S.I. No. 342/2005 - Market Abuse (Directive 2003/6/EC) Regulations 2005

Statutory Instrument

S.I. No. 342 of 2005

Market Abuse (Directive 2003/6/EC) Regulations 2005

Market Abuse (Directive 2003/6/EC) Regulations 2005

Table of Contents	Table of Contents	Table of Contents
PART 1	PART 1	PART 1
Preliminary	Preliminary	Preliminary
Regulation	Regulation	Page
1.	Citation, construction and commencement	6
2.	Interpretation generally	7
3.	Single administrative competent authority	17
4.	Application	18
PART 2	PART 2	PART 2
Insider Dealing and Market Manipulation	Insider Dealing and Market Manipulation	Insider Dealing and Market Manipulation
Regulation	Regulation	Page
5.	Insider dealing	20
6.	Market manipulation	23
7.	Preventing and detecting market manipulation practices	23
8.	Exemption for actions taken in conformity with takeover rules	24
9.	Buy-back programmes or stabilisation measures	25
10.	Disclosure of inside information	28
11.	Disclosure of information (additional requirements)	32
12.	Managers’ transactions	34
13.	Suspicious transactions to be notified	38
14.	Restrictions on disclosure of notification under Regulation 13 and of identity of notifier	41
15.	Cooperation with other competent authorities	42
PART 3	PART 3	PART 3
Fair Presentation of Recommendations	Fair Presentation of Recommendations	Fair Presentation of Recommendations
Regulation	Regulation	Page
16.	Interpretation (Part 3)	48
17.	Production and dissemination of recommendations	50
18.	Identity of producer of recommendation	50
19.	General standard for fair presentation of recommendations	51
20.	Additional obligations in relation to fair presentation of recommendations	52
21.	General standard of disclosure of interests and conflicts of interest	54
22.	Additional obligations in relation to disclosure of interests or conflicts of interest	55
23.	Dissemination of recommendations produced by third parties	58
24.	Additional obligations for investment firms and credit institutions	60
25.	Non-written recommendations	61
26.	Exemption for journalists	61
PART 4	PART 4	PART 4
Powers of the Bank	Powers of the Bank	Powers of the Bank
Regulation	Regulation	Page
27.	Definitions (Part 4)	63
28.	Power to appoint authorised officers	64
29.	Powers of authorised officers	65
30.	Warrants	68
31.	Directions by Bank	69
32.	Privilege	74
33.	Delegations, etc	74
PART 5	PART 5	PART 5
enforcement provisions	enforcement provisions	enforcement provisions
Regulation	Regulation	Page
34.	Interpretation (Part 5)	76
35.	Bank may appoint assessor	78
36.	Revocation of appointment of assessor	81
37.	Power to require witnesses to appear and give evidence	82
38.	Referral to Court on question of law	84
39.	Assessee to be issued copy of any adverse assessment, etc	84
40.	Right of appeal against adverse assessment (including specified sanctions).	85
41.	Sanctions that may be imposed by Bank	86
42.	Power to correct assessments	87
43.	When specified sanctions take effect	88
44.	Enforcement of adverse assessment (including specified sanctions)	89
45.	Publication of certain specified sanctions	91
46.	Person not liable to be penalised twice for same contravention	91
47.	Person not to be concerned in management of regulated financial service provider while disqualified	92
48.	Power of Bank to resolve suspected contraventions, etc	93
PART 6	PART 6	PART 6
offences and reports	offences and reports	offences and reports
Regulation	Regulation	Page
49.	Offences generally and application of section 32 of Investment Funds, Companies and Miscellaneous Provisions Act 2005	94
50.	Obstruction, etc. of authorised officer	95
51.	False, etc. information	95
52.	Offences by bodies corporate, etc	96
53.	Summary proceedings may be brought by Bank	96
54.	Annual report of Bank	97
SCHEDULE 1	SCHEDULE 1	SCHEDULE 1
Provisions applicable to the definition of “accepted market practices”	Provisions applicable to the definition of “accepted market practices”	Provisions applicable to the definition of “accepted market practices”
SCHEDULE 2	SCHEDULE 2	SCHEDULE 2
Provisions applicable to paragraph (a) of the definition of “market manipulation”	Provisions applicable to paragraph (a) of the definition of “market manipulation”	Provisions applicable to paragraph (a) of the definition of “market manipulation”
SCHEDULE 3	SCHEDULE 3	SCHEDULE 3
Provisions applicable to paragraph (b) of the definition of “market manipulation”	Provisions applicable to paragraph (b) of the definition of “market manipulation”	Provisions applicable to paragraph (b) of the definition of “market manipulation”
SCHEDULE 4	SCHEDULE 4	SCHEDULE 4
Provisions applicable to lists drawn up under Regulation 11	Provisions applicable to lists drawn up under Regulation 11	Provisions applicable to lists drawn up under Regulation 11
SCHEDULE 5	SCHEDULE 5	SCHEDULE 5
Text of the Market Abuse Regulation	Text of the Market Abuse Regulation	Text of the Market Abuse Regulation

I, Micheál Martin, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 30 of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 (No. 12 of 2005) and for the purpose of giving effect to the 2003 Market Abuse Directive (being Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003¹ on insider dealing and market manipulation (market abuse)) and for the other purposes mentioned in that section, hereby make the following regulations:

PART 1 Preliminary

Citation, construction and commencement

1.

• (2) These Regulations and the Companies Acts 1963 to 2005 shall be construed together as one.

