MAR prohibits individuals and firms from (1) engaging or attempting to engage in insider dealing, (2) from recommending that another person engage in insider dealing, and (3) from inducing another person to engage in insider dealing.1 MAR also prohibits a person from unlawfully disclosing information,2 market manipulation, and attempted market manipulation.3
Insider dealing occurs when:
- a person is in possession of inside information and
- uses that informationeither by acquiring or disposing of financial instruments to which the information relates or
by cancelling or amending an order where the order was placed before the person concerned possessed the inside information.4
Recommending or inducing another person to engage in insider dealing occurs when:
- a person possessing inside information
- on the basis of that information
- either recommends that another person acquire or dispose of financial instruments or cancel or amend an order to which that information relates or induces another person to make an acquisition or disposition or cancel or amend an order concerning a financial instrument to which that information relates.5
The recipient of the recommendation commits insider dealing when he knows or ought to know that it is based on inside information.6
Unlawful disclosure of inside information occurs when:
- a person possesses inside information and
- discloses the information to any other person, except where the disclosure is made in the normal course of employment, a profession, or duties.7
MAR requires market operators and investment firms operating a trading venue to establish and maintain effective arrangements, systems, and procedures aimed at preventing and detecting any actual or attempted insider dealing and to report suspicious transactions and orders (STORs), including any cancellations or modification thereof, to the FCA.8 Relevant trading venues include a regulated market, multilateral trading facility (MTF), or organized trading facility (OTF).
MAR also requires persons professionally arranging and executing transactions in financial instruments to report STORS whether they are regulated or unregulated firms.9 This includes buy-side firms, such as asset management firms, as well as firms professionally engaged in trading on their own account. It can also include non-financial firms that, in addition to the production of goods and/or services, trade on their own account in financial instruments as part of their business activities. For more, see Question 6.1 of the ESMA Questions and Answers on the Market Abuse Regulation, available here.
For more on effective insider dealing compliance programs, see here.
1 Regulation 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) (MAR), art. 14(a)-(b).
2 Id., art. 14(c).
3 Note that market manipulation and attempted market manipulation are not currently covered on Willkie Compliance Concourse. Contact us for advice on these topics.
4 MAR, art. 8(1).
5 Id., art. 8(2).
7 Id., arts. 10, 14(c).
8 Id., art. 16(1).
9 Id., art. 16(2).