Shall an insider list be drawn up even though inside information is disclosed as soon as possible?
Companies with financial instruments admitted to trading on a regulated market or multilateral trading facility (MTF) are, according to the EU Market Abuse Regulation (MAR), obliged to draw up an insider list when inside information arises. An insider list is a list of all persons who have access to the inside information and is drawn up to enable the company to keep track of which persons that have access to specific inside information. Furthermore, the insider list is an important tool for the regulatory authority when investigating possible market abuse.
In a sanction decision issued in October 2021, the Swedish Financial Supervisory Authority (Sw. Finansinspektionen) (the “SFSA”) imposed an administrative fee against a company listed on the MTF-platform Nasdaq First North Growth Market due to, among other things, the company disregarding the requirement to draw up an insider list in accordance with MAR. The company argued that they had not been obliged to draw up an insider list, as the company had chosen to disclose the inside information as soon as possible rather than resolving on a delayed disclosure of the inside information. However, the SFSA held that the obligation to draw up an insider list exists regardless of whether the inside information is disclosed as soon as possible, or the disclosure of the inside information is delayed.
In a recently issued ruling (case no. 32599-21), the administrative court in Stockholm confirms the SFSA’s interpretation of MAR, meaning that an insider list shall be drawn up promptly when insider information arises, even though the company intends to disclose the information as soon as possible.
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