MAR Market Conduct

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MAR 1

The Code of Market Conduct

MAR 1.1

Application and interpretation

MAR 1.1.1

handbook-guidance
This chapter (which contains the Code of Market Conduct) applies to all persons seeking guidance on the market abuse regime.

MAR 1.1.2

handbook-guidance

This chapter provides assistance in determining whether or not behaviour amounts to market abuse. It also forms part of the UK's implementation of the Market Abuse Directive (including its EU implementing legislation, that is Directive 2003/124/EC, Directive 2003/125/EC, Regulation 2273/2003 and Directive 2004/72/EC). It is therefore likely to be helpful to persons who:

  1. (1) want to avoid engaging in market abuse or to avoid requiring or encouraging another to do so; or
  2. (2) want to determine whether they are required by SUP 15.10 (Reporting suspicious transactions (market abuse)) to report a transaction to the FSA as a suspicious one.

MAR 1.1.3

handbook-guidance
The FSA's statement of policy about the imposition and amount of penalties in cases of market abuse (required by section 124 of the Act) is in DEPP 6.

Using MAR 1

MAR 1.1.4

handbook-guidance
  1. (1) Assistance in the interpretation of MAR 1 (and the remainder of the Handbook) is given in the Readers' Guide to the Handbook and in GEN 2 (Interpreting the Handbook). This includes an explanation of the status of the types of provision used (see in particular chapter six of the Readers' Guide to the Handbook).
  2. (2) Provisions designated with "C" indicate behaviour which conclusively, for the purposes of the Act, does not amount to market abuse (see section 122(1) of the Act).

MAR 1.1.5

handbook-guidance

Part VIII of the Act, and in particular section 118, specifies seven types of behaviour which can amount to market abuse. This chapter considers the general concepts relevant to market abuse, then each type of behaviour in turn and then describes exceptions to market abuse which are of general application. In doing so, it sets out the relevant provisions of the Code of Market Conduct, that is:

  1. (1) descriptions of behaviour that, in the opinion of the FSA, do or do not amount to market abuse (see section 119(2)(a) and (b) and section 122 of the Act);
  2. (2) descriptions of behaviour that are or are not accepted market practices in relation to one or more identified markets (see section 119(2)(d) and (e) and section 122(1) of the Act (subject to the behaviour being for legitimate reasons)); and
  3. (3) factors that, in the opinion of the FSA, are to be taken into account in determining whether or not behaviour amounts to market abuse (see section 119(2)(c) and section 122(2) of the Act).

MAR 1.1.6

handbook-guidance

The Code does not exhaustively describe all types of behaviour that may or may not amount to market abuse. In particular, the descriptions of behaviour which, in the opinion of the FSA, amount to market abuse should be read in the light of:

  1. (1) the elements specified by the Act as making up the relevant type of market abuse; and
  2. (2) any relevant descriptions of behaviour which, in the opinion of the FSA, do not amount to market abuse.

MAR 1.1.7

handbook-guidance
Likewise, the Code does not exhaustively describe all the factors to be taken into account in determining whether behaviour amounts to market abuse. If factors are described, they are not to be taken as conclusive indications, unless specified as such, and the absence of a factor mentioned does not, of itself, amount to a contrary indication.

MAR 1.1.8

handbook-guidance
For the avoidance of doubt, it should be noted that any reference in the Code to "profit" refers also to potential profits, avoidance of loss or potential avoidance of loss.

MAR 1.2

Market Abuse: general

MAR 1.2.1

handbook-guidance
Provisions in this section are relevant to more than one of the types of behaviour which may amount to market abuse.

MAR 1.2.2

handbook-uk-text

Table: section 118(1) of the Act

MAR 1.2.3

handbook-guidance
Section 118(1)(a) of the Act does not require the person engaging in the behaviour in question to have intended to commit market abuse.

MAR 1.2.4

handbook-guidance
Statements in this chapter to the effect that behaviour will amount to market abuse assume that the test in section 118(1)(a) of the Act has also been met.

Prescribed markets and qualifying investments: "in relation to": factors to be taken into account

MAR 1.2.5

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not behaviour prior to a request for admission to trading or the admission to or the commencement of trading satisfies section 118(1)(a) of the Act, and are indications that it does:
  1. (1) if it is in relation to qualifying investments in respect of which a request for admission to trading on a prescribed market is subsequently made; and
  2. (2) if it continues to have an effect once an application has been made for the qualifying investment to be admitted for trading, or it has been admitted to trading on a prescribed market, respectively.

MAR 1.2.6

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not refraining from action amounts to behaviour which satisfies section 118(1)(a) of the Act and are indications that it does:
  1. (1) if the person concerned has failed to discharge a legal or regulatory obligation (for example to make a particular disclosure) by refraining from acting; or
  2. (2) if the person concerned has created a reasonable expectation of him acting in a particular manner, as a result of his representations (by word or conduct), in circumstances which give rise to a duty or obligation to inform those to whom he made the representations that they have ceased to be correct, and he has not done so.

Insiders: factors to be taken into account

MAR 1.2.7

handbook-uk-text

Table: section 118B of the Act

MAR 1.2.8

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a person could reasonably be expected to know that information in his possession is inside information and therefore whether he is an insider under section 118B(e) of the Act, and indicate that the person is an insider:
  1. (1) if a normal and reasonable person in the position of the person who has inside information would know or should have known that the person from whom he received it is an insider; and
  2. (2) if a normal and reasonable person in the position of the person who has inside information would know or should have known that it is inside information.

MAR 1.2.9

handbook-guidance
For the purposes of the other categories of insider specified by section 118B(a) to (d), the person concerned does not need to know that the information concerned is inside information.

Inside information: factors to be taken into account

MAR 1.2.10

handbook-uk-text

Table: section 118C(2) and (3) of the Act

MAR 1.2.11

handbook-guidance
The phrase "precise nature" is defined in section 118C(5) of the Act. This phrase is also relevant to section 118C(4) of the Act.

MAR 1.2.12

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not information is generally available, and are indications that it is (and therefore not inside information):
  1. (1) whether the information has been disclosed to a prescribed market through a regulatory information service or RIS or otherwise in accordance with the rules of that market;
  2. (2) whether the information is contained in records which are open to inspection by the public;
  3. (3) whether the information is otherwise generally available, including through the Internet, or some other publication (including if it is only available on payment of a fee), or is derived from information which has been made public;
  4. (4) whether the information can be obtained by observation by members of the public without infringing rights or obligations of privacy, property or confidentiality; and
  5. (5) the extent to which the information can be obtained by analysing or developing other information which is generally available. [Note: Recital 31 Market Abuse Directive]

MAR 1.2.13

handbook-evidential-provisions
  1. (1) In relation to the factors in MAR 1.2.12E it is not relevant that the information is only generally available outside the UK.
  2. (2) In relation to the factors in MAR 1.2.12E (1), (3), (4) and (5) it is not relevant that the observation or analysis is only achievable by a person with above average financial resources, expertise or competence.

MAR 1.2.14

handbook-guidance
For example, if a passenger on a train passing a burning factory calls his broker and tells him to sell shares in the factory's owner, the passenger will be acting on information which is generally available, since it is information which has been obtained by legitimate means through observation of a public event.
  • 01/07/2005

MAR 1.2.15

handbook-uk-text

Table: section 118C(4) of the Act

  • 01/07/2005

MAR 1.2.16

handbook-evidential-provisions
In the opinion of the FSA, a factor which indicates that there is a pending order for a client is, if a person is approached by another in relation to a transaction, and:
  1. (1) the transaction is not immediately executed on an arm's length basis in response to a price quoted by that person; and
  2. (2) the person concerned has taken on a legal or regulatory obligation relating to the manner or timing of the execution of the transaction.

Inside information: commodity derivatives

MAR 1.2.17

handbook-guidance
The Act (and the Market Abuse Directive) recognise that there are differences in the nature of information which is important to commodity derivatives markets and that which is important to other markets. In particular, inside information is limited by reference to what the market participants expect to receive information about.
  • 01/07/2005

MAR 1.2.18

handbook-uk-text

Table: section 118C(3) of the Act

  • 01/07/2005

MAR 1.2.19

handbook-uk-text

Table: section 118C(7) of the Act

  • 01/07/2005

The regular user

MAR 1.2.20

handbook-guidance

In section 118 of the Act, the regular user decides:

  1. (1) whether information that is not generally available would or would be likely to be relevant when deciding the terms on which transactions in qualifying investments or related investments should be effected (section 118(4)(a) of the Act); and
  2. (2) whether behaviour:
    1. (a) based on information meeting the criteria in section 118(4)(a) is below the expected standard (section 118(4)(b)); or
    2. (b) creates or is likely to create a false or misleading impression or distorts the market or (section 118(8)); or
    3. (c) which creates or is likely to create a false or misleading impression or distorts the market is below the expected standard (section 118(8)).

MAR 1.2.21

handbook-guidance
The regular user is a hypothetical reasonable person who regularly deals on the market and in the investments of the kind in question. The presence of the regular user imports an objective element into the elements listed in MAR 1.2.15 UK while retaining some subjective features of the markets for the investments in question.

Requiring or encouraging

MAR 1.2.22

handbook-uk-text

Table: section 123(1)(b) of the Act

  • 01/07/2005

MAR 1.2.23

handbook-guidance

The following are examples of behaviour that might fall within the scope of section 123(1)(b):

  1. (1) a director of a company, while in possession of inside information, instructs an employee of that company to deal in qualifying investments or related investments in respect of which the information is inside information;
  2. (2) a person recommends or advises a friend to engage in behaviour which, if he himself engaged in it, would amount to market abuse.
  • 01/07/2005

MAR 1.3

Market abuse (insider dealing)

MAR 1.3.1

handbook-uk-text

Table: section 118(2) of the Act

Descriptions of behaviour that amount to market abuse (insider dealing)

MAR 1.3.2

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA, market abuse (insider dealing):
  1. (1) dealing on the basis of inside information which is not trading information;
  2. (2) front running/pre-positioning - that is, a transaction for a person's own benefit, on the basis of and ahead of an order which he is to carry out with or for another (in respect of which information concerning the order is inside information), which takes advantage of the anticipated impact of the order on the market price;
  3. (3) in the context of a takeover, an offeror or potential offeror entering into a transaction in a qualifying investment, on the basis of inside information concerning the proposed bid, that provides merely an economic exposure to movements in the price of the target company's shares (for example, a spread bet on the target company's share price); and
  4. (4) in the context of a takeover, a person who acts for the offeror or potential offeror dealing for his own benefit in a qualifying investment or related investments on the basis of information concerning the proposed bid which is inside information.