• (3) Subject to paragraph (4), these Regulations shall come into operation on 6 July 2005.

• (4) Regulations 11 and 12 and Part 3 shall come into operation on 1 October 2005.

Interpretation generally

2.

“accepted market practices” means practices that are -

• (a) reasonably expected in one or more financial markets, and

• (b) accepted by the Bank in accordance with Schedule 1;

“act” includes an omission (and, accordingly, any reference to an act done includes an omission made);

“approved stock exchange” has the same meaning as it has in the Stock Exchange Act 1995 (No. 9 of 1995);

“Bank” means the Central Bank and Financial Services Authority of Ireland;

“contravention” includes, in relation to any provision, a failure to comply with that provision and “contravene” shall be construed accordingly;

“Court” means the High Court;

“credit institution” means any person as defined in Article 1(1) of Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000² relating to the taking up and pursuit of the business of credit institutions;

“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as amended for the time being;

“EEA State” means a state which is a contracting party to the EEA Agreement;

“enactment” includes an instrument made under an enactment;

“financial instrument” means -

• (a) transferable securities as defined in Article 4 of Council Directive 93/22/EEC of 10 May 1993³ on investment services in the securities field,

• (b) units in collective investment undertakings,

• (c) money-market instruments,

• (d) financial futures contracts, including equivalent cash-settled instruments,

• (e) forward interest rate agreements,

• (f) interest-rate, currency and equity swaps,

• (g) derivatives on commodities,

• (h) any other instrument admitted to trading on a regulated market in a Member State or for which a request for admission to trading on such a market has been made, and

• (i) options to acquire or dispose of any instrument falling into any of paragraphs (a) to (h) of this definition, including equivalent cash-settled instruments in particular options on currency and on interest rates;

“functions” includes powers and duties, and references to the performance of functions include, as respects powers and duties, references to the exercise of powers and the carrying out of duties;

“information of a precise nature” means information that -

• (a) indicates -

• (i) a set of circumstances which exists or may reasonably be expected to come into existence, or

• (ii) an event which has occurred or may reasonably be expected to occur, and

• (b) is specific enough to enable a conclusion to be drawn as to the possible effect of that set of circumstances or event, as the case may be, on the prices of financial instruments or related derivative financial instruments;

“information which, if it were made public, would be likely to have a significant effect on the prices of financial instruments or related derivative financial instruments” means information that a reasonable investor would be likely to use as part of the basis of the investor's investment decisions, and includes cognate expressions;

“inside information” means -

• (a) information of a precise nature relating directly or indirectly to one or more issuers of financial instruments or to one or more financial instruments which has not been made public and which, if it were made public, would be likely to have a significant effect on the price of those financial instruments or on the price of related derivative financial instruments,

• (b) in relation to derivatives on commodities and subject to paragraph (2) information of a precise nature which has not been made public, and relating, directly or indirectly, to one or more such derivatives and which users of markets on which such derivatives are traded would expect to receive in accordance with accepted market practices on those markets, or

• (c) for persons charged with the execution of orders concerning financial instruments, information conveyed by a client and relating to the client's pending orders, which is of a precise nature, which relates directly or indirectly to one or more issuers of financial instruments or to one or more financial instruments, and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments;

“insider dealing” means any act which contravenes Regulation 5(1) or (2);

“investment firm” means investment firm as defined in Article 1(2) of Council Directive 93/22/EEC;

“issuer” means an issuer of any financial instrument to which these Regulations apply pursuant to Regulation 4;

“market abuse” means -

• (a) insider dealing, or

• (b) market manipulation;

“market manipulation” means -

• (a) transactions or orders to trade —

• (i) which give, or are likely to give, false or misleading signals as to the supply of, demand for or price of financial instruments or

• (ii) which secure, by a person, or persons acting in collaboration the price of one or several financial instruments at an abnormal or artificial level,

unless the person who entered into the transactions or issued the orders to trade establishes that the person's reasons for so doing are legitimate and the transactions or orders to trade, as the case may be, conform to accepted market practices on the regulated market concerned,

• (b) transactions or orders to trade which employ fictitious devices or any other form of deception or contrivance, or

• (c) dissemination of information through the media, including the Internet or by any other means, which gives, or is likely to give, false or misleading signals as to financial instruments, including the dissemination of rumours and false or misleading news, where the person who made the dissemination knew, or ought to have known that the information was false or misleading;

“market operator” —

• (a) means a person who -

• (i) manages the business of a regulated market,

• (ii) operates the business of a regulated market, or

• (iii) manages and operates the business of a regulated market,

• (b) includes a regulated market which -

• (i) manages its own business as a regulated market,

• (ii) operates its own business as a regulated market, or

• (iii) manages and operates its own business as a regulated market;

“Member State” means a Member State of the European Communities and an EEA State;

“notify” means notify in writing;

“regulated market” means regulated market as defined in Article 1(13) of Council Directive 93/22/EEC;

“relevant community acts” means —

• (a) the 2003 Market Abuse Directive,

• (b) the supplemental Directives, and

• (c) the Market Abuse Regulation.

• (2) For the purposes of paragraph (b) of the definition of “inside information” users of markets on which derivatives on commodities are traded shall be deemed to expect to receive information -

• (a) relating, directly or indirectly, to one or more such derivatives, and

• (b) which is -

• (i) routinely made available to the users of those markets, or

• (ii) required to be disclosed in accordance with legal or regulatory provisions, market rules, contracts or customs on the relevant underlying commodity market or commodity derivatives market.

