Listing Act – ESMA consults on simplifications for insider lists

According to Art. 18 MAR, issuers of financial instruments traded on a trading venue and persons acting on their behalf shall draw up a list of all persons who have access to inside information as a result of the tasks they perform (insider list). The insider list shall contain a variety of personal data, including the first name and surname, surname at birth, date of birth, business and private (!) telephone numbers (landline and mobile) of the insider, the name and address of the company the insider is acting for, his function and the reason for being an insider, the date and time at which the insider gained access to inside information and when he ceased to have access, his national identification number (if available) and his private address, including any secondary residences (!). The scope of this data collection is controversial, in particular whether it is necessary and appropriate for the prosecution of potential insider dealing. In addition, the required recording and updating work entails considerable efforts for issuers and their service providers.

Mandate to ESMA to review alleviations

In the EU Listing Act, ESMA received a mandate to review the current requirements for insider lists to determine whether the alleviated format of insider lists that was introduced for issuers of securities admitted to trading on an SME growth market (hereinafter "SME issuers") can be applied generally to all issuers.

ESMA proposal

On April 3, 2025, ESMA published a consultation paper proposing new rules on the content of insider lists for all issuers in new implementing technical standards (ITS). According to ESMA’S proposal, the following information will no longer be required in future: surname at birth, private telephone numbers and addresses, and the name and address of the company for which the person works. The date of birth will only have to be included if the insider does not have a national identification number (as is the case in Germany). Furthermore, so-called permanent insiders may be listed in a separate section of the insider list, the contents of which have been simplified again. The special treatment of permanent insiders is intended to reduce the record keeping efforts, but was already controversial under the current rules. This is because only persons who, due to the nature of their function or position, have access to all inside information within the company at all times can continue to be listed as permanent insiders. Accordingly, only a small group of people will qualify as permanent insiders, if any. This simplification will therefore continue to be of little practical relevance if the ESMA proposal remains unchanged.

The Listing Act also continues another alleviation for SME issuers that is already in force. Although they are also required to keep insider lists, they only have to include persons who, due to the nature of their function or position within the issuer, have "regular" access to inside information. This group of persons goes beyond permanent insiders, as the persons concerned do not necessarily have to have access to "all" inside information. However, while the English language version of the current delegated regulation refers to "regular access", i.e., regular (but not permanent) access to inside information, the German version requires that access to be “permanent”. It remains to be seen whether this inaccuracy of the translation of the English text into German will be corrected in the context of the revision of the implementing technical standards, which will be have to be effected in any case.

Conclusion

The changes to the requirements for insider lists proposed by ESMA represent at least a small step towards deregulation for issuers. However, this would constitute an even bigger step for the insiders themselves. According to the proposal, it would no longer be required to record a range of personal data about them that currently has to be included in the insider list. However, if the ESMA proposal remains unchanged, the separate treatment of so-called permanent insiders would continue to be rather well-intentioned than effective. This is because the group of persons affected would remain very small and the efficiency gains for issuers would be marginal. With regard to the rules for SME issuers, it is to be hoped that the inconsistencies in the language versions will be resolved in the finalisation of the new implementing technical standards.

Click here to access the ESMA consultation paper.

For the current legal situation regarding insider lists, see also:

• Meyer in Kümpel/Mülbert/Früh/Seyfried, 7th edition 2025, Part 12, Section 4, margin number 12.401ff.
• Göttler in Meyer/Veil/Rönnau, 2nd edition 2023, Section 11