Factors to be taken into account: "on the basis of"

MAR 1.3.3

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a person's behaviour is "on the basis of" inside information, and are each indications that it is not:
  1. (1) if the decision to deal or attempt to deal was made before the person possessed the relevant inside information; or
  2. (2) if the person concerned is dealing to satisfy a legal or regulatory obligation which came into being before he possessed the relevant inside information; or
  3. (3) if a person is an organisation, if none of the individuals in possession of the inside information:
    1. (a) had any involvement in the decision to deal; or
    2. (b) behaved in such a way as to influence, directly or indirectly, the decision to engage in the dealing; or
    3. (c) had any contact with those who were involved in the decision to engage in the dealing whereby the information could have been transmitted.
  • 01/07/2005

MAR 1.3.4

handbook-evidential-provisions
In the opinion of the FSA, if the inside information is the reason for, or a material influence on, the decision to deal or attempt to deal, that indicates that the person's behaviour is "on the basis of" inside information.
  • 01/07/2005

MAR 1.3.5

handbook-evidential-provisions
In the opinion of the FSA, if the inside information is held behind an effective Chinese wall, or similarly effective arrangements, from the individuals who are involved in or who influence the decision to deal, that indicates that the decision to deal by an organisation is not "on the basis of" inside information.
  • 01/07/2005

Descriptions of behaviour that do not amount to market abuse (insider dealing) and relevant factors: legitimate business of market makers etc:

MAR 1.3.6

handbook-conduct
A person will form an intention to buy or sell a qualifying investment or a related investment before doing so. His carrying out of his own intention is not in itself market abuse (insider dealing). [Note: Recital 30 Market Abuse Directive]

MAR 1.3.7

handbook-conduct
For market makers and persons that may lawfully deal in qualifying investments or related investments on their own account, pursuing their legitimate business of such dealing (including entering into an agreement for the underwriting of an issue of financial instruments) will not in itself amount to market abuse (insider dealing). [Note: Recital 18 Market Abuse Directive]
  • 01/07/2005

MAR 1.3.8

handbook-guidance
MAR 1.3.7 C applies even if the person concerned in fact possesses trading information which is inside information.
  • 01/07/2005

MAR 1.3.9

handbook-evidential-provisions
In the opinion of the FSA, if the inside information is not limited to trading information, (except in relation to an agreement for the underwriting of an issue of financial instruments) that indicates that the behaviour is not in pursuit of legitimate business.
  • 01/07/2005

MAR 1.3.10

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a person's behaviour is in pursuit of legitimate business, and are indications that it is:
  1. (1) the extent to which the relevant trading by the person is carried out in order to hedge a risk, and in particular the extent to which it neutralises and responds to a risk arising out of the person's legitimate business; or
  2. (2) whether, in the case of a transaction on the basis of inside information about a client's transaction which has been executed, the reason for it being inside information is that information about the transaction is not, or is not yet, required to be published under any relevant regulatory or exchange obligations; or
  3. (3) whether, if the relevant trading by that person is connected with a transaction entered into or to be entered into with a client (including a potential client), the trading either has no impact on the price or there has been adequate disclosure to that client that trading will take place and he has not objected to it; or
  4. (4) the extent to which the person's behaviour was reasonable by the proper standards of conduct of the market concerned, taking into account any relevant regulatory or legal obligations and whether the transaction is executed in a way which takes into account the need for the market as a whole to operate fairly and efficiently.
  • 01/07/2005

MAR 1.3.11

handbook-evidential-provisions
In the opinion of the FSA, if the person acted in contravention of a relevant legal, regulatory or exchange obligation, that is a factor to be taken into account in determining whether or not a person's behaviour is in pursuit of legitimate business, and is an indication that it is not.
  • 01/07/2005

Descriptions of behaviour that do not amount to market abuse (insider dealing) and relevant factors: execution of client orders

MAR 1.3.12

handbook-conduct
The dutiful carrying out of, or arranging for the dutiful carrying out of, an order on behalf of another (including as portfolio manager) will not in itself amount to market abuse (insider dealing) by the person carrying out that order. [Note: Recital 18 Market Abuse Directive]

MAR 1.3.13

handbook-guidance
MAR 1.3.12 C applies whether or not the person carrying out the order or the person for whom he is acting in fact possesses inside information. Also, a person that carries out an order on behalf of another will not, merely as a result of that action, be considered to have any inside information held by that other person.

MAR 1.3.14

handbook-evidential-provisions
In the opinion of the FSA, if the inside information is not limited to trading information, that indicates that the behaviour is not dutiful carrying out of an order on behalf of a client.
  • 01/07/2005

MAR 1.3.15

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a person's behaviour is dutiful execution of an order on behalf of another, and are indications that it is:
  1. (1) whether the person has complied with the applicable provisions of COBS , or their equivalents in the relevant jurisdiction; or
  2. (2) whether the person has agreed with its client it will act in a particular way when carrying out, or arranging the carrying out of, the order; or
  3. (3) whether the person's behaviour was with a view to facilitating or ensuring the effective carrying out of the order; or
  4. (4) the extent to which the person's behaviour was reasonable by the proper standards of conduct of the market concerned and (if relevant) proportional to the risk undertaken by him; or
  5. (5) whether, if the relevant trading by that person is connected with a transaction entered into or to be entered into with a client (including a potential client), the trading either has no impact on the price or there has been adequate disclosure to that client that trading will take place and he has not objected to it.

MAR 1.3.16

handbook-guidance
Some steps which a person takes as a result of carrying out a client transaction may be within the scope of MAR 1.3.6 C to MAR 1.3.11 E rather than being part of dutiful execution.
  • 01/07/2005

Descriptions of behaviour that do not amount to market abuse (insider dealing) and relevant factors: takeover and merger activity

MAR 1.3.17

handbook-conduct
Behaviour, based on inside information relating to another company, in the context of a public takeover bid or merger for the purpose of gaining control of that company or proposing a merger with that company, does not of itself amount to market abuse (insider dealing) [Note: see Recital 29 Market Abuse Directive], including:
  1. (1) seeking from holders of securities, issued by the target, irrevocable undertakings or expressions of support to accept an offer to acquire those securities (or not to accept such an offer);
  2. (2) making arrangements in connection with an issue of securities that are to be offered as consideration for the takeover or merger offer or to be issued in order to fund the takeover or merger offer, including making arrangements for the underwriting or placing of those securities and any associated hedging arrangements by underwriters or places which are proportionate to the risks assumed; and
  3. (3) making arrangements to offer cash as consideration for the takeover or merger offer as an alternative to securities consideration.
  • 01/07/2005

MAR 1.3.18

handbook-guidance

There are two categories of inside information relevant to MAR 1.3.17 C:

  1. (1) information that an offeror or potential offeror is going to make, or is considering making, an offer for the target;
  2. (2) information that an offeror or potential offeror may obtain through due diligence.
  • 01/07/2005

MAR 1.3.19

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a person's behaviour is for the purpose of him gaining control of the target company or him proposing a merger with that company, and are indications that it is:
  1. (1) whether the transactions concerned are in the target company's shares; or
  2. (2) whether the transactions concerned are for the sole purpose of gaining that control or effecting that merger.
  • 01/07/2005

Examples of market abuse (insider dealing)

MAR 1.3.20

handbook-guidance

The following examples of market abuse (insider dealing) concern the definition of inside information relating to financial instruments other than commodity derivatives.

  1. (1) X, a director at B PLC has lunch with a friend, Y. X tells Y that his company has received a takeover offer that is at a premium to the current share price at which it is trading. Y enters into a spread bet priced or valued by reference to the share price of B PLC based on his expectation that the price in B PLC will increase once the take over offer is announced.
  2. (2) An employee at B PLC obtains the information that B PLC has just lost a significant contract with its main customer. Before the information is announced over the regulatory information service the employee, whilst being under no obligation to do so, sells his shares in B PLC based on the information about the loss of the contract.
  • 01/07/2005

MAR 1.3.21

handbook-guidance
The following example of market abuse (insider dealing) concerns the definition of inside information relating to commodity derivatives.

Before the official publication of LME stock levels, a metals trader learns (from an insider) that there has been a significant decrease in the level of LME aluminium stocks. This information is routinely made available to users of that prescribed market. The trader buys a substantial number of futures in that metal on the LME, based upon his knowledge of the significant decrease in aluminium stock levels.
  • 01/07/2005

MAR 1.3.22

handbook-guidance
The following example of market abuse (insider dealing) concerns the definition of inside information relating to pending client orders.

A dealer on the trading desk of a firm dealing in oil derivatives accepts a very large order from a client to acquire a long position in oil futures deliverable in a particular month. Before executing the order, the dealer trades for the firm and on his personal account by taking a long position in those oil futures, based on the expectation that he will be able to sell them at profit due to the significant price increase that will result from the execution of his client's order. Both trades will be market abuse (insider dealing).
  • 01/07/2005

MAR 1.3.23

handbook-guidance

The following connected examples of market abuse (insider dealing) concerns the differences in the definition of inside information for commodity derivatives and for other financial instruments.

  1. (1) A person deals, on a prescribed market, in the equities of XYZ plc, a commodity producer, based on inside information concerning that company.
  2. (2) A person deals, in a commodity futures contract traded on a prescribed market, based on the same information, provided that the information is required to be disclosed under the rules of the relevant commodity futures market.
  • 01/07/2005

MAR 1.4

Market abuse (improper disclosure)

MAR 1.4.1

handbook-uk-text

Table: section 118(3) of the Act

Descriptions of behaviour that amount to market abuse (improper disclosure)

MAR 1.4.2

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA, market abuse (improper disclosure):
  1. (1) disclosure of inside information by the director of an issuer to another in a social context; and
  2. (2) selective briefing of analysts by directors of issuers or others who are persons discharging managerial responsibilities.

Descriptions of behaviour that does not amount to market abuse (improper disclosure)

MAR 1.4.3

handbook-conduct
Disclosure of inside information will not amount to market abuse (improper disclosure), if it is made:
  1. (1) to a government department, the Bank of England, the Competition Commission, the Takeover Panel or any other regulatory body or authority for the purposes of fulfilling a legal or regulatory obligation; or
  2. (2) otherwise to such a body in connection with the performance of the functions of that body.

MAR 1.4.4

handbook-conduct
Disclosure of inside information which is required or permitted by Part 6 rules (or any similar regulatory obligation) will not amount to market abuse (improper disclosure).

Factors to be taken into account in determining whether or not behaviour amounts to market abuse (improper disclosure)

MAR 1.4.5

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not the disclosure was made by a person in the proper course of the exercise of his employment, profession or duties, and are indications that it was:
  1. (1) whether the disclosure is permitted by the rules of a prescribed market, of the FSA or the Takeover Code; or
  2. (2) whether the disclosure is accompanied by the imposition of confidentiality requirements upon the person to whom the disclosure is made and is:
    1. (a) reasonable and is to enable a person to perform the proper functions of his employment, profession or duties; or
    2. (b) reasonable and is (for example, to a professional adviser) for the purposes of facilitating or seeking or giving advice about a transaction or takeover bid; or
    3. (c) reasonable and is for the purpose of facilitating any commercial, financial or investment transaction (including prospective underwriters or placees of securities); or
    4. (d) reasonable and is for the purpose of obtaining a commitment or expression of support in relation to an offer which is subject to the Takeover Code; or
    5. (e) in fulfilment of a legal obligation, including to employee representatives or trade unions acting on their behalf; or
  3. (3) whether:
    1. (a) the information disclosed is trading information;
    2. (b) the disclosure is made by a person ("A") only to the extent necessary, and solely in order, to offer to dispose of the investment to, or acquire the investment from, the person receiving the information; and
    3. (c) it is reasonable for A to make the disclosure to enable him to perform the proper functions of his employment, profession or duties.

MAR 1.4.5A

handbook-guidance
MAR 1.4.5 E (3) is intended only to apply to an actual offer of the investment. It is not intended to apply to a disclosure of trading information to gauge potential interest in the investments to be offered or to help establish the likely price that will be obtained.
  • 14/12/2007

Examples of market abuse (improper disclosure)

MAR 1.4.6

handbook-guidance
The following is an exampleof market abuse (improper disclosure):

X, a director at B PLC has lunch with a friend, Y, who has no connection with B PLC or its advisers. X tells Y that his company has received a takeover offer that is at a premium to the current share price at which it is trading.

MAR 1.4.7

handbook-guidance
The following is an example of encouraging another to engage in market abuse (improper disclosure):

X, an analyst employed by an investment bank, telephones the finance director at B PLC and presses for details of the profit and loss account from the latest unpublished management accounts of B PLC.

MAR 1.5

Market abuse (misuse of information)

MAR 1.5.1

handbook-uk-text

Table: section 118(4) of the Act:

Descriptions of behaviour that amount to market abuse (misuse of information)

MAR 1.5.2

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA, market abuse (misuse of information):
  1. (1) dealing or arranging deals in qualifying investments based on relevant information, which is not generally available and relates to matters which a regular user would reasonably expect to be disclosed to users of the particular prescribed market, but which does not amount to market abuse (insider dealing) (whether because the dealing relates to a qualifying investment to which section 118(2) does not apply or because the relevant information is not inside information); and
  2. (2) a director giving relevant information, which is not generally available and relates to matters which a regular user would reasonably expect to be disclosed to users of the particular prescribed market, to another otherwise than in the proper course of the exercise of his employment or duties, in a way which does not amount to market abuse (improper disclosure) (whether because the relevant information is not inside information or for some other reason).

MAR 1.5.3

handbook-guidance

The following behaviours are, in the opinion of the FSA, capable of amounting to market abuse (misuse of information):

  1. (1) dealing in a qualifying investment based on relevant information, which is not generally available and is not inside information;
  2. (2) behaviour, other than dealing in a qualifying investment or a related investment, that is based on relevant information which is not generally available and is not inside information; and
  3. (3) entering into a transaction, which is not a qualifying investment or a related investment, based on relevant information which is not generally available and is not inside information.

