Ad hoc disclosure of intermediate steps under the Listing Act and Delegated Regulation
With the EU Listing Act, ad hoc disclosure for issuers has been realigned in a key respect. Since 5 June 2026, Art. 17(1) subpara. 1 sentences 2 and 3 of the Marktmissbrauchsverordnung (MAR, Market Abuse Regulation) has excluded information on intermediate steps in protracted processes from the obligation of immediate disclosure as long as the final event has not yet occurred.
In addition, the Delegierte Verordnung (EU) 2026/789 (Delegated Regulation (EU) 2026/789) entered into force on 19 July 2026. Its official title is Commission Delegated Regulation (EU) 2026/789 of 8 April 2026 supplementing Regulation (EU) No 596/2014 as regards the disclosure of inside information in protracted processes and the delay of disclosure. It specifies the new mechanism through three annexes, in particular through a non-exhaustive catalogue of final events.
For issuers, this does not mean the abolition of insider law. Insider dealing prohibitions, disclosure prohibitions and insider list obligations remain relevant also in the case of intermediate-step inside information. What is new above all is that the obligation to make an ad hoc disclosure for intermediate steps generally arises only when the final event occurs, provided confidentiality is maintained.
Starting point: inside information and protracted process
Inside information under Art. 7 MAR
Inside information exists under Art. 7(1) MAR where non-public, precise information directly concerns the issuer and is likely to have a significant effect on the price of a financial instrument. Art. 7(2) MAR makes clear that information on intermediate steps within a protracted process may also constitute precise information, even though the final event has not yet occurred.
However, an intermediate step does not become inside information solely because it is part of a larger project. Under Art. 7(3) MAR, the intermediate step must, in itself, meet the requirements of inside information. In particular, precision, price relevance and a direct connection to the issuer remain required.
New principle: statutory exemption until finality
With the new rules, the EU legislature recognises a corporate interest in controlling communication about project stages that are still uncertain. In practice, this interest already existed for early preparatory acts, for example initial soundings in the context of an M&A transaction, preliminary discussions regarding a change in a management body, or the initiation of internal investigations due to a suspected compliance issue.
The statutory exemption extends this approach to intermediate-step inside information. As long as the final event has not yet occurred and the information remains confidential, there is no obligation of immediate ad hoc disclosure. The mechanism is not based on an individual decision by the issuer, but operates by operation of law.
Control over communication as the guiding principle of the reform
Investor protection and the issuer’s communication interest
Ad hoc disclosure serves to protect the capital market against information asymmetries. Investors should, in principle, receive price-sensitive information immediately so that price formation is not distorted by one-sided information advantages. This purpose remains in place after the Listing Act.
At the same time, the reform takes account of the fact that premature disclosure of intermediate steps may mislead the market or at least cause an incomplete assessment. Recital 67 of the Listing Act refers to the risk that the market may misclassify information about a still uncertain final event if the issuer were forced to disclose it prematurely.
However, this reasoning explains the reform only in part. Market abuse law already previously contained requirements against incorrect or misleading information. The broader purpose is to make the capital market more attractive for issuers and to reduce the previous burdens arising from delay decisions and their documentation.
Defensive and offensive aspects of control over communication
Control over communication initially has a defensive effect. Issuers may withhold confidential information about intermediate steps as long as the statutory exemption applies. This concerns both intermediate-step inside information and information that, due to a lack of precision or price relevance, is not yet to be classified as inside information.
In addition, there is an offensive dimension. The statutory exemption only states when no disclosure obligation exists. It does not preclude an issuer from communicating voluntarily, provided the limits of market abuse law are observed.
In practice, this may concern the following scenarios in particular:
- a voluntary ad hoc announcement regarding intermediate-step inside information, even though the final event has not yet occurred,
- communication about facts that are not yet sufficiently precise within regular investor relations formats,
- the classification of information already publicly known in a current context, provided this does not create new inside information.
Requirements and limits of the statutory exemption
No self-exemption under Art. 17(4) MAR required
The new statutory exemption differs from the classic delay under Art. 17(4) MAR. It does not require the issuer to demonstrate a legitimate interest in delaying disclosure. Nor is a separate delay resolution required.
The key requirement is the confidentiality of the inside information under Art. 17(1a) MAR. As long as this is ensured, the obligation to make an ad hoc disclosure for intermediate-step inside information does not apply until the final event. As a result, the self-exemption under Art. 17(4) MAR loses a significant part of its previous scope of application.