• (3) For the purposes of demonstrating the operation of the definition of “market manipulation”, the following examples are derived from that definition -

• (a) conduct by a person, or persons acting in collaboration, to secure a dominant position over the supply of or demand for a financial instrument which has the effect of fixing, directly or indirectly purchase or sale prices or creating other unfair trading conditions,

• (b) the buying or selling of financial instruments at the close of the market with the effect of misleading investors acting on the basis of closing prices,

• (c) taking advantage of occasional or regular access to the traditional or electronic media by voicing an opinion about a financial instrument (or indirectly about its issuer) while having previously taken positions on that instrument and profiting subsequently from the impact of opinions voiced on the price of that instrument, without having simultaneously disclosed that conflict of interest to the public in a proper and effective way.

• (4) Without prejudice to the examples set out in paragraph (3) and for the purposes of applying paragraph (a) of the definition of “market manipulation”, the non-exhaustive signals set out in Schedule 2, which should not necessarily be deemed in themselves to constitute market manipulation, shall be taken into account when transactions or orders to trade are examined by market participants and competent authorities.

• (5) Without prejudice to the examples set out in paragraph (3) and for the purposes of applying paragraph (b) of the definition of “market manipulation”, the non-exhaustive signals set out in Schedule 3, which should not necessarily be deemed in themselves to constitute market manipulation, shall be taken into account when transactions or orders to trade are examined by market participants and competent authorities.

• (6) A word or expression that is used in these Regulations and is also used in the relevant community acts shall have in these Regulations the same meaning as it has in the relevant community acts unless the contrary intention appears.

• (7) A reference in these Regulations -

• (a) to any other enactment or to a Directive or Regulation of the Council or Commission of the European Communities shall, unless the context otherwise requires, be construed as a reference to that enactment Directive or Regulation as amended or extended by any other enactment or, as the case may be, Directive or Regulation of the Council or Commission of the European Communities European Communities (including, in the case of an enactment, by a Regulation of these Regulations),

• (b) a reference to a Regulation or Part is a reference to a Regulation or Part of these Regulations unless it is indicated that a reference to some other provision is intended,

• (c) a reference to a Schedule is a reference to a Schedule to these Regulations unless it is indicated that a reference to some other provision is intended,

• (d) a reference to a paragraph, subparagraph or clause is a reference to a paragraph, subparagraph or clause of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended.

Single administrative competent authority

3.

Application

4.

• (a) admitted to trading on a regulated market in at least one Member State or

• (b) for which a request for admission to trading on a regulated market in at least one Member State has been made,

whether or not any transaction in or relating to the financial instrument takes place on that market.

• (2) These Regulations shall apply to -

• (a) actions carried out in the State or abroad concerning financial instruments that -

• (i) are admitted to trading on a regulated market situated in or operating in the State, or

• (ii) for which a request for admission to trading on a regulated market situated in or operating in the State has been made, and

• (b) actions carried out in the State concerning financial instruments that -

• (i) are admitted to trading on a regulated market in a Member State, or

• (ii) for which a request for admission to trading on a regulated market in a Member State has been made.

• (3) These Regulations do not apply to transactions carried out in pursuit of monetary, exchange rate or public debt management policy by -

• (a) a Member State,

• (b) the European System of Central Banks,

• (c) the Bank,

• (d) the Minister for Finance, or

• (e) the National Treasury Management Agency.

PART 2 Insider Dealing and Market Manipulation

Insider dealing

5.

• (2) A person to whom paragraph (1) applies shall not -

• (a) disclose inside information to any other person unless such disclosure is made in the normal course of the exercise of the first-mentioned person's employment, profession or duties, or

• (b) recommend or induce another person, on the basis of inside information, to acquire or dispose of financial instruments to which that information relates.

• (3) Paragraph (1) shall apply to -

• (a) any person who possesses the inside information concerned -

• (i) by virtue of the person's membership of the administrative management or supervisory bodies of the issuer of the financial instrument,

• (ii) by virtue of the person's holding in the capital of the issuer,

• (iii) by virtue of having access to the information through the exercise of the person's employment, profession or duties, or

• (iv) by virtue of the person's criminal activities,

• (b) if any person falling within subparagraph (a) is a legal person, and without prejudice to the generality of Regulation 52, any natural person who takes part in the decision to carry out, for the account of the legal person, any transaction in financial instruments, or

• (c) subject to regulation 8(3), any other person who possesses the inside information concerned while the person knows, or ought to have known, that it is inside information.

• (4) This Regulation shall also apply to a financial instrument which does not fall within Regulation 4(1) but the value of which depends on a financial instrument which falls within Regulation 4(1).

• (5) Paragraph (1) does not apply to any transaction conducted in the discharge of an obligation -

• (a) to acquire or dispose of any financial instrument,

• (b) that has become due, and

• (c) that results from an agreement concluded before the person concerned possessed the inside information concerned.

• (6) Having regard to section 33(1) of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 , it is declared that -

• (a) the purpose of paragraphs (1), (3)(a) and (b) and (5) is to implement Article 2 of the 2003 Market Abuse Directive,

• (b) the purpose of paragraph (3)(c) is to implement Article 4 of the 2003 Market Abuse Directive, and

• (c) the purpose of paragraph (2) is to implement Article 3 of the 2003 Market Abuse Directive.

Market manipulation

6.