Factors to be taken into account: "generally available"

MAR 1.5.4

handbook-evidential-provisions
The factors taken into account in deciding whether or not information is generally available for the purposes of the definition of inside information (see MAR 1.2.12 E - MAR 1.2.13 E) will also be relevant when considering whether or not behaviour amounts to market abuse (misuse of information).

Factors to be taken into account: "based on"

MAR 1.5.5

handbook-evidential-provisions
The factors taken into account in deciding whether or not a person's behaviour is "on the basis of" inside information (see MAR 1.3.3 E - MAR 1.3.5 E) will also be relevant when considering whether or not behaviour is "based on" relevant information which is not generally available to those using the market.

Factors to be taken into account: "relevant information"

MAR 1.5.6

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a regular user would regard information as relevant information, and are indications that he would:
  1. (1) the extent to which the information is reliable, including how near the person providing the information is, or appears to be, to the original source of that information and the reliability of that source; or
  2. (2) if the information differs from information which is generally available and can therefore be said to be new or fresh information; or
  3. (3) in the case of information relating to possible future developments which are not currently required to be disclosed but which, if they occur, will lead to a disclosure or announcement being made whether the information provides, with reasonable certainty, grounds to conclude that the possible future developments will, in fact, occur; or
  4. (4) if there is no other material information which is already generally available to inform users of the market.

Factors to be taken into account: standards of behaviour

MAR 1.5.7

handbook-evidential-provisions
In the opinion of the FSA , the following factors are to be taken into account when considering whether a regular user would reasonably expect the relevant information to be disclosed to users of the particular prescribed market, or to be announced, and accordingly whether behaviour is likely to be regarded by a regular user as failing to meet the expected standard and are indications that he would:
  1. (1) if the relevant information has to be disclosed in accordance with any legal or regulatory requirement, such as:
    1. (a) information which is required to be disseminated under the Takeover Code (or itsequivalent in the relevant jurisdiction) on, or in relation to, qualifying investments; or
    2. (b) information which is required to be disseminated under the Part 6 rules (or their equivalents in the relevant jurisdiction); or
    3. (c) information required to be disclosed by an issuer under the laws, rules or regulations applying to the prescribed market on which its issued qualifying investments are traded or admitted to trading; or
  2. (2) if the relevant information is routinely the subject of a public announcement although not subject to any formal disclosure requirement, such as:
    1. (a) information which is to be the subject of official announcement by governments, central monetary or fiscal authorities or a regulatory body (financial or otherwise, including exchanges); or
    2. (b) changes to published credit ratings of issuers of qualifying investments; or
    3. (c) changes to the constituents of a securities index, where the securities are qualifying investments; or
  3. (3) if behaviour is based on information relating to possible future developments, if it is reasonable to believe that the information in question will subsequently become of a type within (1) or (2).

Descriptions of behaviour that does not amount to market abuse (misuse of information)

MAR 1.5.8

handbook-guidance

MAR 1.5.9

handbook-conduct
Behaviour falling within the descriptions of behaviour that do not amount to market abuse (insider dealing) (MAR 1.3.6 C, MAR 1.3.7 C, MAR 1.3.12 C and MAR 1.3.17 C), or that would fall within those descriptions, if the references in those descriptions to inside information included a reference to relevant information, also do not amount to market abuse (misuse of information).

Examples of market abuse (misuse of information)

MAR 1.5.10

handbook-evidential-provisions
The following behaviour may amount to market abuse (misuse of information):
  1. (1) X, a director at B PLC, has lunch with a friend, Y. X tells Y that his company has received a takeover offer. Y places a fixed odds bet with a bookmaker that B PLC will be the subject of a bid within a week, based on his expectation that the take over offer will be announced over the next few days.
  2. (2) Informal, non-contractual icing of qualifying investments by the manager of a proposed issue of convertible or exchangeable bonds, which are to be the subject of a public marketing effort, with a view to subsequent borrowing by it of those qualifying investments based on relevant information about the forthcoming issue:
    1. (a) which is not generally available; and
    2. (b) which a regular user would reasonably expect to be disclosed to users of the relevant prescribed market;
  3. where this has the effect of withdrawing those qualifying investments from the lending market in order to lend it to the issue manager in such a way that other market participants are disadvantaged.
  4. (3) An employee of B PLC is aware of contractual negotiations between B PLC and a customer. Transactions with that customer have generated over 10% of B PLC's turnover in each of the last five financial years. The employee knows that the customer has threatened to take its business elsewhere, and that the negotiations, while ongoing, are not proceeding well. The employee, whilst being under no obligation to do so, sells his shares in B PLC based on his assessment that it is reasonably likely that the customer will take his business elsewhere.

MAR 1.6

Market abuse (manipulating transactions)

MAR 1.6.1

handbook-uk-text

Table: section 118(5) of the Act

Descriptions of behaviour that amount to market abuse (manipulating transactions): false or misleading impressions

MAR 1.6.2

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA, market abuse (manipulating transactions) of a type involving false or misleading impressions:
  1. (1) buying or selling qualifying investments at the close of the market with the effect of misleading investors who act on the basis of closing prices, other than for legitimate reasons; [Note: Article 1.2(c) Market Abuse Directive]
  2. (2) wash trades - that is, a sale or purchase of a qualifying investment where there is no change in beneficial interest or market risk, or where the transfer of beneficial interest or market risk is only between parties acting in concert or collusion, other than for legitimate reasons;
  3. (3) painting the tape - that is, entering into a series of transactions that are shown on a public display for the purpose of giving the impression of activity or price movement in a qualifying investment; and
  4. (4) entering orders into an electronic trading system, at prices which are higher than the previous bid or lower than the previous offer, and withdrawing them before they are executed, in order to give a misleading impression that there is demand for or supply of the qualifying investment at that price.

MAR 1.6.3

handbook-guidance
For the avoidance of doubt a stock lending/borrowing or repo/reverse repo transaction, or another transaction involving the provision of collateral, do not constitute a wash trade under MAR 1.6.2E (2).

Descriptions of behaviour that amount to market abuse (manipulating transactions): price positioning

MAR 1.6.4

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA, market abuse (manipulating transactions) involving securing the price of a qualifying investment:
  1. (1) transactions or orders to trade by a person, or persons acting in collusion, that secure a dominant position over the supply of or demand for a qualifying investment and which have the effect of fixing, directly or indirectly, purchase or sale prices or creating other unfair trading conditions, other than for legitimate reasons; [Note: Article 1.2(c) Market Abuse Directive]
  2. (2) transactions where both buy and sell orders are entered at, or nearly at, the same time, with the same price and quantity by the same party, or different but colluding parties, other than for legitimate reasons, unless the transactions are legitimate trades carried out in accordance with the rules of the relevant trading platform (such as crossing trades);
  3. (3) entering small orders into an electronic trading system, at prices which are higher than the previous bid or lower than the previous offer, in order to move the price of the qualifying investment, other than for legitimate reasons;
  4. (4) an abusive squeeze - that is, a situation in which a person:
    1. (a) has a significant influence over the supply of, or demand for, or delivery mechanisms for a qualifying investment or related investment or the underlying product of a derivative contract;
    2. (b) has a position (directly or indirectly) in an investment under which quantities of the qualifying investment, related investment, or product in question are deliverable; and
    3. (c) engages in behaviour with the purpose of positioning at a distorted level the price at which others have to deliver, take delivery or defer delivery to satisfy their obligations in relation to a qualifying investment (the purpose need not be the sole purpose of entering into the transaction or transactions, but must be an actuating purpose);
  5. (5) parties, who have been allocated qualifying investments in a primary offering, colluding to purchase further tranches of those qualifying investments when trading begins, in order to force the price of the qualifying investments to an artificial level and generate interest from other investors, and then sell the qualifying investments;
  6. (6) transactions or orders to trade employed so as to create obstacles to the price falling below a certain level, in order to avoid negative consequences for the issuer, for example a downgrading of its credit rating; and
  7. (7) trading on one market or trading platform with a view to improperly influencing the price of the same or a related qualifying investment that is traded on another prescribed market.

Factors to be taken into account: "legitimate reasons"

MAR 1.6.5

handbook-evidential-provisions
In the opinion of the FSA the following factors are to be taken into account when considering whether behaviour is for "legitimate reasons", and are indications that it is not:
  1. (1) if the person has an actuating purpose behind the transaction to induce others to trade in, or to position or move the price of, a qualifying investment;
  2. (2) if the person has another, illegitimate, reason behind the transactions or order to trade; [Note: Recital 20 Market Abuse Directive]
  3. (3) if the transaction was executed in a particular way with the purpose of creating a false or misleading impression.

MAR 1.6.6

handbook-evidential-provisions
In the opinion of the FSA the following factors are to be taken into account when considering whether behaviour is for "legitimate reasons", and are indications that it is:
  1. (1) if the transaction is pursuant to a prior legal or regulatory obligation owed to a third party;
  2. (2) if the transaction is executed in a way which takes into account the need for the market as a whole to operate fairly and efficiently;
  3. (3) the extent to which the transaction generally opens a new position, so creating an exposure to market risk, rather than closes out a position and so removes market risk; and
  4. (4) if the transaction complied with the rules of the relevant prescribed markets about how transactions are to be executed in a proper way (for example, rules on reporting and executing cross-transactions).

MAR 1.6.7

handbook-guidance
It is unlikely that the behaviour of market users when trading at times and in sizes most beneficial to them (whether for the purpose of long term investment objectives, risk management or short term speculation) and seeking the maximum profit from their dealings will of itself amount to distortion. Such behaviour, generally speaking, improves the liquidity and efficiency of markets.

MAR 1.6.8

handbook-guidance
It is unlikely that prices in the market which are trading outside their normal range will necessarily be indicative that someone has engaged in behaviour with the purpose of positioning prices at a distorted level. High or low prices relative to a trading range can be the result of the proper interplay of supply and demand.

Factors to be taken into account: behaviour giving a false or misleading impression

MAR 1.6.9

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a person's behaviour amounts to market abuse (manipulating transactions): [Note: Article 4 2003/124/EC]
  1. (1) the extent to which orders to trade given or transactions undertaken represent a significant proportion of the daily volume of transactions in the relevant qualifying investment on the regulated market concerned, in particular when these activities lead to a significant change in the price of the qualifying investment;
  2. (2) the extent to which orders to trade given or transactions undertaken by persons with a significant buying or selling position in a qualifying investment lead to significant changes in the price of the qualifying investment or related derivative or underlying asset admitted to trading on a regulated market;
  3. (3) whether transactions undertaken lead to no change in beneficial ownership of a qualifying investment admitted to trading on a regulated market;
  4. (4) the extent to which orders to trade given or transactions undertaken include position reversals in a short period and represent a significant proportion of the daily volume of transactions in the relevant qualifying investment on the regulated market concerned, and might be associated with significant changes in the price of a qualifying investment admitted to trading on a regulated market;
  5. (5) the extent to which orders to trade given or transactions undertaken are concentrated within a short time span in the trading session and lead to a price change which is subsequently reversed;
  6. (6) the extent to which orders to trade given change the representation of the best bid or offer prices in a financial instrument admitted to trading on a regulated market, or more generally the representation of the order book available to market participants, and are removed before they are executed; and
  7. (7) the extent to which orders to trade are given or transactions are undertaken at or around a specific time when reference prices, settlement prices and valuations are calculated and lead to price changes which have an effect on such prices and valuations.

Factors to be taken into account: behaviour securing an abnormal or artificial price level

MAR 1.6.10

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not a person's behaviour amounts to market abuse (manipulating transactions):
  1. (1) the extent to which the person had a direct or indirect interest in the price or value of the qualifying investment or related investment;
  2. (2) the extent to which price, rate or option volatility movements, and the volatility of these factors for the investment in question, are outside their normal intra-day, daily, weekly or monthly range; and
  3. (3) whether a person has successively and consistently increased or decreased his bid, offer or the price he has paid for a qualifying investment or related investment.

Factors to be taken into account: abusive squeezes

MAR 1.6.11

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account when determining whether a person has engaged in an abusive squeeze:
  1. (1) the extent to which a person is willing to relax his control or other influence in order to help maintain an orderly market, and the price at which he is willing to do so; for example, behaviour is less likely to amount to an abusive squeeze if a person is willing to lend the investment in question;
  2. (2) the extent to which the person's activity causes, or risks causing, settlement default by other market users on a multilateral basis and not just a bilateral basis. The more widespread the risk of multilateral settlement default, the more likely that an abusive squeeze has been effected;
  3. (3) the extent to which prices under the delivery mechanisms of the market diverge from the prices for delivery of the investment or its equivalent outside those mechanisms. The greater the divergence beyond that to be reasonably expected, the more likely that an abusive squeeze has been effected; and
  4. (4) the extent to which the spot or immediate market compared to the forward market is unusually expensive or inexpensive or the extent to which borrowing rates are unusually expensive or inexpensive.