End of the statutory exemption if confidentiality ceases to exist
If confidentiality can no longer be secured, the statutory exemption ends. In the case of sufficiently precise market rumours, there is a presumption that confidentiality no longer exists. In that case, the intermediate-step inside information must be disclosed immediately after the fact.
In this scenario, notification and explanation to the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin, German Federal Financial Supervisory Authority) are not required under Art. 17(4a) MAR. However, the issuer must observe the disclosure obligation under Art. 17(7) MAR.
Confidentiality control as a practical core obligation
Organisational significance of confidentiality
The benefit of the statutory exemption depends crucially on whether the issuer can ensure actual confidentiality. Legally, this is clear as a requirement. Organisationally, it may create significant demands, particularly in major strategy projects, transactions or auction processes.
The more people are involved in a project, the higher the risk of a leak. This applies particularly where, in addition to internal project members, external advisers, potential contracting parties, employee representatives or group divisions with differing interests are involved.
Insider lists, need-to-know principle and market rumours
The need-to-know principle under Art. 18(2) MAR requires access to information to be restricted to persons who need it to perform their duties. Insider lists under Art. 18 MAR therefore remain a central instrument. Project management, confidentiality agreements, emergency communication planning and monitoring of possible market rumours are also required.
The effect of the reform is therefore not that issuers would have to pay less attention to insider compliance. The relief consists above all in the fact that, for intermediate steps, a delay requiring documentation under Art. 17(4) MAR is no longer required in every case. However, distinguishing between an intermediate step and a final event remains challenging.
Voluntary advance communication and its limits
Ad hoc announcement beyond legal obligation
The wording of Art. 17(4) MAR already shows, through the formulation “may”, that a delay does not have to be used mandatorily. Accordingly, an issuer may voluntarily disclose intermediate-step inside information in ad hoc format, even though the final event has not yet occurred.
Such disclosure must be distinguished from the situation in which information is communicated not in ad hoc format, but in another form. In the case of inside information, the strict requirements of Art. 10(1) MAR must be observed. In normal investor relations communication without confidentiality obligations, selective disclosure of inside information is generally not an option.
Communication below the inside information threshold
Another category concerns information that does not yet constitute inside information. For example, the issuer may report on strategic reviews in the context of financial reporting, an analyst conference or other investor relations formats, as long as the information is not yet sufficiently precise or price-sensitive.
A typical example is the announcement that various strategic options are being reviewed for a subsidiary, which may also include a sale. Such a statement does not yet describe a specific corporate sale and is therefore not automatically to be classified as inside information. It may, however, influence expectations on the capital market.
Market abuse law limit
Voluntary advance communication must not create a false overall impression. In particular, it must not be contradictory, misleading or manipulative. The requirements of Art. 12 MAR and the prohibition of market manipulation are decisive.
Not every incomplete or subsequently outdated item of information is therefore impermissible. In an ongoing process, it is inherent in the matter that developments may change. However, the limit is reached where, viewed objectively, the communication creates an inaccurate overall impression, for example where a project is publicly denied while it is already being pursued internally.
Publicly known information and recent CJEU case law on public knowledge
Scope of public knowledge
According to a recent decision of the Gerichtshof der Europäischen Union (CJEU, Court of Justice of the European Union) on public knowledge of inside information, information in the context decided there is publicly known only if it has been published in accordance with the requirements of Art. 17 MAR and Delegierte Verordnung (EU) 2016/1055 (Delegated Regulation (EU) 2016/1055). The case decided concerned a Swedish procurement situation in which a decision had only been sent to a limited group of recipients before a formal press release was issued.
The transfer of this decision to all cases of public knowledge is disputed. A narrow reading focuses on the fact that the CJEU related its statement to the specific context. According to this view, dissemination channels remain relevant if they make information available to a broad public on a non-discriminatory, Europe-wide and simultaneous basis.
Investor relations websites and earlier communication
Of particular importance is the question whether information from analyst conferences, pre-close calls or investor relations publications on the company website can be considered publicly known. A very broad reading of this decision would tend to deny this. A differentiated view, by contrast, considers whether the information had already been available for long enough that a reasonable investor would have had to take note of it in the course of regular monitoring of the issuer.
This view avoids contradictions in value judgments with periodic disclosure, which is often likewise permanently available on the issuer’s website. Nevertheless, under a strict application of this decision, a risk remains, particularly where actual market reception cannot be proven.
