Financial Reporting and Earnings Forecasts Under the New MAR Framework
- More Time Before Results From Financial Data Determination Become Subject to Ad Hoc Disclosure
- Case-by-Case Assessment for One-Off Events to Determine Immediate Publication Obligation
- Recommended to Continue Documenting Decisions and Seek Legal Advice if Necessary
- Delegated Regulation (EU) 2026/789 of the EU Commission on MAR Effective Since July 19, 2026
Tobias ReiterPartner
Attorney at Law (Germany)
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Benjamin Wallenborn-WeißAssociate
Attorney at Law (Germany)
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The reformed version of Art. 17 of the Market Abuse Regulation (“MAR”) has been in effect since June 5, 2026. The resulting relief does not apply to so-called one-off events with impacts on earnings forecasts. We provide issuers with practical recommendations for action.
The Reform in Brief: Intermediate Steps Generally No Longer Require Immediate Publication
Under the old law, even a single intermediate step of a multi-stage process—such as the signing of a letter of intent in a corporate transaction—could constitute independent inside information requiring immediate publication. Issuers had to regularly review and document whether the requirements for a delay under Art. 17(4) MAR continued to be met—a significant bureaucratic effort. This also applied, for example, if it became clear during the preparation of financial reports that forecasts communicated to the capital market would not be met.
Since June 5, 2026, this has changed: According to Art. 17(1) sub-para. 1 sentences 2 and 3 MAR (new version), only the final event of a protracted process must be published immediately. Consequently, a formal resolution to delay disclosure for individual intermediate steps is no longer necessary; however, the prohibitions on insider dealing and the obligation to maintain insider lists remain unaffected (see also our article Fewer Ad Hoc Announcements, More Legal Certainty? An Overview of the Market Abuse Regulation Reform Regarding Intermediate Steps).
Go directly to the Recommendations for Action
Commission Delegated Regulation (EU) 2026/789 of April 8, 2026 (hereinafter “DelVO“), which supplements the MAR, lists 35 exemplary scenarios in Annex I across seven categories—ranging from M&A transactions and corporate actions to the appointment of board members—where issuers can orient themselves toward the respective final event.
The DelVO entered into force on July 19, 2026. It had been long awaited, as it regulates more precisely, among other things, when inside information must be disclosed in the case of protracted processes under Art. 7 MAR and in which cases an immediate disclosure obligation exists due to a contradiction with the last public announcement. It applies directly in all European Union member states and must therefore be observed by all issuers.
Financial Reporting and Earnings Forecasts Within the Group
Every company is already required by commercial law to prepare (consolidated) annual financial statements as part of its financial reporting. Depending on the type of listing on the capital market, additional reporting obligations arise through half-yearly reports and quarterly statements. Stock corporations in the regulated market are therefore almost continuously involved in the preparation of financial reporting.
Directly related to the preparation of financial reporting is the determination and monitoring of the earnings forecast to be published on the capital market. Within the group, this is created as part of group planning, which is based on the consolidated figures of the subsidiaries as well as assumptions regarding market and business development. The operating units provide their individual plans, which are consolidated by Group Controlling, checked for plausibility, and coordinated with the Management Board. This results in the range or point value of key metrics (such as revenue, EBIT, or net income) communicated as a forecast. Depending on the size of the group, this can span a period of several days or, particularly during the preparation of annual, consolidated, and half-yearly financial statements, several weeks to months.
During the course of the fiscal year, this earnings forecast is continuously compared with actual figures. If the foreseeable business development deviates significantly from the published forecast, this may constitute inside information within the meaning of Art. 7 MAR, provided the deviation is likely to significantly influence the stock exchange or market price of the issuer’s financial instruments. Determining the threshold at which such significance is reached is ultimately a matter of company-specific assessment, which must, however, be guided by market practice and the issuer’s previous forecast data.
Following the amendment of Art. 17(1) sub-para. 1 sentences 2 and 3 MAR (new version) in conjunction with examples 11 and 12 of Annex I of the DelVO, business results and forecasts within the framework of financial reporting only need to be published at the time they are acknowledged or approved by the management body. The management body does not necessarily have to be the Management Board. Taking into account the dualistic management structure of German stock corporations, the European legislator explicitly stated in Recital (4) of the DelVO that national law, the articles of association, or the rules of procedure of an issuer may stipulate that a decision must be approved by the Supervisory Board.
