discussed in our February 2026 update. The revised Guidelines are intended to bring ESMA’s guidance on delayed disclosure into line with the revised Article 17 of the Market Abuse Regulation (“MAR”), which has applied since 5 June 2026.

Recap: changes to the MAR disclosure regime

As outlined in our earlier updates, the Listing Act introduced an important simplification to the disclosure regime for inside information arising during a protracted process. Under the amended article 17 MAR, inside information relating to intermediate steps in a protracted process is no longer subject to the disclosure obligation. Instead, only the final event or final circumstances must be disclosed as soon as possible once they occur. Intermediate steps therefore no longer need to be dealt with through the delayed disclosure mechanism.

The Listing Act also amended the conditions for delaying disclosure. In particular, the former requirement that delay must not be likely to “mislead the public” has been replaced by a requirement that the inside information being delayed must not be in contrast with the issuer’s latest public announcement or other communication on the same matter. The requirements that immediate disclosure would prejudice the issuer’s legitimate interests and that confidentiality can be ensured remain in place.

These changes are supplemented by Commission Delegated Regulation (EU) 2026/789 (“Delegated Regulation”), which sets out a non-exhaustive list of final events or circumstances in protracted processes and identifies when those events or circumstances are deemed to have occurred. It also sets out a non-exhaustive list of situations where delayed information would be in contrast with an issuer’s previous public communications. We discussed the Delegated Regulation in more detail in our July 2026 update.

ESMA’s revised approach to legitimate interests

Against this background, ESMA has now finalised its amendments to the Guidelines.

As originally proposed in the consultation, ESMA has removed a number of existing examples of legitimate interests which relate to intermediate steps in protracted processes. This reflects the fact that those intermediate steps are no longer subject to the disclosure obligation under the revised regime and therefore do not require reliance on the delayed disclosure mechanism.

At the same time, ESMA has retained and clarified the existing legitimate interest concerning situations of serious and imminent financial distress. This is intended to apply restrictively to early-stage financial distress falling outside the protracted processes covered by the Delegated Regulation, where the issuer is actively pursuing concrete measures to restore its liquidity and capital. ESMA expressly distinguishes this from a mere deterioration in financial performance, such as a profit warning.

ESMA has also introduced a number of new examples of circumstances which may constitute a legitimate interest for delaying disclosure. These include situations where:

1. an issuer is required by a public authority to maintain confidentiality, including an authority of a Member State, the EU or a third country, where the order is based on law, a specific legal provision or powers otherwise recognised by case law;
2. additional information needs to be collected following an exceptional event or circumstance, such as a major incident or cyber-attack, where further information is necessary to enable the market to make a correct assessment of the inside information;
3. disclosure of commercially sensitive information could directly result in the loss of an identifiable and concrete business opportunity, including in public or private competitive processes;
4. an issuer has appointed a member of its governing body, a manager or another person holding a key position, but that person has not yet informed their current employer of their intention to terminate their existing employment and immediate disclosure could jeopardise the effectiveness of the appointment; and
5. the same inside information concerns companies within the same group, where another group company has validly delayed disclosure and immediate disclosure by the issuer would cause it direct prejudice and undermine the effectiveness of the other company’s delay.

The latter two legitimate interests were added following feedback received during the consultation and were not included in ESMA’s original proposal.

Some important qualifications

The Final Report also contains a number of useful clarifications on how these legitimate interests should operate in practice.

In relation to exceptional events such as cyber-attacks, ESMA confirms that information about a sufficiently severe incident may already constitute inside information even where the issuer has not yet been able to determine the full extent of the damage. In those circumstances, disclosure may only be delayed for the time necessary to collect sufficient information to avoid a potentially misleading announcement. ESMA indicates that once a rough estimate of the damage becomes possible, disclosure should take place, with further detail capable of being provided subsequently.

Similarly, the new legitimate interest concerning commercially sensitive information is not limited to public procurement. ESMA has extended it to private competitive contexts, provided that there is an identifiable and concrete business opportunity which may be directly jeopardised by disclosure of the commercially sensitive information.

Interestingly, ESMA declined to recognise contractual confidentiality obligations as a standalone legitimate interest. In ESMA’s view, allowing voluntarily agreed confidentiality clauses to justify delay could give issuers excessive discretion over whether information should be disclosed under MAR.

ESMA has also stressed that the list of legitimate interests remains non-exhaustive and indicative. Issuers may therefore identify other legitimate interests capable of justifying delayed disclosure on a case-by-case basis. However, the existence of a legitimate interest is only one of the conditions for delay: the delayed information must also not be in contrast with the issuer’s latest public announcement or communication on the same matter and the issuer must be able to maintain confidentiality.

Given that disclosure as soon as possible remains the general rule under article 17(1) MAR, ESMA emphasises that legitimate interests justifying delay should be interpreted restrictively and that disclosure should take place as soon as the circumstances justifying the delay cease to exist.

Removal of the “misleading the public” guidance

Finally, ESMA has removed the existing Guideline dealing with situations in which delayed disclosure is likely to mislead the public.

This follows directly from the Listing Act amendments, which replaced that condition with the new requirement that the delayed inside information must not be in contrast with the issuer’s latest public announcement or other communication on the same matter. The circumstances in which such a contrast exists are now addressed by the Delegated Regulation.

Mark-up of the changes

Annex I to the Final Report includes a helpful mark-up showing the proposed changes to the Guidelines.

Next steps

The revised Guidelines will apply from the date on which they are published on ESMA’s website in all official EU languages.

Author’s note: As at the date of this update, the translations into all official EU languages do not appear to have been published on ESMA’s website. Accordingly, the revised Guidelines do not yet appear to be applicable.