• (2) Having regard to section 33(2) of the Investment Funds, Companies and Miscellaneous Provisions Act 2005 , it is declared that the purpose of paragraph (1) is to implement Article 5 of the 2003 Market Abuse Directive.

Preventing and detecting market manipulation practices

7.

• (a) so structure their operations such that market manipulation practices are prevented and detected, and

• (b) report to it on a regular basis in accordance with arrangements drawn up by the Bank.

• (2) Without prejudice to the generality of paragraph (1), the Bank may impose requirements under that paragraph concerning transparency of transactions concluded, total disclosure of price- regularisation agreements, a fair system of order pairing, introduction of an effective atypical order detection scheme, sufficiently robust financial instrument reference price-fixing schemes and clarity of rules on the suspension of transactions.

Exemption for actions taken in conformity with takeover rules

8.

• (2) Having access to inside information relating to another company and using it in the context of a public takeover offer for the purpose of gaining control of that company or proposing a merger with that company in conformity with rules made under section 8 of the Irish Takeover Panel Act 1997 does not of itself constitute market abuse and is not a contravention of Regulation 5 or 6.

• (3) Regulation 5(3)(c) does not preclude a company (“first-mentioned company” from dealing in the financial instruments of another company (“second-mentioned company” at any time by reason only of information in the possession of an officer of the first-mentioned company that -

• (a) was received by the officer in the course of the carrying out of the officer's duties, and

• (b) consists only of the fact that the first-mentioned company proposes to acquire or attempt to acquire financial instruments of the second-mentioned company.

• (4) Actions taken in compliance with rules made under section 8 of the Irish Takeover Panel Act 1997 (in particular rules relating to the timing, dissemination or availability, content and standard of care applicable to a disclosure, announcement communication or release of information during the course of a public takeover offer) does not of itself constitute market abuse and is not a contravention of Regulation 5 or 6 provided that the relevant general principles set out in the Irish Takeover Panel Act 1997 are also complied with.

• (5) Nothing in these Regulations affects the jurisdiction and role of the Irish Takeover Panel under the Irish Takeover Panel Act 1997 .

• (6) Without prejudice to the generality of paragraph (5), the Irish Takeover Panel in performing its functions under the Irish Takeover Panel Act 1997 , and the Bank, in performing its functions under these Regulations, shall have due regard to the other's performance of functions under that Act or these Regulations, as the case may be.

Buy-back programmes or stabilisation measures

9.

• (a) to trading in own shares in buy-back programmes, or to trading to secure the stabilisation of a financial instrument, provided that such trading is carried out in accordance with the Market Abuse Regulation (the text of which is set out, for convenience of reference, in Schedule 5), or

• (b) to the purchase of own shares carried out in accordance with Part XI of the Companies Act 1990 (No. 33 of 1990).

• (2) Subject to paragraph (4), the acquisition or disposal of interests in relevant share capital by a person during the stabilising period concerned, which -

• (a) is done for the purpose of stabilising or maintaining the market price of securities, and

• (b) is done in conformity with the Market Abuse Regulation,

shall be disregarded during the stabilising period for the purposes of sections 67 to 79 of the Companies Act 1990 .

• (3) Any interest in relevant share capital which -

• (a) was acquired by a person during the stabilising period for the purpose of stabilising or maintaining the market price of securities,

• (b) was so acquired in accordance with the Market Abuse Regulation, and

• (c) continues to be held by such person at the end of the stabilising period as provided in the Market Abuse Regulation,

shall be treated, for the purposes of sections 67 to 79 of the Companies Act 1990 , as having been acquired by the person on the first day following the end of the stabilising period that is not a Saturday, Sunday or public holiday.

• (4) Section 91(4) of the Companies Act 1990 shall operate to determine the interests which are to be notified to the Irish Stock Exchange Limited, and the manner in which they are to be so notified, under section 91(2) of that Act.

• (5) For the purposes of this Regulation -

“buy-back programme” means a programme as described in, and operated in accordance with, the Market Abuse Regulation;

“relevant share capital” has the same meaning as it has in section 67(2) of the Companies Act 1990 ;

“stabilising period” means the limited time period provided in Article 8(2) of the Market Abuse Regulation.

Disclosure of inside information

10.

• (a) which directly concerns the issuer, and

• (b) in a manner that enables fast access and complete, correct and timely assessment of the information by the public.

• (2) Without prejudice to any measures taken under paragraph (1), the issuer shall for a period of not less than 6 months, post on the issuer's Internet site or sites any inside information that the issuer is required to publicly disclose.

• (3) Subject to paragraph (7), the issuer shall not combine, in a manner likely to be misleading, the provision of inside information to the public with the marketing of the issuer's activities.

• (4) The issuer shall be deemed to have complied with paragraph (1) where, upon the coming into existence of a set of circumstances or the occurrence of an event, albeit not yet formalised, the issuer has without delay informed the public of those circumstances or that event, as the case may be.

• (5) Where there is any significant change concerning already publicly disclosed inside information, the issuer shall publicly and without delay disclose the change -

• (a) immediately after the change occurs, and

• (b) through the same channel as the one used for public disclosure of the original information.

• (6) The issuer shall take reasonable care to ensure that the disclosure of inside information to the public is synchronised as closely as possible between all categories of investors in regulated markets in all Member States on which -

• (a) the issuer's financial instruments concerned are admitted to trading, or

• (b) the issuer has requested admission to trading of the financial instruments concerned.

