The EU Listing Act – Focus on the Amendments to the Market Abuse Regulation | Denmark

The EU Listing Act, which came into force on 4 December 2024, introduces significant changes to EU capital markets legislation. Among these are amendments to the Market Abuse Regulation (MAR), which already affect listed companies and other capital market participants. Below is a summary of the key changes.

The safe harbour condition laid down in Article 5(1)(b) of MAR is relaxed to the effect that the listed company may decide to only publish the aggregate trading information of the buy-backs (ie, information on the total volume and the weighted average price per day and per trading venue) as opposed to earlier when the information of each individual trade had to be disclosed.

In addition, the safe harbour condition laid down in Article 5(3) of MAR is relaxed to the effect that the listed company must in future only report trading information to the competent authority of the most relevant market with regard to the liquidity of the shares in question, as opposed to earlier when the listed company had to report to all competent authorities of the trading venues where the shares are (i) admitted to trading or (ii) traded. 

See Article 2(2) of the Listing Act and preamble recital 62.

The concept of inside information laid down in Article 7(1)(d) of MAR pertains to “front-running” – ie, the form of insider trading where the information used relates to “pending orders”.

It is clarified that the provision in (d) includes cases where the inside information on the pending orders “is known by virtue of the management of own funds or a managed fund”.

See Article 2(3) of the Listing Act and preamble recital 63.

The definition of market sounding laid down in Article 11(1) of MAR is extended to cover the situation where the communication of information under the market sounding regime is not followed by an announcement of the contemplated transaction in question to which the market sounding pertained.

See Article 2(4)(a) of the Listing Act and preamble recital 64.

In Article 11(4)(a–f) of MAR, six conditions are added that the disclosing person/entity may choose to comply with, which, together with the mandatory conditions laid down in (3) and (6), provide them with safe harbour protection in relation to the prohibition against unlawful disclosure of inside information.

These are merely clarifications, as the requirements were set out in the previous provision laid down in Article 11(5), which was repealed by the Listing Act. 

In line with the present state of the law, preamble recital 65 emphasises that the conditions laid down in (4) are optional and that no presumption should therefore be made of breach of the prohibition of disclosure if the optional conditions are not met – ie, if one chooses to disclose inside information without using the special safe harbour regime for market soundings.

See Article 2(4)(b) of the Listing Act and preamble recital 65.

Article 19(8) of MAR lays down that the notification threshold for persons discharging managerial responsibilities as well as persons closely associated with them is increased from EUR5,000 to EUR20,000. Article 19(9) also allows the competent authorities to raise the threshold to EUR50,000 or lower it to EUR10,000.

The Danish FSA has currently chosen to apply a threshold of EU 20,000 (see Section 1 of Executive Order No 580/2020) on the threshold for notification of transactions by persons discharging managerial responsibilities.

In the FSA’s newsletter published on 4 December 2024, the FSA announced that Denmark is expected to exercise its right to raise the notification threshold to EUR50,000. It has not yet been announced when this amendment will come into effect.

See Article 2(8)(a) of the Listing Act and preamble recital 74.

Article 19(12a) of MAR introduces a right for persons discharging managerial responsibilities to trade under certain exceptional circumstances during the closed period of 30 days prior to the publication by the listed company of its semi-annual and annual report.

In contrast, this means that the listed company is obliged to allow the person discharging managerial responsibilities to trade in the closed period in the following exceptional circumstances (see Article 19(12a) of MAR) and provided that the person discharging managerial responsibilities is not in possession of inside information on the listed company:

See Article 2(8)(b) of the Listing Act and preamble recitals 75 and 76.