Final Report Guidelines on MAR - information relating to commodity derivatives markets or related spot markets for the purpose of the definition of inside information on commodity derivatives

Final Report Guidelines on MAR - information relating to commodity derivatives markets or related spot markets for the purpose of the definition of inside information on commodity derivatives

1 Executive Summary
Reasons for publication
Article 7(5) of MAR provides that the European Securities and Markets Authority (ESMA)
shall issue guidelines to establish a non-exhaustive indicative list of information which is 
reasonably expected or is required to be disclosed in accordance with legal or regulatory 
provisions in Union or national law, market rules, contract, practice or custom, on the 
relevant commodity derivatives markets or spot markets as referred to in Article 7(1)(b) of 
MAR. This final report follows the Consultation Paper1
(CP) issued on March 2016. 
Contents
Section 2 contains information on the background and mandate, while Section 3 sets out 
ESMA’s feedback to the CP responses in relation to the scope of the guidelines, the financial 
instruments and products covered by the examples of information relating directly and 
indirectly to commodity derivatives and information directly relating to a spot market contract. 
It also indicates whether and where ESMA has changed the guidelines following the 
consultation.
Annex I lists questions raised in the CP. Annex 2 provides the legislative mandate on the 
basis of which ESMA is issuing these guidelines. Annex 3 sets out ESMA’s view on the costs 
and benefits associated with these guidelines. Annex 4 contains the text of the guidelines. 
Next steps
The guidelines in Annex 4 will be translated into the official languages of the European Union 
and published on the ESMA’s website. Within 2 months of the issuance of the translations, 
each national competent authority will have to confirm whether it complies or intends to 
comply with those guidelines. In the event that a national competent authority does not 
comply or does not intend to comply, it will have to inform ESMA, stating its reasons. ESMA 
will publish the fact that a national competent authority does not comply or does not intend 
to comply with those guidelines.

2 Background and mandate
1. Article 7(1)(b) of MAR defines inside information in relation to commodity derivatives as 
«information of a precise nature, which has not been made public, relating, directly or 
indirectly to one or more such derivatives or relating directly to the related spot commodity 
contract, and which, if it were made public, would be likely to have a significant effect on 
the prices of such derivatives or related spot commodity contracts, and where this is 
information which is reasonably expected to be disclosed or is required to be disclosed in 
accordance with legal or regulatory provisions at the Union or national level, market rules, 
contract, practice or custom, on the relevant commodity derivatives markets or spot 
markets». Therefore, it is information that: 
a) relates: 
i. directly or indirectly to commodity derivatives as financial instruments admitted to 
trading or traded on a trading venue,
ii. directly to a spot commodity contract;
b) meets the three criteria laid down in MAR for defining inside information in relation to 
financial instruments: 
i. being non-public,
ii. being precise, and 
iii. being likely to have a significant price effect if it were made public on the 
commodity derivatives themselves or on the related spot commodity contract; 
and
c) is “reasonably expected to be disclosed or required to be disclosed in accordance with 
legal or regulatory provisions at Union or national level, market rules, contract, practice 
or custom, on the relevant commodity derivatives markets or spot markets”. 
2. Article 7(5) of MAR requires ESMA to issue guidelines to establish a non-exhaustive 
indicative list of information which would fall under the above point c). In preparing these
Guidelines, ESMA is required to “duly take into account the specificities of those markets” 
(i.e. the commodity derivatives markets and the spot markets).
3. On 30 March 2016, ESMA published a consultation paper containing draft guidelines on 
this matter (ESMA/2016/444) and provided an eight-week period for interested 
stakeholders to respond to the consultation.
4. ESMA sought the advice of the Securities and Markets Stakeholder Group’s on the 
guidelines proposed in the CP, which ultimately did not provide a formal opinion.

Final Report Guidelines on MAR - information relating to commodity derivatives markets or related spot markets for the purpose of the definition of inside information on commodity derivatives