• (7) The issuer may delay the public disclosure of inside information to avoid prejudicing the issuer's legitimate interests provided that -

• (a) the failure to disclose the information would not be likely to mislead the public, and

• (b) the issuer is able to ensure the confidentiality of the information.

• (8) For the purposes of paragraph (7), “legitimate interests” may include any of the following circumstances -

• (a) negotiations in course, or related elements, where the outcome or normal pattern of those negotiations would be likely to be affected by public disclosure (in particular, in the event that the financial viability of the issuer is in grave and imminent danger, although not within the scope of the applicable insolvency law, public disclosure of information may be delayed for a limited period where such a public disclosure would seriously jeopardise the interest of existing and potential shareholders by undermining the conclusion of specific negotiations designed to ensure the long-term financial recovery of the issuer),

• (b) decisions taken or contracts made by the management body of the issuer which need the approval of another body of the issuer in order to become effective, provided that -

• (i) the organisation of the issuer requires separation between those bodies, and

• (ii) a public disclosure of the information before such approval together with the simultaneous announcement that this approval is still pending would jeopardise the correct assessment of the information by the public.

• (9) In order to ensure the confidentiality of inside information that is not disclosed to the public under paragraph (7), the issuer shall control access to the information and, in particular -

• (a) take effective measures to deny access to the information to persons other than those who require it for the exercise of their functions within the issuer,

• (b) take the measures necessary to ensure that a person with access to the information acknowledges the legal and regulatory duties entailed and is aware of the sanctions attaching to the misuse or improper circulation of the information, and

• (c) without prejudice to paragraph (11), have in place measures which allow immediate public disclosure in case the issuer was not able to ensure the confidentiality of the information.

• (10) Subject to paragraph (11), where the issuer, or a person acting on the issuer's behalf or for the issuer's account, discloses any inside information to any third party in the normal exercise of the issuer's or person's employment, profession or duties, the issuer or person, as the case may be, shall make complete and effective public disclosure of that information, simultaneously in the case of an intentional disclosure and without delay in the case of a non-intentional disclosure.

• (11) Paragraph (10) does not apply where the third party receiving the inside information is a person under an obligation of confidentiality.

• (12) This Regulation does not apply to the issuer of the financial instrument concerned where the issuer neither -

• (a) made a request for the financial instrument to be admitted to trading on a regulated market, nor

• (b) approved the admission of the financial instrument to trading on a regulated market.

Disclosure of information (additional requirements)

11.

• (a) of those persons working for the relevant person, under a contract of employment or otherwise, who have access to inside information relating directly or indirectly to the relevant person who is the issuer and

• (b) containing the information set out in Schedule 4.

• (2) Each relevant person shall regularly update the list drawn up by the relevant person pursuant to paragraph (1).

• (3) The Bank may request from any relevant person any list drawn up by the relevant person pursuant to paragraph (1).

• (4) A relevant person shall comply with a request under paragraph (3) made to the relevant person.

• (5) Subject to paragraph (6), in this Regulation, “relevant person” means -

• (a) the issuer,

• (b) a person acting on behalf of the issuer, or

• (c) a person acting for the account of the issuer.

• (6) This Regulation does not apply to the issuer of the financial instrument concerned (or persons acting on behalf of, or for the account of, the issuer) where the issuer neither -

• (a) made a request for the financial instrument to be admitted to trading on a regulated market, nor

• (b) approved the admission of the financial instrument to trading on a regulated market.

Managers’ transactions

12.

• (2) Persons discharging managerial responsibilities, within an issuer of financial instruments not registered in the State, and, where applicable, persons closely associated with them, shall notify transactions conducted on their own account relating to shares of the issuer or to derivatives on other instruments linked to them -

• (a) if the issuer is registered in another Member State, in accordance with the rules of notification relating thereto of that Member State,

• (b) if the issuer is not registered in another Member State, to the competent authority of the Member State to which the issuer is required to file the annual information in relation to shares in accordance with Article 10 of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003⁴ , including the Directives as it stands amended for the time being.

• (3) Notification of transactions required by paragraph (1) and, where applicable paragraph (2)(b), shall be made to the Bank within 5 working days of the day of the transaction.

• (4) Subject to paragraph (5), the Bank may provide that, where the total amount of the transactions is less than €5,000 at the end of a calendar year, no notification is required or notification may be delayed until 31 January of the following year.

• (5) For the purposes of paragraph (4), the total amount of transactions shall be calculated by adding together -

• (a) the transactions conducted on the own account of a person discharging managerial responsibilities within an issuer, and

• (b) the transactions conducted on the own account of persons closely associated with the person referred to in subparagraph (a).

• (6) A notification required by paragraph (1) shall contain the following information -

• (a) the name of the person discharging managerial responsibilities within the issuer or, where applicable, the name of a person closely associated with such a person,

• (b) the reason for responsibility to notify,

• (c) the name of the relevant issuer,

• (d) a description of the financial instrument,

• (e) the nature of the transaction (for example, acquisition or disposal),

• (f) the date and place of the transaction, and

• (g) the price and volume of the transaction.

• (7) The Bank shall ensure that public access to information concerning the transactions notified to it under this Regulation is readily available, at least on an individual basis, without delay.