Standard of the reasonable investor
Rational assessment of price relevance
The price relevance of information is assessed under Art. 7(4) MAR by reference to the reasonable investor. This standard is not further elaborated in Union law. In German commentary, it is regularly described as an averagely informed, attentive and reasonable investor who processes information rationally.
There is dispute as to whether irrational but realistically foreseeable market reactions should also be included in the assessment. A strictly rational standard appears preferable, as it does not include every possible market overreaction in the concept of inside information. This is particularly important for assessing earlier communication and possible contradictions under Annexes II and III of the Delegated Regulation.
Internal decisions and the role of the supervisory board
Finality in internal decision-making processes
The Delegated Regulation attaches particular importance to the relevant management body. In an Aktiengesellschaft (German stock corporation), this is generally the Vorstand (management board); in a Kommanditgesellschaft auf Aktien (partnership limited by shares), the persönlich haftende Gesellschafter (general partner); and in an SE, depending on its structure, the management board or the administrative board. However, the specific governance structure of the issuer remains decisive, including possible delegations.
If approval by the Aufsichtsrat (supervisory board) is required, this approval may constitute the final event. This takes account of the dualistic system of management board and supervisory board. The issuer does not have to accelerate the internal decision-making process without an objective reason merely in order to trigger earlier disclosure.
Discretion in scheduling meetings
Recital 4 of the Delegated Regulation states that the issuer should bring about a supervisory board decision as soon as possible. However, this statement appears in the recitals and, according to its wording, is exhortatory in character. A general duty to accelerate that goes beyond Art. 17 MAR cannot be derived from it.
The issuer therefore has discretion as to timing. Its outer limit is reached where decisions are delayed without a comprehensible reason. Standard notice periods for convening meetings and appropriate preparation by specialist departments remain permissible in principle.
Bringing forward the supervisory board meeting where a leak is imminent
The discretion may also be used in the opposite direction. If the confidentiality of an intermediate step threatens to erode, it may be in the company’s interest to accelerate the decision-making process and bring forward a supervisory board meeting. This may allow the final event to occur before a precise market rumour undermines the presumption of confidentiality.
As an example, the professional debate cites the supervisory board decision of a German automobile group dated 3 September 2026 concerning a long-term future plan. According to the published information, the meeting was brought forward from the originally scheduled following day to the previous evening after a consensus emerged in the executive committee that threatened to leak.
Final events under Annex I of the Delegated Regulation
Non-exhaustive catalogue
Annex I of the Delegated Regulation contains a non-exhaustive catalogue of final events in protracted processes. According to Recital 1, this list is intended to make the point in time of the disclosure obligation easier to determine and is therefore intended to be as comprehensive as possible.
The examples are nevertheless not exhaustive. What remains decisive is whether the process has reached a stage at which its effects on the fundamental value of the issuer’s securities no longer depend on a further legally relevant circumstance. As a rule, finality is linked to a corporate or transactional fact with binding effect.
Strategic transactions and M&A
In internal strategy projects, the end of the internal decision-making process is generally decisive. If involvement of the supervisory board is required, finality occurs only upon its approval, acknowledgement or consent. Where a private third party is involved, conclusion of the contract or a comparable legal commitment is usually decisive.
In larger M&A transactions, approval by the supervisory board may conclude the internal decision, while conclusion of the contract finalises the external transactional process. A subsequent merger control clearance procedure generally does not change this if the contract has already been concluded with binding effect. The later decision of the competition authority may itself be price-sensitive, particularly in the event of a prohibition or clearance subject to conditions in the individual case.
Public takeover offers
In public takeover offers, the final decision of the bidder’s competent management body to make the offer is generally the final event. In the case of a stock corporation, the management board decision is generally decisive, subject to any required approval by the supervisory board.
For the target company, an assessment of the individual case remains necessary. The mere granting of due diligence is typically not yet sufficient. Intermediate steps such as a letter of intent are in any event covered by the statutory exemption, provided the further requirements are met.
Financial communication, profit warnings and forecasts
Financial reports as a protracted process
Annex I C 11 of the Delegated Regulation specifies the acknowledgement or approval by the management body as the final event for financial reports and interim reports. This recognises the preparation of financial figures itself as a protracted process. Before the adoption of the final Delegated Regulation, it had been unclear in the professional discussion whether financial results and forecasts in connection with periodic reporting were to be treated as intermediate steps; clarification by the Commission had been called for.
