ESMA lets issuers delay news of a board appointment, but not a profit warning

A listed company that has chosen a new chief executive or director, but whose appointee has not yet told their current employer of the intention to leave, now has a named ground for holding the news back. The European Securities and Markets Authority's revised guidelines under the Market Abuse Regulation (MAR) add a legitimate interest for delay "where the appointment of a member of the issuer’s governing body or a manager holding a key position could be jeopardised", ESMA said on 16 October, when it published its final report. The guidelines apply to every issuer with financial instruments admitted on an EU trading venue, including issuers listed in Warsaw, Prague, Budapest and Bucharest. Authorities and market participants must make every effort to comply with ESMA guidelines; national supervisors comply or explain.

In the text of Guideline 1, point (e) covers an issuer that "has appointed a member of its governing body, a manager, or another person holding a key position, when the individual concerned has not yet informed their current employer of their intention to terminate their employment contract and the disclosure of the new appointment could jeopardise the effectiveness of the decision taken by the issuer’s governing body."

The appointment ground is one of five additions to the non-exhaustive list of reasons an issuer may give for delaying inside information under Article 17(4) of MAR. The others cover a public authority's instruction not to disclose, time to gather information about an exceptional event, the risk of losing a business opportunity, and delays applied elsewhere in a group. Guideline 1 says the cases "could include but are not limited to the following circumstances", according to the final report.

When the guidelines apply

There is no fixed calendar date. The final report states: "The Guidelines will apply from the date of their publication on ESMA website in all the EU official languages." National supervisors then have a deadline of their own. The report gives competent authorities two months, counted "Within two months of the date of publication of the guidelines on ESMA's website", to tell ESMA whether they comply, intend to comply, or do not comply and do not intend to.

Why the list was rewritten

The revision follows the EU Listing Act, which changed how MAR treats deals and decisions that unfold over weeks or months. ESMA's press release puts it this way: "Since June 2026, issuers are no longer required to immediately disclose inside information related to protracted processes before their completion."

The Commission set out those final events in Delegated Regulation (EU) 2026/789, published in the Official Journal on 16 July. For board changes, its Annex I lists the process as "Appointment or removal of members of an issuer's governing body or of managers holding a key role." The final event is "Decision on the appointment or removal." Disclosure is due "As soon as possible after the issuer's governing body has taken the decision to appoint or remove a member ..."

Once a board has decided on an appointment, the final event has occurred. The appointment interest gives the issuer a recognised reason to delay at that point, while the appointee has not yet informed their current employer, provided the other conditions of Article 17(4) are met.

ESMA deleted the legitimate interests linked to protracted processes, such as negotiations. It also removed its old Guideline 2, which described situations where a delay was likely to mislead the public. The Listing Act replaced that test with a condition that the information "is not in contrast with the latest public announcement or other communications by the issuer on the same matter", the report says, and "removed from the ESMA mandate regarding the Guidelines" the situations in which a delay is likely to mislead. The Commission now sets out a non-exhaustive list of situations of contrast in Annex II of Delegated Regulation 2026/789. The final report records: "No feedback to the consultation opposed to this amendment, thus ESMA maintains its initial proposal to delete Guideline 2."

Financial distress, but not a profit warning

ESMA kept and reworded the interest that covers an issuer in serious and imminent financial distress outside insolvency proceedings. Paragraph 30 of the report says the interest "does not extend to situations where the issuer is" "merely experiencing a deterioration in its financial performance" "such as profit warnings, which remain subject to the general disclosure obligations under Article 17(1) of MAR." The delegated regulation's Annex II lists "a material change to forecasts, financial results or business objectives" among situations of contrast.

The business-opportunity interest has also widened. The report describes disclosure that would risk "the loss of an identifiable and concrete business opportunity". In its own assessment, at paragraph 76, ESMA writes: "ESMA also agrees to extend this legitimate interest beyond public procurement to include private competitive contexts."

What the change means for board notices

Management changes in the region are frequent: the Appointments Register counted 33 chief executive, finance chief and chair changes from 1 to 17 October, and notices such as Komerční banka's on Etienne Loulergue's departure are routine. The guidelines leave the duty to announce a board decision as soon as possible unchanged.

What to watch

First, the date ESMA publishes the guidelines in all official languages, which sets both the date of application and the start of the two-month window for national authorities. Second, the notifications that the Polish, Czech, Hungarian and Romanian supervisors, like all national authorities, must send ESMA within two months of that publication. Third, how issuers' announcements of new chief executives and directors describe the timing of the board decision against the date of the notice.