European Union: Mad II -EU Regulation (MAR) And Directive (CS MAD) As Protection Of Investors And Its Application To All Jurisdictions

Last Updated: 12 September 2019
Article by Olga Pshenichnaya

Protection of financial market investors and prevention of unlawful disclosure of inside information and financial market manipulation is provided and guaranteed by the EU Market Abuse Regulation (Regulation 596/2014) (MAR) and the Directive on criminal sanctions for insider dealing and market manipulation (Directive 2014/57/EU) (CSMAD), which collectively replace the previous Market Abuse Directive (MAD) and together is known as MAD II.

MAR is applicable to financial instruments admitted to trading on a regulated market, or for which a request for admission to trading on a regulated market has been made, or where financial instruments admitted to trading or traded on Multilateral Trading Facilities (MTF), or for which a request for admission to trading on Multilateral Trading Facilities (MTF) has been made, or financial instruments traded on Organised Trading Facility (OTF) and emission allowances.

There are only some exceptions, which include:

(a) trading in own shares in buy-back programs or trading in securities for the stabilization of securities, when the conditions laid down in MAR are met, apply under the provisions 11 and 12 of the Regulation:

"(11) Trading in securities or associated instruments for the stabilisation of securities or trading in own shares in buyback programmes can be legitimate for economic reasons and should, therefore, in certain circumstances, be exempt from the prohibitions against market abuse provided that the actions are carried out under the necessary transparency, where relevant information regarding the stabilisation or buy-back programme is disclosed;

(12) Trading in own shares in buy-back programmes and Stabilising a financial instrument which would not benefit from the exemptions under this Regulation should not of itself be deemed to constitute market abuse.";

(b)MAR is not applicable to public authorities;

(c) the EU's climate and agricultural policies.

The Sanction rules are provided under the Directive on criminal sanctions for insider dealing and market manipulation (Directive 2014/57/EU) (CSMAD) and the Implementation of technical standards (ITS) by the EU Authority ESMA.

The peculiarity of MAR is its application to all jurisdictions. The compliance requirements of MAR apply to legal entities of any jurisdiction-issuer of financial instruments, which are traded with EU regulated markets or any party of financial transactions related to such financial instruments, regardless of the place of transaction.

As an example, we can look at the application of MAR to Russian companies. Specifically, this can be applied to Russian companies in cases where a Russian company is an issuer of Financial EU instruments, or where a Russian company organizes and executes transactions with EU financial instruments, or where a Russian company invests in EU financial instruments.

Let us consider each case in detail.

  1. A Russian company is an issuer of Financial EU instruments

A Russian company is considered an issuer when it issues EU financial instruments, regardless of the number of such instruments. As an issuer, it is obliged to maintain two lists of insiders; the first pursuant to MAR and, another similar list, pursuant to the Russian legislation and to disclose insiders' information to EU Financial authorities to be available to investors of EU .The directors and persons related to them are obliged to report in relation to financial transactions, to the same issuers as well as to the EU Financial authorities provided by MAR.

  1. A Russian company organizes and executes transactions with EU financial instruments

When a Russian company receives and gives instructions concerning EU financial instruments acting as a broker, or directly executes financial transactions with EU financial instruments, it is obliged to comply with MAR requirements. In particular, to create and support internal procedures of monitoring of transactions and identifying of suspicious transactions or instructions and to report them to the EU Financial authorities in accordance with MAR.

  1. A Russian company invests in EU financial instruments

It is necessary to highlight the fact that in the case of investment in EU financial instruments by Russian companies as in the two other aforesaid cases, Russian companies, and, in particular, its executives and persons related to them, have to comply with the requirements of MAR and not to confuse that with the similar requirements of the Russian legislation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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