For annual financial statements, half-year financial reports and voluntary quarterly reports or quarterly statements, the management body is generally responsible. Involvement of the supervisory board is decisive only to the extent required by law or by the issuer’s internal governance.
Profit warnings
The Europäische Wertpapier- und Marktaufsichtsbehörde (ESMA, European Securities and Markets Authority) took the view in its Final Report that profit warnings should always be classified as a single event requiring immediate disclosure. This view is not convincing in every scenario. If a profit warning arises only from the accumulation of numerous small individual effects during the preparation of the financial figures, it may remain part of the periodic reporting process.
The situation is different if the profit warning is based on a single event already identified before the reporting date. The loss of a significant customer or supplier with a material impact on earnings cannot be withheld solely by reference to later periodic reporting. The origin and degree of concretisation of the information in the individual case are decisive.
Forecasts
For forecasts, Annex I C 12 of the Delegated Regulation names the acknowledgement or approval by the management body as the final event. However, a forecast is not merely the passive recording of data. It requires an independent decision by management on a sufficient information basis under conditions of uncertainty.
There is therefore much to suggest that the decision on the forecast should be decisive. Only once the relevant facts have been identified, analysed and assessed by the competent management body can possible inside information concerning the forecast arise.
Corporate governance and changes in the management body
Personnel changes as the starting point of the intermediate-step doctrine
Personnel changes in the management body have been a central reference point in the discussion about intermediate steps since the Geltl/Daimler decision of the CJEU. However, it must always first be examined whether the specific personnel change has any price relevance at all. This will usually be considered only in special scenarios involving prominent chief executive officers or other strategically particularly exposed management functions.
Appointment and dismissal are treated as internal processes. By contrast, the conclusion of a service agreement or termination agreement is an external process involving a third party. In practice, appointment and conclusion of the contract often coincide in time in the case of price-sensitive new appointments.
Coordination of departure and replacement
Companies regularly have an interest in communicating departure and succession together. If the decisions are not made at the same supervisory board meeting, a delay under Art. 17(4) MAR may still become necessary for one of the two processes. The statutory exemption does not completely eliminate these coordination issues.
Authorities, courts and restructuring
Administrative proceedings
In processes involving an authority, the filing of the application is often the final event on the issuer’s side. On the authority’s side, its final decision officially communicated to the issuer is generally decisive.
The classification of the filing of an application as the final event for applications for licences, IP rights or product approvals has been criticised. The reason is that it is often only the authority’s decision following a lengthy open review procedure that affects the issuer’s fundamental value.
Insolvency and restructuring proceedings
In judicial insolvency or restructuring proceedings, the internal decision to file the application is decisive. If, however, the issuer opts for an out-of-court restructuring in agreement with creditors, there is no sovereign-law connecting factor. The focus then is essentially on the legally effective agreement with the creditors involved.
Annexes II and III: prior communication and delay
Remaining scope of application of delay
The classic delay under Art. 17(4) MAR remains relevant despite the statutory exemption, but its scope of application becomes narrower. It primarily comes into consideration in three scenarios:
- for single events outside protracted processes,
- upon occurrence of the final event, where a further delay may exceptionally be considered,
- as a precautionary measure in borderline cases.
The requirements of Art. 17(4) MAR continue to apply. A legitimate interest of the issuer, no contradiction with the most recent communication and the safeguarding of confidentiality are required.
Contradiction with prior communication under Annex II
Annex II of the Delegated Regulation contains categories of cases in which later inside information may conflict with earlier communication by the issuer. The list is broad and primarily shows that almost any type of inside information may contradict previous communication.
What should be decisive is not merely a formal contrast. The key issue is whether the earlier communication created a sufficiently concrete expectation for the strictly rational investor. General statements about the examination of various strategic options regularly do not create such a concrete expectation, whereas specific planning information is more likely to do so.
Types of communication under Annex III
Annex III of the Delegated Regulation identifies low-threshold forms of communication and clarifies that, in particular, oral statements by individual persons are attributed to the issuer only if those persons officially represented the issuer. At the same time, the Annex can be understood as guidance for formats of voluntary capital market communication.
Roadshows, pre-close calls and analyst conferences are more suitable for context-related communication with capital-market-experienced addressees. Press releases and public interviews, by contrast, may be reduced more strongly to individual statements. Advertising campaigns are generally less suitable for advance information to the capital market because they lack the required target-group precision.