MAR 1.6.12

handbook-guidance
Squeezes occur relatively frequently when the proper interaction of supply and demand leads to market tightness, but this is not of itself abusive. In addition, having a significant influence over the supply of, or demand for, or delivery mechanisms for an investment, for example, through ownership, borrowing or reserving the investment in question, is not of itself abusive.

MAR 1.6.13

handbook-guidance
The effects of an abusive squeeze are likely to be influenced by the extent to which other market users have failed to protect their own interests or fulfil their obligations in a manner consistent with the standards of behaviour to be expected of them in that market. Market users can be expected to settle their obligations and not to put themselves in a position where, to do so, they have to rely on holders of long positions lending when they may not be inclined to do so and may be under no obligation to do so.

Descriptions of behaviour that do not amount to market abuse (manipulating transactions): accepted market practices

MAR 1.6.14

handbook-evidential-provisions
The following are accepted by the FSA as accepted market practices for the purposes of market abuse (manipulating transactions):
  1. (1) The metal market aberrations regime (see MAR 1 Annex 2 G).

Examples of market abuse (manipulating transactions)

MAR 1.6.15

handbook-evidential-provisions
The following are examples of behaviour that may amount to market abuse (manipulating transactions):
  1. (1) a trader simultaneously buys and sells the same qualifying investment (that is, trades with himself) to give the appearance of a legitimate transfer of title or risk (or both) at a price outside the normal trading range for the qualifying investment. The price of the qualifying investment is relevant to the calculation of the settlement value of an option. He does this while holding a position in the option. His purpose is to position the price of the qualifying investment at a false, misleading, abnormal or artificial level, making him a profit or avoiding a loss from the option;
  2. (2) a trader buys a large volume of commodity futures, which are qualifying investments, (whose price will be relevant to the calculation of the settlement value of a derivatives position he holds) just before the close of trading. His purpose is to position the price of the commodity futures at a false, misleading, abnormal or artificial level so as to make a profit from his derivatives position;
  3. (3) a trader holds a short position that will show a profit if a particular qualifying investment, which is currently a component of an index, falls out of that index. The question of whether the qualifying investment will fall out of the index depends on the closing price of the qualifying investment. He places a large sell order in this qualifying investment just before the close of trading. His purpose is to position the price of the qualifying investment at a false, misleading, abnormal or artificial level so that the qualifying investment will drop out of the index so as to make a profit; and
  4. (4) a fund manager's quarterly performance will improve if the valuation of his portfolio at the end of the quarter in question is higher rather than lower. He places a large order to buy relatively illiquid shares, which are also components of his portfolio, to be executed at or just before the close. His purpose is to position the price of the shares at a false, misleading, abnormal or artificial level.

MAR 1.6.16

handbook-evidential-provisions
The following is an example of an abusive squeeze:

  1. A trader with a long position in bond futures buys or borrows a large amount of the cheapest to deliver bonds and either refuses to re-lend these bonds or will only lend them to parties he believes will not re-lend to the market. His purpose is to position the price at which those with short positions have to deliver to satisfy their obligations at a materially higher level, making him a profit from his original position.

MAR 1.7

Market abuse (manipulating devices)

MAR 1.7.1

handbook-uk-text

Table: section 118(6) of the Act

Descriptions of behaviour that amount to market abuse (manipulating devices)

MAR 1.7.2

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA, market abuse (manipulating devices):
  1. (1) taking advantage of occasional or regular access to the traditional or electronic media by voicing an opinion about a qualifying investment (or indirectly about its issuer) while having previously taken positions on that qualifying investment and profiting subsequently from the impact of the 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; [Note: Article 1.2 Market Abuse Directive]
  2. (2) a transaction or series of transactions that are designed to conceal the ownership of a qualifying investment, so that disclosure requirements are circumvented by the holding of the qualifying investment in the name of a colluding party, such that disclosures are misleading in respect of the true underlying holding. These transactions are often structured so that market risk remains with the seller. This does not include nominee holdings;
  3. (3) pump and dump - that is, taking a long position in a qualifying investment and then disseminating misleading positive information about the qualifying investment with a view to increasing its price;
  4. (4) trash and cash - that is, taking a short position in a qualifying investment and then disseminating misleading negative information about the qualifying investment, with a view to driving down its price.

Factors to be taken into account in determining whether or not behaviour amounts to market abuse (manipulating devices)

MAR 1.7.3

handbook-evidential-provisions
In the opinion of the FSA , the following factors are to be taken into account in determining whether or not a fictitious device or other form of deception or contrivance has been used, and are indications that it has:
  1. (1) if orders to trade given or transactions undertaken in qualifying investments by persons are preceded or followed by dissemination of false or misleading information by the same persons or persons linked to them;
  2. (2) if orders to trade are given or transactions are undertaken in qualifying investments by persons before or after the same persons or persons linked to them produce or disseminate research or investment recommendations which are erroneous or biased or demonstrably influenced by material interest. [Note: Article 5 2003/124/EC]

MAR 1.8

Market abuse (dissemination)

MAR 1.8.1

handbook-uk-text

Table: section 118(7) of the Act

MAR 1.8.2

handbook-uk-text

Table: section 118A(4) of the Act

Descriptions of behaviour that amount to market abuse (dissemination)

MAR 1.8.3

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA , market abuse (dissemination):
(1) knowingly or recklessly spreading false or misleading information about a qualifying investment through the media, including in particular through an RIS or similar information channel;
(2) undertaking a course of conduct in order to give a false or misleading impression about a qualifying investment.

Factors to be taken into account in determining whether or not behaviour amounts to market abuse (dissemination)

MAR 1.8.4

handbook-evidential-provisions
In the opinion of the FSA, if a normal and reasonable person would know or should have known in all the circumstances that the information was false or misleading, that indicates that the person disseminating the information knew or could reasonably be expected to have known that it was false or misleading.

MAR 1.8.5

handbook-evidential-provisions
In the opinion of the FSA, if the individuals responsible for dissemination of information within an organisation could only know that the information was false or misleading if they had access to other information that was being held behind a Chinese wall or similarly effective arrangements, that indicates that the person disseminating did not know and could not reasonably be expected to have known that the information was false or misleading.

Examples of market abuse (dissemination)

MAR 1.8.6

handbook-evidential-provisions
The following are examples of behaviour which may amount to market abuse (dissemination):
  1. (1) a person posts information on an Internet bulletin board or chat room which contains false or misleading statements about the takeover of a company whose shares are qualifying investments and the person knows that the information is false or misleading;
  2. (2) a person responsible for the content of information submitted to a regulatory information service submits information which is false or misleading as to qualifying investments and that person is reckless as to whether the information is false or misleading.

MAR 1.9

Market abuse (misleading behaviour) & market abuse (distortion)

MAR 1.9.1

handbook-evidential-provisions

Table: section 118(8) of the Act:

Descriptions of behaviour that amount to market abuse (misleading behaviour) under section 118(8)(a) or market abuse (distortion) under section 118(8)(b)

MAR 1.9.2

handbook-evidential-provisions
The following behaviours are, in the opinion of the FSA, market abuse (misleading behaviour) if they give, or are likely to give, a regular user of the market a false or misleading impression:
  1. (1) the movement of physical commodity stocks, which might create a misleading impression as to the supply of, or demand for, or price or value of, a commodity or the deliverable into a commodity futures contract; and
  2. (2) the movement of an empty cargo ship, which might create a false or misleading impression as to the supply of, or the demand for, or the price or value of a commodity or the deliverable into a commodity futures contract.

Descriptions of behaviour that does not amount to market abuse (distortion)

MAR 1.9.3

handbook-conduct
Behaviour that complies with the requirements imposed on long position holders in the metal market aberrations regime will not amount to market abuse (distortion).

Factors to be taken into account: false or misleading impressions

MAR 1.9.4

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not behaviour is likely to give a regular user a false or misleading impression as to the supply of or the demand for or as to the price or value of one or more qualifying investments or related investments:
  1. (1) the experience and knowledge of the users of the market in question;
  2. (2) the structure of the market, including its reporting, notification and transparency requirements;
  3. (3) the legal and regulatory requirements of the market concerned;
  4. (4) the identity and position of the person responsible for the behaviour which has been observed (if known); and
  5. (5) the extent and nature of the visibility or disclosure of the person's activity.

Factors to be taken into account: standards of behaviour

MAR 1.9.5

handbook-evidential-provisions
In the opinion of the FSA, the following factors are to be taken into account in determining whether or not behaviour that creates a false or misleading impression as to, or distorts the market for, a qualifying investment, has also failed to meet the standard expected by a regular user:
  1. (1) if the transaction is pursuant to a prior legal or regulatory obligation owed to a third party;
  2. (2) if the transaction is executed in a way which takes into account the need for the market as a whole to operate fairly and efficiently; or
  3. (3) the characteristics of the market in question, including the users and applicable rules and codes of conduct (including, if relevant, any statutory or regulatory obligation to disclose a holding or position, such as under DTR 5;
  4. (4) the position of the person in question and the standards reasonably to be expected of him in light of his experience, skill and knowledge;
  5. (5) if the transaction complied with the rules of the relevant prescribed markets about how transactions are to be executed in a proper way (for example, rules on reporting and executing cross-transactions); and
  6. (6) if an organisation has created a false or misleading impression, whether the individuals responsible could only know they were likely to create a false or misleading impression if they had access to other information that was being held behind a Chinese wall or similarly effective arrangements.

MAR 1.10

Statutory exceptions

Behaviour that does not amount to market abuse (general): buy-back programmes and stabilisation

MAR 1.10.1

handbook-guidance
  1. (1) Behaviour which conforms with articles 3 to 6 of the Buy-back and Stabilisation Regulation (see MAR 1 Annex 1) will not amount to market abuse.
  2. (2) See MAR 2 in relation to stabilisation.
  3. (3) Buy-back programmes which are not within the scope of the Buy-back and Stabilisation Regulation are not, in themselves, market abuse.

FSA rules

MAR 1.10.2

handbook-guidance

There are no rules which permit or require a person to behave in a way which amounts to market abuse. Some rules contain a provision to the effect that behaviour conforming with that rule does not amount to market abuse:

  1. (1) the control of information rule (SYSC 10.2.2 R (1) (see SYSC 10.2.2 R (4))); and
  2. (2) those parts of the Part 6 rules which relate to the timing, dissemination or availability, content and standard of care applicable to a disclosure, announcement, communication or release of information (see in particular the Disclosure Rules and Transparency Rules).

Takeover Code

MAR 1.10.3

handbook-guidance
There are no rules in the Takeover Code, which permit or require a person to behave in a way which amounts to market abuse.

MAR 1.10.4

handbook-conduct
Behaviour conforming with any of the rules of the Takeover Code about the timing, dissemination or availability, content and standard of care applicable to a disclosure, announcement, communication or release of information, does not, of itself, amount to market abuse, if:
  1. (1) the rule is one of those specified in the table in MAR 1.10.5 C;
  2. (2) the behaviour is expressly required or expressly permitted by the rule in question (the notes for the time being associated with the rules identified in the Takeover Code are treated as part of the relevant rule for these purposes); and
  3. (3) it conforms to any General Principle set out at Section B of the Takeover Code relevant to that rule.

MAR 1.10.5

handbook-conduct

Table: Provisions of the Takeover Code conformity with which will not, of itself, amount to market abuse (This table belongs to MAR 1.10.4C):

MAR 1.10.6

handbook-conduct
Behaviour conforming with Rule 4.2 of the Takeover Code (in relation to restrictions on dealings by offerors and concert parties) does not, of itself, amount to market abuse, if:
  1. (1) the behaviour is expressly required or expressly permitted by that rule (the notes for the time being associated with the rules identified in the Takeover Code are treated as part of the rule for these purposes); and
  2. (2) it conforms to any General Principle set out at Section B of the Takeover Code relevant to the rule.
  • 01/07/2005

MAR 1 Annex 1

Provisions of the Buy-back and Stabilisation Regulation relating to buy-back programmes

  • 01/12/2004

MAR 1 Annex 1.1

MAR 1 Annex 2

Accepted Market Practices

handbook-guidance

Export chapter as

MAR 2

Stabilisation

MAR 2.1

Application and Purpose

Application

MAR 2.1.1

handbook-rule
This chapter applies to every firm.