• (8) For the purposes of this Regulation -

“person closely associated”, in relation to a person discharging managerial responsibilities within an issuer of financial instruments, means -

• (a) the spouse of the person discharging managerial responsibilities,

• (b) dependent children of the person discharging managerial responsibilities,

• (c) other relatives of the person discharging managerial responsibilities who have shared the same household as that person for at least one year on the date of the transaction concerned,

• (d) any person -

• (i) the managerial responsibilities of which are discharged by a person -

• (I) discharging managerial responsibilities within the issuer, or

• (II) referred to in paragraph (a), (b) or (c) of this definition,

• (ii) that is directly or indirectly controlled by a person referred to in subparagraph (i) of paragraph (d) of this definition,

• (iii) that is set up for the benefit of a person referred to in subparagraph (i) of paragraph (d) of this definition, or

• (iv) the economic interests of which are substantially equivalent to those of a person referred to in subparagraph (i) of paragraph (d) of this definition;

“person discharging managerial responsibilities”, in relation to an issuer of financial instruments, means a person who is -

• (a) a member of the administrative, management or supervisory bodies of the issuer, or

• (b) a senior executive -

• (i) who is not a member of the bodies referred to in paragraph (a) of this definition,

• (ii) having regular access to inside information relating, directly or indirectly, to the issuer, and

• (iii) having the power to make managerial decisions affecting the future developments and business prospects of the issuer.

Suspicious transactions to be notified

13.

• (2) Any prescribed person shall decide on a case-by-case basis whether there are reasonable grounds for suspecting that a transaction involves market abuse after taking into account the elements constituting market abuse.

• (3) The Bank shall, on receipt of a notification under paragraph (1), transmit the notification immediately to the relevant competent authority of each regulated market on which the financial instrument concerned -

• (a) is admitted to trading, or

• (b) is the subject of a request to be admitted to trading of which the Bank is aware.

• (4) A prescribed person required under paragraph (1) to notify the Bank shall transmit to the Bank the following information -

• (a) a description of the transactions concerned, including the type of order (such as limit order, market order or other characteristics of the order and the type of trading market (such as block trade),

• (b) the reason or reasons for suspecting that the transactions might constitute market abuse,

• (c) the names, or means of identification, of the persons on behalf of whom the transactions have been carried out, and of other persons involved in the transactions,

• (d) the capacity in which the prescribed person operates (such as for own account or on behalf of third parties), and

• (e) any other information which may be significant in reviewing the transactions.

• (5) Where the information specified in paragraph (4) is not available at the time of notification -

• (a) the notification shall include at least the reason or reasons why the prescribed person suspects that the transactions might constitute market abuse as specified in paragraph (4)(b), and

• (b) the other information required by paragraph (4) shall be provided to the Bank as soon as it becomes available.

• (6) A prescribed person shall not be liable for any act done, or purporting to be done, in good faith by the person pursuant to paragraph (1).

• (7) An act referred to in paragraph (6) does not contravene any restriction on the disclosure of information.

• (8) For the purposes of this Regulation, “prescribed person” means any person (including any investment firm, credit institution or market operator) professionally arranging transactions in financial instruments who -

• (a) is registered in the State, or

• (b) consists of a branch operating in the State of any person (including any investment firm, credit institution or market operator) -

• (i) professionally arranging transactions in financial instruments and

• (ii) registered in another Member State.

Restrictions on disclosure of notification under Regulation 13 and of identity of notifier

14.

• (2) Without prejudice to the provisions of Part 5 or the rules on the transfer of personal data laid down in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995⁵ on the protection of individuals with regard to the processing of personal data and on the free movement of such data, the Bank shall not disclose to any person the identity of the person (“notifier”) having notified it under Regulation 13 of the transactions concerned if the disclosure would, or would be likely to, harm the notifier.

Cooperation with other competent authorities

15.

• (2) Subject to paragraph (3), the Bank shall, on receipt of a request for information from a competent authority for the purpose referred to in paragraph (1) -

• (a) immediately supply the information to that competent authority,

• (b) if necessary, immediately take the measures necessary to collect the required information, or

• (c) if unable to supply the requested information immediately, notify that competent authority of the reasons.

• (3) The Bank may refuse to supply information requested by a competent authority for the purpose referred to in paragraph (1) where -

• (a) communication may adversely affect the sovereignty, security or public policy of the State,

• (b) judicial proceedings have already been initiated in the State in respect of the same actions and against the same person before the authorities of the State, or

• (c) a final judgment of a court of competent jurisdiction has already been delivered in relation to such persons for the same actions in the State.

• (4) The Bank shall -

• (a) notify the competent authority of a refusal under paragraph (3), and

• (b) if the reason for the refusal falls within paragraph (3)(b) or (c) provide as detailed information as is possible on the relevant judicial proceedings or final judgment, as the case may be.

• (5) Without prejudice to the obligations of the Bank with respect to criminal proceedings in the State, the Bank shall use information received from competent authorities of other Member States pursuant to Article 16(1) of the 2003 Market Abuse Directive only -

• (a) for the exercise of its functions under the relevant community acts, and

• (b) in the context of administrative or judicial proceedings specifically related to the exercise of those functions,

unless the Bank seeks and receives the consent of the competent authority that sent the information to use such information for other purposes or to forward the information received to competent authorities of other Member States.

• (6) Without prejudice to the obligations of the competent authorities in other Member States with respect to criminal proceedings in such Member States, the Bank shall not give information to competent authorities of other Member States pursuant to Article 16(1) of the 2003 Market Abuse Directive unless such other competent authority of such other Member State agrees to use such information only -

• (a) for the exercise of its functions under the relevant community acts, and

• (b) in the context of administrative or judicial proceedings specifically related to the exercise of those functions,

unless the competent authority receiving information from the Bank seeks and receives the consent of the Bank to use such information for other purposes or to forward the information received to competent authorities of other Member States.

