The European Securities and Markets Authority (ESMA) issued on 27 March 2020 a public statement (the Statement) to promote coordinated action by National Competent Authorities regarding issuers’ obligations to publish periodic information for reporting periods ending on 31 December 2019 or after in the context of the COVID-19 outbreak.
In the aftermath, CSSF published on the same day a press release (the PR) announcing a flexibility with respect to the delay relating to disclosure requirements as per the law of 11 January 2008 on transparency requirements for issuers (Transparency Law).
WHO IS CONCERNED?
Issuers whose securities are admitted to trading on regulated markets and (ii) holders of securities (which includes securities admitted to trading on regulated markets as well as on a MTF).
As per the Transparency Law, issuers whose securities are admitted to trading on a regulated market are required to publish annual and half year financial reports (Periodic Information) within certain deadlines.
Such Periodic Information is key for investors’ protection and market integrity; as well as it is of paramount importance for economic decisions of users thereof and for exercising their rights to vote or otherwise influence management actions.
Therefore, the preparation of such Periodic Information shall continue to be carried out in accordance with the applicable financial reporting framework to ensure investors’ protection and to preserve the integrity and proper functioning of EU financial markets.
However, even though issuers are expected to exercise their best efforts to prepare their financial reports and publish them within legal deadline, ESMA highlighted that the burdens on issuers associated with the COVID-19 outbreak might be such that they may be prevented from fulfilling timely the requirements.
PERIODIC INFORMATION - POSSIBLE DELAY FOR PUBLICATION
In compliance with ESMA’s Statement, CSSF has announced that it will not prioritise supervisory actions against issuers in respect of the upcoming publication deadlines for Periodic Information.
As a matter of reminder, in compliance with the Transparency Law:
Annual financial report: shall be made public at the latest four (4) months after the end of each financial year; and
Half-year financial report (covering the first six (6) months of the financial year): shall be made public as soon as possible after the end of the relevant period, but at the latest three (3) months thereafter.
In the current context, CSSF has decided, as a temporary measures, that issuers that would consider the need as appropriate shall have two (2) additional months to publish the above mentioned upcoming Periodic Information.
However, this temporary measure shall only apply to (i) issuers for which Luxembourg is the home Member State pursuant to the Transparency Law, and (ii) for reporting periods ending on 31 December 2019 or after that date but before 1 April 2020.
From a pragmatic standpoint; this means that issuers with a financial year starting 1st January and ending 31st December which were supposed to publish their annual financial report before 30 April 2020 are now entitled, in case of need, to publish it until 30 June 2020. In this precise case, issuers should be reminded as well to take into consideration the date of holding of their annual general meeting so that the date of the delayed publication of the annual financial report and the date of the holding of the annual general meeting should both be compliant with normal applicable rules.
This being said, issuers are expected to take all necessary and reasonable measures in order to publish Periodic Information within, or as near as possible to, the deadlines set by the Transparency Law. Those who would reasonably anticipate a delayed publication of their financial reports should inform the CSSF accordingly (email@example.com) as soon as possible and in any case before the expiry of the legal deadline in question and indicate the rationale for such a delay, insofar possible, the expected publication date.
CSSF highlights that investors’ protection and market integrity does not only relate to Periodic Information but that requirements under the Transparency Law regarding ongoing information must be kept in mind as well.
Therefore, issuers and holders of securities must as well pay particular attention to compliance with ongoing disclosure requirements set by the Transparency Law and by Regulation (EU) No 596/2014 on market abuse (MAR).
- Notification requirement of the acquisition or disposal of major holdings (article 8 Transparency Law);
- Disclosure of inside information (Article 17 of MAR); issuers must continue to inform the market as soon as possible of any inside information that directly concerns them.
- Notification requirement of managers’ transactions (Article 19 of MAR).