MAR 2.1.2

handbook-guidance
This chapter is available to every person who wishes to show that he acted in conformity with:
(1) the Buy-back and Stabilisation Regulation, in accordance with section 118A(5)(b) of the Act; or
(2) rules, in accordance with section 118A(5)(a) of the Act; or
(3) the price stabilising rules, for the purposes of paragraph 5(1) of Schedule 1 to the Criminal Justice Act 1993 (Insider Dealing); or
(4) the price stabilising rules, for the purposes of section 397(4) or (5)(b) of the Act (Misleading statements and practices).

MAR 2.1.3

handbook-rule

This chapter:

  1. (1) so far as it provides a defence for any person, has the same territorial application as the provision which is alleged to have been contravened: and
  2. (2) in its application to a firm for purposes other than those falling within (1), applies to the firm's business carried on from an establishment in the United Kingdom.

Purpose

MAR 2.1.4

handbook-guidance
The purpose of this chapter is to describe the extent to which stabilisation activity has the benefit of a "safe harbour" for market abuse under the Buy-back and Stabilisation Regulation (see MAR 2.2 and MAR 2.3), and to specify by rules the extent to which stabilisation activity has the benefit of a "safe harbour" for market abuse (misuse of information), market abuse (misleading behaviour) or market abuse (distortion) (see MAR 2.2 and MAR 2.4), or for the criminal offences referred to in MAR 2.1.2 G (3) and MAR 2.1.2 G (4) (MAR 2.3 - MAR 2.5).

MAR 2.1.5

handbook-guidance
Stabilisation transactions mainly have the effect of providing support for the price of an offering of relevant securities during a limited time period if they come under selling pressure, thus alleviating sales pressure generated by short term investors and maintaining an orderly market in the relevant securities. This is in the interest of those investors having subscribed or purchased those relevant securities in the context of a significant distribution, and of issuers. In this way, stabilisation can contribute to greater confidence of investors and issuers in the financial markets. [Note: Recital 11 of the Buy-back and Stabilisation Regulation]

MAR 2.1.6

handbook-guidance
Stabilisation activity may be carried out either on or off a regulated market and may be carried out by use of financial instruments other than those admitted or to be admitted to the regulated market which may influence the price of the instrument admitted or to be admitted to trading on a regulated market. [Note: Recital 12 Buy-back and Stabilisation Regulation]

MAR 2.2

Stabilisation: general

Permitted stabilisation

MAR 2.2.1

handbook-rule
Stabilisation or ancillary stabilisation may be carried out by a firm in relation to a significant distribution of securities, if:
(1) they are relevant securities that have been admitted to trading on a regulated market or a request for their admission to trading on such a market has been made, and the stabilisation is carried out in accordance with the Buy-back and Stabilisation Regulation (see MAR 2.3); or
(2) the securities are not within (1) and they:
(a) have been admitted to trading on a market, exchange or other institution included in MAR 2 Annex 1 R; or
(b) a request for their admission to trading on such a market, exchange or institution has been made; or
(c) are or may be traded under the rules of the International Securities Markets Association; and
the stabilisation or ancillary stabilisation is carried out in accordance with the provisions in MAR 2.4.

MAR 2.2.2

handbook-guidance
Relevant securities include financial instruments that become fungible after an initial period because they are substantially the same, although they have different initial dividend or interest payment rights. [Note: Recital 13 Buy-back and Stabilisation Regulation.]

Scope of stabilisation "safe harbours" for market abuse

MAR 2.2.3

handbook-rule
For the purposes of section 118A(5)(a) of the Act, behaviour (whether by a firm or not) conforming with the MAR 2.2.1R (2) does not amount to market abuse.

MAR 2.2.4

handbook-guidance
The effect of article 8 of the Market Abuse Directive and section 118A(5)(b) of the Act is that behaviour by any person which conforms with the stabilisation provisions in the Buy-back and Stabilisation Regulation (see MAR 2.3) will not amount to market abuse.

MAR 2.2.5

handbook-guidance
However, the mere fact that stabilisation does not conform with the stabilisation provisions in the Buy-back and Stabilisation Regulation (see MAR 2.3) or with) MAR 2.2.1R (2) will not of itself mean that the behaviour constitutes market abuse. [Note: Recital 2 Buy-back and Stabilisation Regulation]
  • 01/07/2005

Block trades

MAR 2.2.6

handbook-guidance
In relation to stabilisation, block trades are not considered as a significant distribution of relevant securities as they are strictly private transactions. [Note: Recital 14 Buy-back and Stabilisation Regulation]
  • 01/07/2005

Behaviour not related to stabilisation

MAR 2.2.7

handbook-guidance
On the other hand, the exemptions created by the Buy-back and Stabilisation Regulation only cover behaviour directly related to the purpose of stabilisation activities. Behaviour which is not directly related to the purpose of stabilisation activities is therefore considered in the same way as any other action covered by the Market Abuse Directive and may result in sanctions, if the competent authority establishes that the action in question constitutes market abuse. [Note: Recital 3 Buy-back and Stabilisation Regulation]
  • 01/07/2005

MAR 2.2.8

handbook-guidance
In order to avoid confusion of market participants, stabilisation activity should be carried out by taking into account the market conditions and the offering price of the relevant security and transactions to liquidate positions established as a result of stabilisation activity should be undertaken to minimise market impact having due regard to prevailing market conditions. [Note: Recital 18 Buy-back and Stabilisation Regulation]
  • 01/07/2005

Rights of action for damages

MAR 2.2.9

handbook-rule
A contravention of the rules in MAR 2 does not give rise to a right of action by a private person under section 150 of the Act (and each of those rules is specified under section 150(2) of the Act as a provision giving rise to no such right of action).
  • 01/07/2005

MAR 2.3

Stabilisation under the Buy-back and Stabilisation Regulation

Conditions for stabilisation: general

MAR 2.3.1

handbook-eu-text

Table: Article 7 of the Buy-back and Stabilisation Regulation

MAR 2.3.2

handbook-guidance
Article 8 of the Market Abuse Directive is implemented in the United Kingdom in section 118A(5)(b) of the Act.

MAR 2.3.3

handbook-rule
For the purposes of article 2(8) of the Buy-back and Stabilisation Regulation the standards of transparency of the markets, exchanges and institutions referred to in MAR 2.2.1R (2) are considered by the FSA to be adequate.

Time related conditions for stabilisation

MAR 2.3.4

handbook-eu-text

Table: Article 8 of the Buy-back and Stabilisation Regulation

Disclosure and reporting conditions for stabilisation

MAR 2.3.5

handbook-eu-text

Table: Article 9 of the Buy-back and Stabilisation Regulation

MAR 2.3.6

handbook-guidance
The FSA accepts as adequate public disclosure:
(1) disclosure through a regulatory information service or otherwise in accordance with Part 6 rules; or
(2) the equivalent disclosure mechanism required to be used in relation to the relevant regulated market.

MAR 2.3.7

handbook-guidance
Market integrity requires the adequate public disclosure of stabilisation activity by issuers or by entities undertaking stabilisation, acting or not on behalf of these issuers. Methods used for adequate public disclosure of such information should be efficient and can take into account market practices accepted by competent authorities. [Note: Recital 16 Buy-back and Stabilisation Regulation]

MAR 2.3.8

handbook-guidance
There should be adequate coordination in place between all investment firms and credit institutions undertaking stabilisation. During stabilisation, one investment firm or credit institution shall act as a central point of inquiry for any regulatory intervention by the competent authority in each Member State concerned. [Note: Recital 17 Buy-back and Stabilisation Regulation]

MAR 2.3.9

handbook-guidance
For the purposes of article 9(2) of the Buy-back and Stabilisation Regulation, the FSA is the competent authority of those markets listed as regulated markets at http://www.fsa.gov.uk/register/exchanges.do. Persons undertaking stabilisation will be taken to have notified the FSA for the purposes of article 9(2) if they email details of all their stabilisation transactions to stabilisation@fsa.gov.uk clearly identifying the offer being stabilised and the contact details for the persons undertaking the stabilisation.

Specific price conditions

MAR 2.3.10

handbook-eu-text
Table: Article 10 of the Buy-back and Stabilisation Regulation

Conditions for ancillary stabilisation

MAR 2.3.11

handbook-eu-text
Table: Article 11 of the Buy-back and Stabilisation Regulation

MAR 2.3.12

handbook-guidance
Overallotment facilities and greenshoe options are closely related to stabilisation, by providing resources and hedging for stabilisation activity. [Note: Recital 19 Buy-back and Stabilisation Regulation]
  • 01/07/2005

MAR 2.3.13

handbook-guidance
Particular attention should be paid to the exercise of an overallotment facility by an investment firm or a credit institution for the purpose of stabilisation when it results in a position uncovered by the greenshoe option. [Note: Recital 20 Buy-back and Stabilisation Regulation.]
  • 01/07/2005

MAR 2.4

Stabilisation when the Buy-back and Stabilisation Regulation does not apply

MAR 2.4.1

handbook-rule
To comply with MAR 2.2.1R (2) a firm must comply with the provisions in articles 8, 9, 10 and 11 of the Buy-back and Stabilisation Regulation (see MAR 2.3) subject to the modifications set out in the remainder of this section.

MAR 2.4.2

handbook-rule
For the purposes of the application of article 2(6) of the Buy-back and Stabilisation Regulation to this section, references to "relevant securities" are to be taken as references to securities which are within MAR 2.2.1R (2).

MAR 2.4.3

handbook-rule
For the purposes of the application of article 2(8) of the Buy-back and Stabilisation Regulation to this section, the requirement for the competent authority to agree to the standards of transparency does not apply.

MAR 2.4.4

handbook-rule
Article 8 of the Buy-back and Stabilisation Regulation is subject to the following modifications:
(1) the references to "adequate public disclosure" are to be taken as including any public announcement which provides adequate disclosure of the fact that stabilisation may take place in relation to the offer, for example:
(a) in the case of a screen-based announcement, wording such as "stabilisation/FSA"; or
(b) in the case of a final offering circular or prospectus, wording such as "In connection with this [issue][offer], [name of stabilisation manager] [or any person acting for him] may over-allot or effect transactions with a view to supporting the market price of [description of relevant securities and any associated investments] at a level higher than that which might otherwise prevail for a limited period after the issue date. However, there may be no obligation on [name of stabilisation manager] [or any agent of his] to do this. Such stabilising, if commenced, may be discontinued at any time, and must be brought to an end after a limited period."; and
(2) a person is taken to comply the requirements of article 9(1) of the Buy-back and Stabilisation Regulation for these purposes if a public announcement before the opening of the offer period indicates (in whatever terms) the fact that stabilisation may take place so long as any preliminary or final offering circular (or prospectus) contains the information specified in that article (other than information on the maximum size of any overallotment facility).

MAR 2.4.5

handbook-rule
Article 9 of the Buy-back and Stabilisation Regulation is subject to the following modifications:
(1) the references to "adequate public disclosure" are to be taken as including any public announcement which complies with MAR 2.4.4 R;
(2) article 9(2) does not apply;
(3) article 9(3) does not apply; and
(4) in article 9(4) the phrase "order or" does not apply.

MAR 2.4.6

handbook-rule
Article 10 of the Buy-back and Stabilisation Regulation is modified so that the reference to "public disclosure" is to be taken as including any public announcement which complies with MAR 2.4.4 R.