• (7) The Bank shall give notice to the competent authority of another Member State, in as specific manner as possible, if it believes that -

• (a) acts contrary to the relevant community acts are being, or have been carried out within the territory of the Member State, or

• (b) acts are affecting financial instruments traded on a regulated market situated in the Member State.

• (8) Upon receipt by the Bank of any notice from a competent authority of another Member State that -

• (a) acts contrary to the relevant community acts are being, or have been carried out within the territory of the State, or

• (b) acts are affecting financial instruments traded on a regulated market situated in the State,

then, without prejudice to the competence of that notifying competent authority, the Bank shall take appropriate action and inform the notifying competent authority of the outcome and, so far as possible, of significant interim developments.

• (9) The Bank shall consult with the appropriate competent authorities on any proposed follow-up with respect to any matter which is or was the subject of any notice given or received by the Bank under paragraph (7) or (8).

• (10) The Bank -

• (a) may request that an investigation be carried out by a competent authority of another Member State in the territory of the Member State and

• (b) may further request that agents or employees of the Bank may accompany the personnel of the competent authority of the Member State during the course of the investigation.

• (11) Subject to paragraph (13), upon receipt of a request from a competent authority of another Member State, the Bank shall conduct an investigation in the State with respect to the subject matter of the request.

• (12) Subject to paragraph (13), if requested by a competent authority of another Member State, the Bank may permit personnel of the competent authority to accompany personnel of the Bank during the course of an investigation conducted under paragraph (11).

• (13) The Bank may refuse to initiate an investigation upon receipt of a notice under paragraph (14), or refuse to permit the personnel of another competent authority to accompany its personnel pursuant to a request under paragraph (12), where -

• (a) the investigation might adversely affect the sovereignty, security or public policy of the State,

• (b) judicial proceedings have already been initiated in respect of the same actions and against the same persons before the authorities of the State or

• (c) a final judgment of a court of competent jurisdiction has already been delivered in relation to such persons for the same actions in the State.

• (14) The Bank shall -

• (a) notify the competent authority concerned of a refusal under paragraph (13), and

• (b) if the reason for the refusal falls with paragraph (13)(b) or (c), provide as detailed information as is possible on the relevant judicial proceedings or final judgment, as the case may be.

PART 3 Fair presentation of recommendations

Interpretation (Part 3)

16.

“distribution channels” means a channel through which information is, or is likely to become, publicly available;

“issuer” means an issuer of a financial instrument to which -

• (a) these Regulations apply pursuant to Regulation 4, and

• (b) a recommendation relates, directly or indirectly,

“likely to become publicly available information” means information to which a large number of persons have access;

“recommendation” means research or other information recommending or suggesting an investment strategy, explicitly or implicitly, concerning one or several financial instruments or the issuers of financial instruments, including any opinion as to the present or future value or price of such instruments, intended for distribution channels or for the public;

“related company” means a related company within the meaning of section 140 of the Companies Act 1990 ;

“relevant person” means a person producing or disseminating recommendations in the exercise of the person's profession or the conduct of the person's business;

“research or other information recommending or suggesting investment strategy” means -

• (a) information -

• (i) produced by an independent analyst, an investment firm, a credit institution, any other person whose main business is to produce recommendations or a person working for any of them under a contract of employment or otherwise, and

• (ii) that, directly or indirectly, expresses a particular investment recommendation in respect of a financial instrument or an issuer of financial instruments, or

• (b) information produced by persons other than the persons referred to in paragraph (a)(i) of this definition which directly recommends a particular investment decision in respect of a financial instrument.

Production and dissemination of recommendations

17.

• (a) take reasonable care to ensure that the recommendations are fairly presented, and

• (b) disclose any interests in or conflicts of interest concerning the financial instruments and issuer to which the recommendation relates.

Identity of producer of recommendation

18.

• (a) the name and job title of the individual who prepared the recommendation, and

• (b) the name of the person responsible for its production.

• (2) Subject to Regulation 26, where the relevant person responsible for the preparation or production of a recommendation is an investment firm or a credit institution the investment firm or credit institution shall ensure that the recommendation indicates clearly and prominently the identity of the relevant competent authority of the investment firm or credit institution, as the case may be.

• (3) Subject to Regulation 26, where the relevant person responsible for the preparation or production of a recommendation is neither a credit institution nor an investment firm but is subject to self-regulatory standards or codes of conduct, the relevant person shall ensure that a reference to those standards or codes, as the case may be, is disclosed clearly and prominently in the recommendation.

General standard for fair presentation of recommendations

19.

• (a) facts are clearly distinguished from interpretations, estimates, opinions and other types of non-factual information,

• (b) all sources are reliable or, where there is any doubt as to whether a source is reliable, this is clearly indicated, and

• (c) all projections, forecasts and price targets are clearly labelled as such and that the material assumptions made in producing or using them are indicated.

• (2) Subject to Regulation 26, a relevant person shall take reasonable care to ensure that any recommendation can be justified to the Bank if the Bank requests justification of the recommendation.

Additional obligations in relation to fair presentation of recommendations

20.