ESMA, FMA and further Listing Act adjustments
ESMA consultation on MAR guidelines
On 19 February 2026, ESMA published a consultation paper with the identifier ESMA74-268544963-1567 amending its MAR guidelines on the delay of disclosure of inside information. The aim is to adapt them to the Listing Act. The background is that protracted processes until their completion are no longer subject to the disclosure obligation in the same way as under the previous understanding.
The Austrian Finanzmarktaufsicht (FMA, Austrian Financial Market Authority) has also described the changes for issuers as “relief with side effects” (translation) and referred to Art. 17(1) MAR in its new version and to ESMA document ESMA74-1103241886-1086. This underlines that the reform creates relief, but at the same time raises new demarcation questions and requirements for internal processes.
Classification within the Listing Act package
The new statutory exemption is part of the broader context of the Listing Act package. This package also includes the raising by the Bundesanstalt für Finanzdienstleistungsaufsicht of the notification threshold for managers’ transactions from EUR 20,000 to EUR 50,000 per calendar year with effect from 1 January 2026.
Overall, the amendments pursue the objective of facilitating capital market access and reducing regulatory burdens. For issuers, however, it remains crucial to determine the remaining obligations precisely and to observe carefully the boundaries between intermediate step, final event, single event and voluntary communication.
Practical review points for issuers
Structured classification of the process
For the legal classification, the first question is whether there is a protracted process at all. What is required is a course of events consisting of several successive steps and leading towards a final event. Only then does the question arise whether an intermediate step already constitutes inside information and whether the statutory exemption applies.
The key review points can be summarised as follows:
- Is there a protracted sequence of events within the meaning of Art. 7(2) MAR?
- Does the intermediate step independently meet the criteria for inside information under Art. 7(1) and (3) MAR?
- Is confidentiality under Art. 17(1a) MAR actually ensured?
- Which event is to be classified as the final event under Annex I of the Delegated Regulation?
- After finality has occurred, or in the case of single events, can a delay under Art. 17(4) MAR be considered?
- Does later information contradict earlier communication within the meaning of Annex II?
- Which form of communication is relevant under Annex III for attribution and assessment?
Demarcation remains decisive
The greatest practical challenge lies in distinguishing between intermediate step and final event. A process may appear final from the perspective of a project and, at the same time, merely be another intermediate step for a higher-level process. The Delegated Regulation provides important case categories for this, but does not replace the assessment of the individual case.
In internal decisions, it must also be distinguished whether the management body must make a genuine decision or merely take note. In the case of decisions, preparation and reflection time must be assessed differently than in the case of mere acknowledgement of financial figures or forecasts. Arbitrary delays remain impermissible.
Frequently asked questions
Art. 17 MAR Listing Act: When does the ad hoc obligation cease to apply for intermediate steps?
The obligation of immediate ad hoc disclosure does not apply to intermediate-step inside information until the final event occurs if confidentiality under Art. 17(1a) MAR is maintained. Insider dealing prohibitions, disclosure prohibitions and insider list obligations continue to apply.
Delegated Regulation (EU) 2026/789: What is a final event?
A final event exists when the protracted process has reached a stage at which the capital-market-relevant effect no longer depends on a further legally relevant circumstance. Annex I of the Delegated Regulation contains a non-exhaustive catalogue of examples.
Ad hoc disclosure in M&A and financial figures: What practical consequences does the statutory exemption have for companies?
In M&A projects, financial figures and forecasts, companies less frequently have to resolve on a separate delay under Art. 17(4) MAR. At the same time, the requirements for confidentiality, insider lists, market rumour monitoring and the precise determination of the final event increase.
Classification for capital-market-oriented companies
The new statutory exemption fundamentally changes ad hoc disclosure in protracted processes without abandoning investor protection. Issuers are given more room not to have to disclose uncertain intermediate steps prematurely, but remain bound by strict confidentiality, insider compliance and market abuse law. The annexes to the Delegated Regulation provide guidance, but continue to raise demarcation questions in individual categories of cases.
For companies, investors and high-net-worth individuals, the assessment of intermediate steps, final events and capital markets law communication can be of considerable importance. MTR Legal Rechtsanwälte advises clients on issues relating to ad hoc disclosure, inside information and capital markets compliance; further information can be found at Legal advice in capital markets law.