MAR 2.4.7

handbook-rule
Article 11 of the Buy-back and Stabilisation Regulation is subject to the following modifications:
(1) the reference to "disclosure to the public" is to be taken as including any public announcement which complies with MAR 2.4.4 R and
(2) article 11(b) and (d) do not apply.
  • 01/07/2005

MAR 2.5

The Price Stabilising Rules: overseas provisions

MAR 2.5.1

handbook-rule
(1) A person who in any place outside the United Kingdom acts or engages in conduct:
(a) for the purposes of stabilising the price of investments;
(b) in conformity with the provisions specified in (2), (3) or (4); and
(c) in relation to an offer which is governed by the law of a country (or a state or territory in a country) so specified;
is to be treated for the purposes of section 397(5)(b) of the Act (misleading statements and practices) as acting or engaging in conduct for that purpose and in conformity with the price stabilising rules.
(2) In relation to the United States of America, the specified provisions are:
(a) Regulation M made by the Securities and Exchange Commission (17 CFR 242, # 100-105).
(3) In relation to Japan, the specified provisions are
(a) The Securities and Exchange Law of Japan, (Law No 25, April 13 1948), Article 159, paragraphs 3 and 4;
(b) Cabinet Orders for the Enforcement of the Securities and Exchange Law of Japan (Cabinet Order 321, September 30, 1965), Articles 20 to 26;
(c) Ministerial Ordinance concerning the Registration of Stabilisation Trading (Ordinance of the Ministry of Finance No 43, June 14, 1971);
(d) Ministerial Ordinance concerning rules and otherwise governing the soundness of securities companies (Ordinance of the Ministry of Finance, No 60, November 5, 1965), Article 2.
(4) In relation to Hong Kong, the specified provisions are:
(a) The Securities and Futures (Price Stabilizing) Rules, Cap. 571 W made by the Hong Kong Securities and Futures Commission.
(5) The provisions in (2), (3) and (4) are specified as they have effect from time to time, so long as this paragraph has effect.

MAR 2.5.2

handbook-rule
A person who is treated under MAR 2.5.1R (1) as acting or engaging in conduct in conformity with the price stabilising rules is also to be treated to an equivalent extent as so acting or engaging for the purposes of:
(1) MAR 2.2.1R (2) and MAR 2.2.2 G, provided that the investments concerned are not admitted to trading on a regulated market and there has been no request for admission to trading on a regulated market;
(2) Part XIV (Disciplinary measures); and
(3) Part XXV (Injunctions and Restitution) of the Act.

MAR 2 Annex 1

List of specified exchanges (This is the list of other specified exchanges referred to in MAR 2.2.1R(2))

MAR 2 Annex 1

handbook-rule

Export chapter as

MAR 4

Endorsement of the Takeover Code

MAR 4.1

APPLICATION AND PURPOSE

  • 01/12/2004

Application

MAR 4.1.1

handbook-rule
This chapter applies to every firm whose permission includes, or ought to include, any designated investment business, except as set out in MAR 4.4.1 R.
  • 20/09/2001

MAR 4.1.2

handbook-guidance
MAR 4.1.1 R applies regardless of whether the firm's activity:
(1) is a regulated activity;
(2) is carried on from an office of the firm in the United Kingdom; or
(3) is in respect of a client in the United Kingdom.
  • 20/09/2001

Purpose

MAR 4.3

SUPPORT OF THE TAKEOVER PANEL'S FUNCTIONS

MAR 4.3.1

handbook-rule
A firm must not act, or continue to act, for any person in connection with a transaction to which the Takeover Code applies (including a transaction subject to rule 8 (Disclosure of dealings during the offer period; also indemnity and other arrangements) of the Takeover Code) if the firm has reasonable grounds for believing that the person in question, or his principal, is not complying or is not likely to comply with the Takeover Code.

MAR 4.3.2

handbook-guidance
(1) The Takeover Panel publishes notices regarding compliance with the Takeover Code. It may also, from time to time, name in those notices persons as persons that, in the Takeover Panel's opinion, are not likely to comply with the Takeover Code. Any notices of this type will be available on the Takeover Panel's website (www.thetakeoverpanel.org.uk).
(2) A firm should keep itself informed of Takeover Panel notices and take them into account in seeking to comply with MAR 4.3.1 R. If the Takeover Panel were to name such a person in such a notice, the FSA would expect a firm to comply with MAR 4.3.1 R by not acting or continuing to act for that person.
(3) The FSA would not regard a firm as in breach of MAR 4.3.1 R where the Takeover Panel has indicated that it is content for the firm to act in relation to that transaction.

MAR 4.3.3

handbook-guidance
(1) Where a restriction under MAR 4.3.1 R applies, among other things the firm is prevented from carrying on any designated investment business activity, or communicating or approving any financial promotion, in connection with a transaction to which the Takeover Codeapplies.
(2) Where a restriction under MAR 4.3.1 R applies, the firm is not prevented from carrying on other activities (including regulated activities) in relation to that person. This includes designated investment business activity which is not in connection with a transaction to which the Takeover Codeapplies.

MAR 4.3.4

handbook-guidance
(1) Where a restriction under MAR 4.3.1 R applies, an authorised professional firm is not prevented from providing professional advice or representation in any proceedings to the person where that falls within section 327(8) of the Act. This means that the person can obtain legal advice or representation in any proceedings from a law firm and accounting advice from an accounting firm: see MAR 4.4.1 R (2).
(2) While the FSA recognises the duty of authorised professional firms to act in the best interests of their clients, the duty cannot override the provisions of the Takeover Codeso as to require the authorised professional firm to provide services in breach of, or enable breach of, the Takeover Code.

MAR 4.3.5

handbook-rule
A firm must provide to the Takeover Panel:
(1) any information and documents in its possession or under its control which the Takeover Panel requests to enable the Takeover Panel to perform its functions; and
(2) such assistance as the Takeover Panel requests and as the firm is reasonably able to provide to enable the Takeover Panel to perform its functions.
  • 20/09/2001

MAR 4.3.6

handbook-guidance
In MAR 4.3.5 R, "documents" includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to providing documents include references to producing a copy of the information in legible form.
  • 20/09/2001

MAR 4.3.7

handbook-guidance
As a result of section 413 of the Act (Limitation on powers to require documents), MAR 4.3.5 R does not require a firm or an authorised professional firm to produce, disclose or permit the inspection of protected items.
  • 20/09/2001

MAR 4.4

EXCEPTIONS

  • 01/12/2004

MAR 4.4.1

handbook-rule
This chapter is subject to the following exceptions:
(1) this chapter does not require an authorised professional firm to contravene any rule or principle of, or requirement of a published guidance note relating to, professional conduct applying generally to members of the profession regulated by its designated professional body;
(2) this chapter does not prevent an authorised professional firm from providing professional advice, that is, in accordance with section 327(8) of the Act, advice:
(a) which does not constitute carrying on a regulated activity; and
(b) the provision of which is supervised and regulated by a designated professional body;
(3) this chapter does not have effect in relation to an authorised professional firm in respect of non-mainstream regulated activity; and
(4) this chapter does not apply to:
(a) a UCITS qualifier; or
(b) an incoming EEA firm which has permission only for cross border services and which does not carry on regulated activities in the United Kingdom.
  • 20/09/2001

Export chapter as

MAR 5

Multilateral trading facilities (MTFs)

MAR 5.1

Application

MAR 5.1.1

handbook-rule
This chapter applies to:

MAR 5.1.2

handbook-rule
In this chapter, provisions marked "EU" apply to an overseas firm as if they were rules.

MAR 5.2

Purpose

MAR 5.2.1

handbook-guidance
The purpose of this chapter is to implement the provisions of MiFID relating to firms operating MTFs, specifically articles 14, 26, 29 and 30 of MiFID. This chapter does not apply to bilateral systems, which are excluded from the MTF definition. It sets out for reference other provisions of the MiFID Regulation relevant to the articles being implemented.

MAR 5.3

Trading process requirements

MAR 5.3.1

handbook-rule
A firm operating an MTF must have:
(1) transparent and non-discretionary rules and procedures for fair and orderly trading;

[Note: Article 14(1) of MiFID]
(2) objective criteria for the efficient execution of orders;

[Note: Article 14(1) of MiFID]
(3) transparent rules regarding the criteria for determining the financial instruments that can be traded under its systems;

[Note: Subparagraph 1 of Article 14(2) of MiFID]
(4) transparent rules, based on objective criteria, governing access to its facility, which rules must provide that its members or participants are investment firms, BCD credit institutions or other persons who:
(a) are fit and proper;
(b) have a sufficient level of trading ability and competence;
(c) where applicable, have adequate organisational arrangements;
(d) have sufficient resources for the role they are to perform, taking into account the different financial arrangements that the firm operating the MTF may have established in order to guarantee the adequate settlement of transactions; and


[Note: Article 14(4) and 42(3) of MiFID]
(5) where applicable must provide, or be satisfied that there is access to, sufficient publicly available information to enable its users to form an investment judgment, taking into account both the nature of the users and the types of instrument traded.

[Note: Subparagraph 2 of Article 14(2) of MiFID]

Publication of pre and post-trade information for shares not admitted to trading on a regulated market

MAR 5.3.2

handbook-guidance
In the case of shares not admitted to trading on a regulated market, the FSA expects that in order to fulfil the requirements in MAR 5.3.1 R as regards fair and orderly trading, the firm operating the MTF will make public on reasonable commercial terms:
(1) on a continuous basis during normal trading hours, information about the quotes and orders relating to these shares which the MTF displays or advertises to its users; and
(2) as close to real time as possible, information about the price, volume and time of transactions in these shares executed under its systems.

MAR 5.3.3

handbook-guidance
The firm may make information about a large quote, order or transaction available under MAR 5.3.2 G on a delayed basis, but only to the extent reasonably necessary to protect the interests of the relevant user who placed the order, provided the quote or executed the transaction.

Publication of post-trade information for financial instruments other than shares

MAR 5.3.4

handbook-guidance
Where financial instruments other than shares are traded on an MTF, and the same or substantially similar instruments are also traded on a UK RIE, a regulated market or an EEA commodities market, the FSA expects that in order to fulfil the requirements in MAR 5.3.1 R as regards fair and orderly trading, the firm operating the MTF will make public, on reasonable commercial terms and as close to real time as possible, the price, volume and time of the transactions executed under its systems.

MAR 5.3.5

handbook-guidance
For large transactions in debt securities, an indication that volume exceeded a certain figure (not being less than £7 million or its equivalent) instead of the actual volume is sufficient transparency of the volume of a trade.
  • 01/11/2007

MAR 5.3.6

handbook-guidance
The firm may make information about a large quote, order or transaction available under MAR 5.3.4 G on a delayed basis, but only to the extent reasonably necessary to protect the interests of the relevant user who placed the order, provided the quote or executed the transaction.
  • 01/11/2007

Operation of a primary market in shares not admitted to trading on a regulated market

MAR 5.3.7

handbook-guidance
The FSA will be minded to impose a variation on the Part IV permission of an MTF operator that operates a primary market in shares not admitted to trading on a regulated market in order to ensure its fulfilment of the requirements in MAR 5.3.1 R as regards fair and orderly trading.
  • 01/11/2007

Transferable securities traded without issuer consent

MAR 5.3.8

handbook-rule
Where a transferable security, which has been admitted to trading on a regulated market, is also traded on an MTF without the consent of the issuer, the firm operating the MTF must not make the issuer subject to any obligation relating to initial, ongoing or ad hoc financial disclosure with regard to that MTF.

[Note: Article 14(6) of MiFID]
  • 01/11/2007

MAR 5.4

Finalisation of transactions

MAR 5.4.1

handbook-rule
A firm operating an MTF must:
(1) clearly inform its users of their respective responsibilities for the settlement of transactions executed in that MTF; and
(2) have in place the arrangements necessary to facilitate the efficient settlement of the transactions concluded under its systems.
[Note: Article 14(5) of MiFID]

MAR 5.5

Monitoring compliance with the rules of the MTF

MAR 5.5.1

handbook-rule
A firm operating an MTF must:
(1) have effective arrangements and procedures, relevant to the MTF, for the regular monitoring of the compliance by its users with its rules; and
(2) monitor the transactions undertaken by its users under its systems in order to identify breaches of those rules, disorderly trading conditions or conduct that may involve market abuse.

[Note: Article 26(1) of MiFID]

MAR 5.6

Reporting requirements

  • 01/11/2007

MAR 5.6.1

handbook-rule
A firm operating an MTF must:
(1) report to the FSA:
(a) significant breaches of the firm's rules;
(b) disorderly trading conditions; and
(c) conduct that may involve market abuse;
(2) supply the information required under this rule without delay to the FSA and any other authority competent for the investigation and prosecution of market abuse; and
(3) provide full assistance to the FSA , and any other authority competent for the investigation and prosecution of market abuse, in its investigation and prosecution of market abuse occurring on or through the firm's systems.