• (a) subject to paragraph (2), all substantially material sources are indicated, including -

• (i) a description of the relevant issuer,

• (ii) whether or not the recommendation has been disclosed to that issuer, and

• (iii) whether or not following such a disclosure the recommendation has been amended before its dissemination,

• (b) subject to paragraph (2), any basis of valuation or other methodology used to evaluate a financial instrument or an issuer of a financial instrument, or to set a price target for a financial instrument, is adequately summarised,

• (c) subject to paragraph (2), the meaning of any recommendation made such as buy, sell or hold, which may include the time horizon of the investment to which the recommendation relates, is adequately explained and any appropriate risk warning, including a sensitivity analysis of the relevant assumptions, indicated,

• (d) reference is made to the planned frequency, if any, of updates of the recommendation and to any major changes in the coverage policy previously announced,

• (e) the date on which the recommendation was first released for distribution is indicated clearly and prominently, as well as the relevant date and time for any financial instrument price mentioned, and

• (f) where a recommendation differs from a recommendation concerning the same financial instrument or issuer, issued during the 12 months immediately preceding its release, this change and the date of the earlier recommendation are indicated clearly and prominently.

• (2) Where the requirements of paragraph (1)(a), (b) or (c) would be disproportionate in relation to the length of the recommendation distributed, it is sufficient to make clear and prominent reference in the recommendation to a place where the required information can be directly and easily accessed by the public, such as a direct Internet link to that information on an appropriate Internet site of the relevant person, provided that there has been no change in the methodology or basis of valuation used.

General standard for disclosure of interests and conflicts of interest

21.

• (a) a significant financial interest in one or more of the financial instruments which are the subject of the recommendation, or

• (b) a significant conflict of interest with respect to an issuer to which the recommendation relates.

• (2) Where a relevant person is a legal person, paragraph (1) also applies to any person working for, or providing a service to, the relevant person under a contract of employment or otherwise, who was involved in preparing the recommendation.

• (3) Where the relevant person is a legal person, the information to be disclosed in accordance with paragraph (1) shall include the following -

• (a) any interests or conflicts of interest of the relevant person or of related companies that are accessible or reasonably expected to be accessible to the persons involved in the preparation of the recommendation, and

• (b) any interests or conflicts of interest of the relevant person or of related companies known to persons who, although not involved in the preparation of the recommendation, had or could reasonably be expected to have access to the recommendation prior to its dissemination to customers or the public.

• (4) Where a disclosure under this Regulation would be disproportionate in relation to the length of the recommendation distributed, it is sufficient to make clear and prominent reference in the recommendation to a place where the disclosure can be directly and easily accessed by the public, such as a direct Internet link to the disclosure on an appropriate Internet site of the relevant person.

Additional obligations in relation to disclosure of interests or conflicts of interest

22.

• (a) any major shareholdings that exist between the relevant person or any related company on the one hand and the issuer on the other hand (b) any other significant financial interests held by the relevant person or any related company in relation to the issuer,

• (c) where applicable, a statement that the relevant person or any related company is a market maker or liquidity provider in the financial instruments of the issuer,

• (d) where applicable, a statement that the relevant person or any related company has been lead manager or co-lead manager during the previous 12 months of any publicly disclosed offer of financial instruments of the issuer,

• (e) where applicable, a statement that the relevant person or any related company is party to any other agreement with the issuer relating to the provision of investment banking services, provided that this would not entail the disclosure of any confidential commercial information and that the agreement -

• (i) has been in effect during the previous 12 months, or

• (ii) has given rise during the same period to a payment of compensation or to a promise to pay compensation, and

• (f) where applicable, a statement that the relevant person or any related company is party to an agreement with the issuer relating to the production of the recommendation.

• (2) For the purposes of paragraph (1)(a), “major shareholdings” include -

• (a) a shareholding held by the relevant person or any related company that exceeds 5 % of the total issued share capital in the issuer, and

• (b) a shareholding held by the issuer exceeding 5 % of the total issued share capital in the relevant person or any related company.

• (3) Without prejudice to the generality of Regulation 21 and of paragraph (1), a relevant person which is an investment firm or a credit institution shall disclose clearly and prominently -

• (a) in general terms, the organisational and administrative arrangements set up within the investment firm or the credit institution, as the case may be, for the prevention and avoidance of conflicts of interest with respect to recommendations, including information barriers,

• (b) with respect to persons working for the investment firm or the credit institution, as the case may be, under a contract of employment or otherwise who are involved in preparing a recommendation, whether or not the remuneration of such persons is tied to investment banking transactions performed by the investment firm or credit institution, as the case may be, or any related company,

• (c) where persons referred to in subparagraph (b) receive or purchase the shares of the issuers prior to a public offering of the shares, the price at which the shares were acquired and the date of acquisition, and

• (d) on a quarterly basis, the proportion of all recommendations that fall within the categories buy, hold, sell or equivalent terms, as well as the proportion of issuers corresponding to each of those categories to which the investment firm or the credit institution, as the case may be has supplied material investment banking services over the previous 12 months.

• (4) Where a disclosure under this Regulation would be disproportionate in relation to the length of the recommendation distributed, it is sufficient to make clear and prominent reference in the recommendation to a place where the disclosure can be directly and easily accessed by the public, such as a direct Internet link to the disclosure on an appropriate Internet site of the relevant person.

Dissemination of recommendations produced by third parties

23.

• (2) Subject to paragraph (5), where a recommendation produced by a third party is substantially altered within the disseminated information, the person disseminating the information shall clearly indicate the substantial alteration in detail.