Following the London Stock Exchange's consultation on the AIM Rules to reflect the introduction of the Market Abuse Regulation ("MAR") (see your briefing), AIM Regulation has, as expected, published some guidance in its newsletter "Inside AIM".
The guidance, which is based on the presumption that the proposed changes to the AIM Rules will be implemented, covers four areas:
- AIM Rule 11 - (Disclosure of price sensitive information) – The purpose of this rule is to is to maintain a fair and orderly market in securities and to ensure that all users of the market have simultaneous access to the same information in order to make investment decisions, and it should be considered separately from the disclosure obligation in respect of inside information under Article 17 of MAR, the purpose of which is to protect investors from market abuse. An AIM company must comply with both the AIM Rules and MAR, and compliance with MAR does not mean that an AIM company will have satisfied its obligations under the AIM Rules (and visa versa). AIM Regulation does not expect to see a different approach by AIM companies and nominated advisers to compliance with AIM Rule 11 post MAR and reminds companies of its disciplinary powers in respect of a breach of this rule.
- Collaboration with the FCA - Whilst the FCA is the competent authority for MAR in the UK, and will therefore be responsible for investigation and enforcement of breaches of MAR, AIM Regulation will work closely with the FCA to co-ordinate its approach to obtaining any necessary information from an AIM company. Where a query arises as to whether an AIM company should make a disclosure, AIM Regulation will continue to liaise with the AIM company's nominated adviser regarding its obligations under the AIM Rules and will provide the FCA with information about these discussions, where relevant to MAR. AIM Regulation will not be able to opine on MAR obligations or compliance with MAR - any guidance provided in respect of disclosure will only be in relation to an AIM company's obligations under the AIM Rules.
- PDMR dealings - In order to ensure that AIM companies have in place systems and controls to manage the obligations imposed under MAR, AIM Regulation is proposing to amend AIM Rule 21 (Restriction on deals) to require:
- all AIM companies to have a dealing policy; a
- nominated advisers to consider this as part of their responsibilities
AIM companies and their nominated advisers will have to consider the design and implementation of the policy in a meaningful way, to ensure that it is capable of working in practice, taking into account the nominated adviser's knowledge of the company and its management. An AIM company's compliance with its obligations under MAR will not mean it will have automatically satisfied its obligations under AIM Rule 21.
- Insider lists – All AIM companies will be required under MAR to maintain a list of all those persons working for them that have access to inside information : a provision for which the FCA will be responsible for enforcing compliance. AIM companies will need to implement systems and controls to comply with these obligations.
Now that this guidance has been published, AIM companies need to review their compliance policies including share dealing and notification procedures and set up systems for maintaining insider lists and documenting situations where announcing inside information is being delayed.