[Note: Article 26(2) of MiFID]
  • 01/11/2007

MAR 5.7

Pre-trade transparency requirements for shares

  • 01/11/2007

MAR 5.7.1

handbook-rule
(1) Unless (2),(3) or (4) applies, in respect of shares admitted to trading on a regulated market, a firm operating an MTF must make public, on reasonable commercial terms and on a continuous basis during normal trading hours:
(a) the current bid and offer prices which are advertised through its systems; and
(b) the depth of trading interests at those prices.
[Note: Article 29(1) of MiFID]
(2) Paragraph (1) does not apply to systems operated by an MTF to the extent that those systems satisfy one of the criteria in (a) or (b), subject to (c):
(a) they must be based on a trading methodology by which the price is determined in accordance with a reference price generated by another system, where that reference price is widely published and is regarded generally by market participants as a reliable reference price;
(b) they formalise negotiated transactions, each of which meets the criteria in (i) and (ii), subject to the provisions in (iii) and (iv):
(i) it is made at or within the current volume weighted spread reflected on the order book or the quotes of the market makers of the MTF operating that system or, where the share is not traded continuously, within a percentage of a suitable reference price, being a percentage and a reference price set in advance by the system operator;
(ii) it is subject to conditions other than the current market price of the share.
(iii) For the purposes of (b), the other conditions specified in the rules of the MTF for a transaction of this kind must also have been fulfilled.
(iv) Negotiated transaction has the meaning given in Article 19 of the MiFID Regulation.


[Note: Article 19 of the MiFID Regulation is reproduced in MAR 5.7.9 EU.]
(c) In the case of systems having functionality other than as described in (a) or (b), the disapplication does not apply to that other functionality.
(3) Paragraph (1) does not apply in relation to orders held in an order management facility maintained by the MTF pending their being disclosed to the market.
(4)
(a) Paragraph (1) does not apply in relation to orders that are large in scale compared to normal market size for the share or type of share in question.
(b) An order will be considered to be large in scale if it meets the criteria set out in Article 20 of the MiFID Regulation.


[Note: Article 20 of the MiFID Regulation is reproduced in MAR 5.7.10 EU.]

Pre-trade information

MAR 5.7.2

handbook-eu-text
  • 01/11/2007

Table 1: Information to be made public in accordance with Article 17

MAR 5.7.3

handbook-eu-text
  • 01/11/2007

Publication of pre-trade information

MAR 5.7.4

handbook-eu-text
  • 01/11/2007

MAR 5.7.5

handbook-eu-text
  • 01/11/2007

Disapplication of the pre-trade transparency requirements

MAR 5.7.6

handbook-guidance
The obligation in MAR 5.7.1 R (1)to make public certain pre-trade information is disapplied in MAR 5.7.1 R (2)based on the market model or the type and size of orders in the cases identified in the MiFID Regulation, and as reproduced for reference in MAR 5.7.8 EU, MAR 5.7.9 EU, MAR 5.7.10 EU and MAR 5.7.11 EU. In particular, the obligation is disapplied in respect of transactions that are large in scale compared with the normal market size for the share or type of share in question.

[Note: Article 29(2) of MiFID and Recital 12 and Articles 18, 19, 20, 33 and 34 of the MiFID Regulation]
  • 01/11/2007

MAR 5.7.7

handbook-eu-text
  • 01/11/2007

MAR 5.7.8

handbook-eu-text

MAR 5.7.9

handbook-eu-text
  • 01/11/2007

MAR 5.7.10

handbook-eu-text
  • 01/11/2007

Table 2: Orders large in scale compared with normal market size

MAR 5.7.11

handbook-eu-text
  • 01/11/2007

MAR 5.7.12

handbook-guidance
The FSA will publish on its website the calculations and estimates for shares admitted to trading on a regulated market, made by the FSA under the provisions in Articles 33 and 34 of the MiFID Regulation.
  • 01/11/2007

MAR 5.8

Provisions common to pre- and post-trade transparency requirements for shares

  • 01/11/2007

MAR 5.8.1

handbook-eu-text
  • 01/11/2007

MAR 5.8.2

handbook-eu-text
  • 01/11/2007

MAR 5.8.3

handbook-guidance
The FSA considers that for the purposes of ensuring that published information is reliable, monitored continuously for errors, and corrected as soon as errors are detected (see MAR 5.8.2 EU(a)), a verification process should be established which does not need to be external from the organisation of the publishing entity, but which should be an independent cross-check of the accuracy of the information generated by the trading process. This process should have the capability to at least identify price and volume anomalies, be systematic and conducted in real-time. The chosen process should be reasonable and proportionate in relation to the business.
  • 01/11/2007

MAR 5.8.4

handbook-guidance
(1) In respect of arrangements facilitating the consolidation of data as required in MAR 5.8.2 EU(b), the FSA considers information as being made public in accordance with MAR 5.8.2 EU(b), if it:
(a) is accessible by automated electronic means in a machine-readable way;
(b) utilises technology that facilitates consolidation of the data and permits commercially viable usage; and
(c) is accompanied by instructions outlining how users can access the information.
(2) The FSA considers that an arrangement fulfils the 'machine-readable' criteria where the data
(a) is in a physical form that is designed to be read by a computer;
(b) is in a location on a computer storage device where that location is known in advance by the party wishing to access the data; and
(c) is in a format that is known in advance by the party wishing to access the data.
(3) The FSA considers that publication on a non-machine-readable website would not meet the MiFID requirements.
(4) The FSA considers that information that is made public in accordance with MAR 5.8.2 EU should conform to a consistent and structured format based on industry standards. Firms operating an MTF can choose the structure that they use.
  • 01/11/2007

MAR 5.9

Post-trade transparency requirements for shares

  • 01/11/2007

MAR 5.9.1

handbook-rule
(1) In respect of shares admitted to trading on a regulated market, unless MAR 5.9.1 R (2) applies and MAR 5.9.7 R is satisfied, a firm operating an MTF must make public, on reasonable commercial terms and as close to real-time as possible, the price, volume and time of the transactions which are advertised through its systems. This requirement does not apply to the details of a transaction executed on an MTF that is made public under the systems of a regulated market.


[Note: Article 30(1) of MiFID]
(2) A firm may defer publication of trade information required in (1) for no longer than the period specified in Table 4 in Annex II of the MiFID Regulation for the class of share and transaction concerned, provided that the following criteria in (a) and (b) are satisfied and subject to the provision in (c):
(a) the transaction is between an investment firmdealing on own account and a client of that firm;
(b) the size of the transaction is equal to or exceeds the relevant minimum qualifying size, as specified in Table 4 in Annex II.
(c) In order to determine the relevant minimum qualifying size for the purposes of point (b), all shares admitted to trading on a regulated market must be classified in accordance with their average daily turnover to be calculated in accordance with Article 33 of the MiFID Regulation.
Note: Table 4 of Annex II of the MiFID Regulation is reproduced in MAR 7 Annex 1 EU.
  • 01/11/2007

MAR 5.9.2

handbook-eu-text
  • 01/11/2007

Post-trade information

MAR 5.9.3

handbook-eu-text
  • 01/11/2007

Publication of post-trade information

MAR 5.9.4

handbook-eu-text
  • 01/11/2007

MAR 5.9.5

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Deferred publication of post-trade information

MAR 5.9.6

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MAR 5.9.6A

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The deferred publication of information, referred to in MAR 5.9.6 EU, is authorised by the FSA , to the extent set out in that provision, and, in particular, is given effect in MAR 5.9.1 R (2).
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MAR 5.9.7

handbook-rule
An MTF must obtain the prior approval of the FSA to proposed arrangements for deferred post-trade publication and must clearly disclose such arrangements to market participants and the investing public.

[Note: Article 30(2) of MiFID]
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Export chapter as

MAR 6

Systematic Internalisers

MAR 6.1

Application

  • 01/11/2007

MAR 6.1.1

handbook-rule
Except as regards the reporting requirement in MAR 6.4.1 R, this chapter applies to:
(1) a MiFID investment firm which is a systematic internaliser in shares when dealing in sizes up to standard market size; or
(2) a third country investment firm which is a systematic internaliser in shares when dealing in the United Kingdom in sizes up to standard market size.
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MAR 6.1.2

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The systematic internaliser reporting requirement in MAR 6.4.1 R applies to an investment firm which is authorised by the FSA .
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MAR 6.1.3

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In this chapter, provisions marked "EU" apply to a third country investment firm which is a systematic internaliser as if they were rules.
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MAR 6.2

Purpose

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MAR 6.2.1

handbook-guidance
The purpose of this chapter is to implement Article 27 of MiFID, which deals with the requirements on systematic internalisers for pre-trade transparency in shares, the execution of orders on behalf of clients and standards and conditions for trading. It also provides a rule requiring investment firms to notify the FSA when they become, or cease to be, a systematic internaliser, and which gives effect to Article 21(4) of the MiFID Regulation. The chapter sets out for reference other provisions of the MiFID Regulation relevant to the articles being implemented.
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MAR 6.3

Criteria for determining whether an investment firm is a systematic internaliser

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MAR 6.3.1

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MAR 6.3.2

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MAR 6.4

Systematic internaliser reporting requirement

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MAR 6.4.1

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An investment firm, which is authorised by the FSA , must promptly notify the FSA in writing of its status as asystematic internaliser in respect of shares admitted to trading on a regulated market:
(1) when it gains that status; or
(2) if it ceases to have that status.
[Note: Article 21(4) of the MiFID Regulation]
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MAR 6.4.2

handbook-guidance
The notification under MAR 6.4.1 R can be addressed to the firm's usual supervisory contact at the FSA .
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MAR 6.5

Obligations on systematic internalisers in shares to make public firm quotes

  • 01/11/2007

MAR 6.5.1

handbook-rule
A systematic internaliser in shares when dealing in sizes up to standard market size must publish a firm quote in relation to any share admitted to trading on a regulated market for which it is:
(1) a systematic internaliser in that share; and
(2) there is a liquid market for that share.
[Note: Subparagraphs 1 and 2 of Article 27(1) of MiFID]
  • 01/11/2007

MAR 6.5.2

handbook-rule
Where there is no liquid market for a share, the systematic internaliser must disclose quotes to its clients on request.

[Note: Subparagraph 1 of Article 27(1) of MiFID]
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MAR 6.5.3

handbook-rule
A systematic internaliser may:
(1) update a quote at any time; and
(2) under exceptional market conditions, withdraw a quote.
[Note: Subparagraph 1 of Article 27(3) of MiFID]
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MAR 6.6

Size and content of quotes

  • 01/11/2007

MAR 6.6.1

handbook-rule
(1) A systematic internaliser may decide the size or sizes at which it will quote.
(2) The quote can be up to standard market size for the class of shares to which the share belongs.


[Note: Subparagraph 3 of Article 27(1) of MiFID]
  • 01/11/2007

MAR 6.6.2

handbook-rule
Each quote must include:
(1) a firm bid price; or
(2) a firm offer price;
in respect of each size for which the systematic internaliser quotes.

[Note: Subparagraph 3 of Article 27(1) of MiFID]
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MAR 6.6.3

handbook-guidance
A systematic internaliser is not obliged to publish firm quotes in relation to transactions above standard market size.[Note: Recital 51 to MiFID]
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MAR 6.7

Prices reflecting prevailing market conditions

  • 01/11/2007

MAR 6.7.1

handbook-rule
A firm bid or offer price in respect of a particular share must reflect the prevailing market conditions for that share.

[Note: Subparagraph 3 of Article 27(1) of MiFID]
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MAR 6.7.2

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MAR 6.8

Liquid market for shares, share class, standard market size and relevant market

  • 01/11/2007

MAR 6.8.1

handbook-guidance
A systematic internaliser will need to refer to the provisions in MAR 6.8.3 EU, MAR 6.8.4 EU, MAR 6.8.5 EU, MAR 6.8.6 EU and MAR 6.8.7 EU and the material the FSA publishes in relation to those provisions to determine:
(1) whether there is a liquid market for a share;
(2) the class to which a share should be allocated;
(3) the standard market size for each class of shares; and
(4) the relevant market for a share.
[Note: Article 27(1), (2) and (7) of MiFID]
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MAR 6.8.2

handbook-guidance
The FSA will publish on its website the material referred to in MAR 6.8.1 G as regards liquid market for shares, share class, standard market size and the relevant market for a share.
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MAR 6.8.3

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MAR 6.8.4

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MAR 6.8.5

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MAR 6.8.6

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MAR 6.8.7

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Table 3: Standard market sizes

  • 01/11/2007

MAR 6.8.8

handbook-guidance
The FSA will publish on its website a link to the calculations and estimates for shares admitted to trading on a regulated market, made by the FSA under the provisions in Articles 33 and 34 of the MiFID Regulation.
  • 01/11/2007

MAR 6.9

Publication of quotes

  • 01/11/2007

MAR 6.9.1

handbook-rule
Where a publication obligation arises under MAR 6.5.1 R, a systematic internaliser must make its quotes public:
(1) on a regular and continuous basis during normal trading hours; and
(2) in a manner which is easily accessible to other market participants on a reasonable commercial basis.
[Note: Subparagraphs 1 and 2 of Article 27(3) of MiFID]
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MAR 6.9.2

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MAR 6.9.3

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MAR 6.9.4

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MAR 6.9.5

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MAR 6.9.6

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For the purposes of ensuring that published information is reliable, monitored continuously for errors, and corrected as soon as errors are detected (see MAR 6.9.5 EU(a)), and in respect of arrangements facilitating the consolidation of data as required in MAR 6.9.5 EU(b), the guidance in MAR 5.8.3 G and MAR 5.8.4 G applies equally to firms falling within this chapter, and should be read as if references to provisions and types of firm in MAR 5 were references to the corresponding provisions and types of firm in this chapter.
  • 01/11/2007

MAR 6.10

Execution price of retail client orders

  • 01/11/2007

MAR 6.10.1

handbook-rule
A systematic internaliser must, while complying with the obligation to execute orders on terms most favourable to the client set out in COBS 12.2, execute an order up to standard market size received from a retail client in relation to shares for which it is a systematic internaliser:
(1) at the price quoted at the time of the reception of the order; or
(2) if the order does not match the quotation size or sizes, in compliance with the execution price rules in MAR 6.12.1 R or MAR 6.12.2 R.
[Note: Subparagraphs 3 and 6 of Article 27(3) of MiFID]

MAR 6.11

Execution price of professional client orders

  • 01/11/2007

MAR 6.11.1

handbook-rule
A systematic internaliser may execute an order up to standard market size received from a professional client in relation to shares for which it is a systematic internaliser:
(1) at the price quoted at the time of the reception of the order; or
(2) at a better price for the professional client where:
(a) this price falls within a published range close to market conditions; and
(b) the order is of a size bigger than the size customarily undertaken by a retail investor; or
(3) at a different price which benefits the professional client where:
(a) execution in several securities is part of one transaction; or
(b) the order is subject to conditions other than the current market price.
[Note: Subparagraphs 4 and 5 of Article 27(3) of MiFID]
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MAR 6.11.2

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MAR 6.11.3

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MAR 6.12

Execution price of client orders not matching quotation sizes

  • 01/11/2007

MAR 6.12.1

handbook-rule
Where a systematic internaliser quotes:
(1) in only one quote in a share; or
(2) its highest quote is lower than the standard market size for the class of shares to which the share belongs;
and it receives a client order that is bigger than the quotation size, but lower than the standard market size, the order may be executed, but that part of the order which exceeds the quotation size must either be executed at the quoted price or, if it is a professional client order, as permitted under the execution price provisions in MAR 6.11.1 R.

[Note: Subparagraph 6 of Article 27(3) of MiFID]
  • 01/11/2007

MAR 6.12.2

handbook-rule
Where a systematic internaliser quotes in different sizes and it receives a client order between those sizes, the order may be executed:
(1) at one of the quoted prices in compliance with the client order handling rules set out in COBS 12.3, COBS 12.4.1R and COBS 12.4.5R; or
(2) if it is a professional client order, as permitted under the execution price provisions in MAR 6.11.1 R.
[Note: Subparagraph 6 of Article 27(3) of MiFID]

MAR 6.13

Standards and conditions for trading

  • 01/11/2007

MAR 6.13.1

handbook-rule
A systematic internaliser must have clear standards which set out and govern the basis on which it will decide which investors are given access to its quotes. The standards must operate:
(1) in an objective, non-discriminatory way within the categories of retail and professional clients; and
(2) on the basis of its commercial policy, including considerations such as:
(a) investor credit status;
(b) counterparty risk; and
(c) final settlement of the transaction;
and a systematic internaliser may refuse to enter into or discontinue business relationships with investors on this policy basis.
[Note: Recital 50 and Article 27(5) of MiFID]
  • 01/11/2007

MAR 6.13.2

handbook-guidance
Systematic internalisers might decide to give access to their quotes only to retail clients, only to professional clients, or to both. They should not be allowed to discriminate within those categories of clients.

[Note: Recital 50 to MiFID]
  • 01/11/2007

MAR 6.14

Limiting risk of exposure to multiple transactions

  • 01/11/2007

MAR 6.14.1

handbook-rule
A systematic internaliser may limit the number of transactions from the same client that it undertakes to enter at the published quote, provided it does so in a non-discriminatory way within the categories of retail and professional clients.

[Note: Recital 50 and Article 27(6) of MiFID]
  • 01/11/2007

MAR 6.14.2

handbook-rule
A systematic internaliser may limit the total number of transactions from different clients at the same time that it undertakes to enter at the published quote, provided that it does so:
(1) in a non-discriminatory way within the categories of retail and professional clients;
(2) in accordance with the provisions of the client order handling rules set out in COBS 12.3, COBS 12.4.1 R and COBS 12.4.5 R; and
(3) that the number or volume of orders sought by clients considerably exceeds the norm.
[Note: Recital 50 and Article 27(6) of MiFID]

MAR 6.14.3

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Export chapter as

MAR 7

Disclosure of information on certain trades undertaken outside a regulated market or MTF

MAR 7.1

Application

  • 01/11/2007

Who?

MAR 7.1.1

handbook-rule
This chapter applies to:
(1) a MiFID investment firm; and to
(2) a third country investment firm.
  • 01/11/2007

What?

MAR 7.1.2

handbook-rule
A firm, which, either on its own account or on behalf of clients, concludes transactions in shares admitted to trading on a regulated market outside a regulated market or MTF, must make public the volume and price of those transactions and the time at which they were concluded.

[Note: article 28(1) of MiFID]
  • 01/11/2007

Where?

MAR 7.1.3

handbook-rule
This chapter applies in respect of transactions in shares (which are admitted to trading on a regulated market) executed in the United Kingdom.
  • 01/11/2007

MAR 7.1.4

handbook-guidance
Article 32 (7) of MiFID provides that the competent authority of the Member State in which a branch is located shall assume responsibility for ensuring that the services provided by the branch within its territory comply with the obligations under Article 28.
  • 01/11/2007

Status of EU provisions as rules in certain instances

MAR 7.1.5

handbook-rule
In this chapter, paragraphs marked "EU", including MAR 7 Annex 1 EU, shall apply to a third country investment firm as if those provisions were rules.
  • 01/11/2007

MAR 7.2

Making post-trade information public

  • 01/11/2007

Publication of information

MAR 7.2.1

handbook-rule
(1) Unless (2) applies, the information required by MAR 7.1.2 R shall be made public as close to real-time as possible, on a reasonable commercial basis, and in a manner which is easily accessible to other market participants.

[Note: article 28(1) of MiFID]
(2) A firm may defer publication of trade information required in (1), for no longer than the period specified in Table 4 in Annex II of the MiFID Regulation for the class of share and transaction concerned, provided that the criteria in (a) and (b) are satisfied, subject to the provision in (c):
(a) the transaction is between an investment firmdealing on own account and a client of that firm;
(b) the size of the transaction is equal to or exceeds the relevant minimum qualifying size, as specified in Table 4 in Annex II.
(c) In order to determine the relevant minimum qualifying size for the purposes of (b), all shares admitted to trading on a regulated market must be classified in accordance with their average daily turnover to be calculated in accordance with Article 33 of the MiFID Regulation.

[Note: Table 4 of Annex II of the MiFID Regulation is reproduced in MAR 7 Annex 1 EU.]
  • 01/11/2007

MAR 7.2.2

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Details of information to be made public

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Information requirements specific to systematic internalisers

MAR 7.2.3

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MAR 7.2.4

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MAR 7.2.5

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Arrangements between firms for making information public

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MAR 7.2.6

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Deferred publication of large transactions

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MAR 7.2.6A

handbook-guidance
The deferred publication of information, referred to in MAR 7.2.6 EU, is authorised by the FSA , to the extent set out in that provision, and, in particular, is given effect in MAR 7.2.1 R (2).
  • 01/11/2007

MAR 7.2.7

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Publication and availability of post trade transparency data

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MAR 7.2.8

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MAR 7.2.9

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MAR 7.2.10

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MAR 7.2.11

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Public availability of post-trade information

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MAR 7.2.12

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Arrangements for making information public

  • 01/11/2007

MAR 7.2.12A

handbook-guidance
(1) The FSA considers that for the purposes of ensuring that published information is reliable, monitored continuously for errors, and corrected as soon as errors are detected (see MAR 7.2.12 EU(a)), and in respect of arrangements facilitating the consolidation of data as required in MAR 7.2.12 EU(b), the guidance in MAR 5.8.3 G and MAR 5.8.4 G (subject to additional guidance in (2)) applies equally to firms falling within this chapter, and should be read as if references to provisions and types of firm in MAR 5 were references to the corresponding provisions and types of firm in this chapter.
(2) In addition to MAR 5.8.4 G, as applied to firms in this chapter under (1), for the purposes of facilitating the consolidation of transparency data with similar data from other sources, the FSA considers information as being made public in accordance with MAR 7.2.12 EU(b), if, in addition to MAR 5.8.4 G (1)(a) to (c), each trade is published through only one primary publication channel.
  • 01/11/2007

Publication of results of calculations and estimates made by the FSA

MAR 7.2.13

handbook-guidance
The information relating to 'minimum qualifying size' referred to in Article 28 of the MiFID Regulation (see MAR 7.2.6 EU) and the results of calculations and estimates required to be published as a result of Articles 33 and 34 of the MiFID Regulation are availableat www.fsa.gov.uk and at www.cesr-eu.org .

Trade Data Monitors

MAR 7.2.14

handbook-guidance


The FSA considers that a firm will satisfy its obligations under MAR 7.2.12 EUif:
(1) in assessing the arrangements, the firm follows the guidelines published on the FSA's website at www.fsa.gov.uk/Pages/About/What/International/mifid/documents/index.shtml ; and
(2) it has been confirmed that the arrangements will enable the firm to comply with the guidelines through either:
(a) a statement by the FSA ; or
(b) a report by an external auditor to the provider of the arrangements which is made available to firms and, on request, to the FSA .




A "trade data monitor" is a provider of such arrangements which has been assessed by the FSA or an external auditor as having the capability to provide services and facilities to firms in accordance with the guidelines published on the FSA's website at www.fsa.gov.uk/Pages/About/What/International/mifid/documents/index.shtml .



Use of a trade data monitor does not affect a firm's obligations under MAR 7.2.10 EU regarding the timing of the disclosure of post-trade information.

MAR 7 Annex 1

Deferred publication thresholds and delays

  • 01/11/2007

handbook-eu-text
Table 4: Deferred publication thresholds and delays

The table below shows, for each permitted delay for publication and each class of shares in terms of average daily turnover (ADT), the minimum qualifying size of transaction that will qualify for that delay in respect of a share of that type.
  • 01/11/2007

Export chapter as

Transitional Provisions and Schedules

MAR TP 1

Transitional Provisions

MAR TP 1.1
MAR TP 1.2

MAR Sch 1

Record Keeping requirements

  • 01/12/2004

MAR Sch 1.1

handbook-guidance

MAR Sch 2

Notification requirements

  • 01/12/2004

MAR Sch 2.1

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MAR Sch 3

Fees and other required payments

  • 01/12/2004

MAR Sch 3.1

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MAR Sch 4

Powers Exercised

  • 01/12/2004

MAR Sch 4.1

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MAR Sch 4.2

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MAR Sch 5

Rights of action for damages

  • 01/12/2004

MAR Sch 5.1

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MAR Sch 5.2

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  • 01/12/2004

MAR Sch 6

Rules that can be waived

  • 01/12/2004

MAR Sch 6.1

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Export chapter as

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