Thus, within the framework of the list in Annex II, the Supervisory Board is to be regarded as the “management body” relevant for the time of publication. In practice, this represents a relief, as companies have more time during the preparation of financial reporting to utilize accounting policy leeway before individual impacts on financial reporting become subject to ad hoc disclosure. Naturally, the European legislator pointed out in Recital (4) of the DelVO that the decision of the Supervisory Board as the management body in the internal decision-making process “must be taken as soon as possible after the decision of the Management Board.”
Exception: Extraordinary Adjustments to Earnings Forecasts Due to Individual Business Transactions
Under the new MAR regulatory regime, the question now arises whether extraordinary adjustments to the earnings forecast, such as an intra-year profit warning due to a specific event, also constitute an intermediate step within financial reporting and are thus exempt from the publication obligation, or whether it is a so-called “one-off event.” A clear statement from ESMA and BaFin on this matter is not yet available.
In the case of a so-called one-off event, there is already a precise and final impact on the business figures (e.g., EBIT and thus on the forecast communicated to the capital market). This constitutes a subtle difference from most of the 35 examples mentioned above or in Annex I of the DelVO. In the case of an earnings forecast, the company has already published a forecast on the capital market that the market relies upon, so that publication of the information cannot wait until the next business figures are released.
In this case, the contradiction test newly regulated by the EU Listing Act generally comes into consideration. Under the old law, it had to be examined whether the delay was likely to mislead the public. The European legislator has now regulated in Art. 17(4) sub-para. 1 (b) MAR (new version) that the delay must “not be in contradiction with the last public announcement or any other communication of the issuer or the emission allowance market participant on the same matter to which the inside information relates.”
In Annex II, the DelVO contains a non-exhaustive list of eight groups of cases in which information contradicts the issuer’s last public communication. In these cases, a delay is ruled out from the outset and there is an immediate publication obligation. At the top of the list in Annex II, a “significant change in forecasts, financial results, or business objectives compared to a previous public announcement or communication (e.g., profit warnings and earnings deviations)” is even listed as a standard example.
The reason for the clawback exception provided for in Art. 17(4) sub-para. 1 (b) MAR lies in the system: Relief for intermediate steps only works as long as the market has not already formed a contrary expectation based on the issuer’s earlier communication. If a company has previously published a forecast and it is already internally finalized that this will be significantly missed, withholding this information creates a contradiction with previous communication—and that is exactly what the MAR fundamentally aims to prevent.
However, Art. 17(7) sub-para. 1 MAR simultaneously stipulates that for inside information related to intermediate steps in a protracted process, it only depends on ensuring confidentiality. It therefore seems to depend on whether the change in the earnings forecast or profit warning is a protracted matter within the framework of financial reporting or whether the impact is already final due to a so-called one-off event.
Practical Example: Preliminary Figures vs. Fixed Deviation
An example illustrates the distinction: A stock corporation has communicated an EBIT forecast of 80 to 90 million euros for the current fiscal year. At the beginning of the first quarter, it becomes apparent in accounting that the EBIT will likely be lower, but the final figures are not yet fixed—here, the reform actually gives the Supervisory Board or the responsible Audit Committee (as the management body under MAR) a bit more time for the annual financial statements, because according to the DelVO, the decisive point for business figures and forecasts is generally when the responsible management body takes note of or approves the figures. This will usually be immediately before the report is published. This means that there can typically be up to one month between the Management Board’s acknowledgement of the final business figures and the Supervisory Board’s decision.
The case is different, however, if individual, sufficiently precise metrics are already fixed and have been communicated to the Management Board, which thus deviate significantly from the forecast or market expectation—for example, because a major order has been cancelled and the resulting earnings effect can already be quantified. Other examples include an extraordinary burden from a corporate fine or a lost legal dispute. Here, according to the overwhelming view, the following still applies: The ad hoc obligation arises as soon as this information is fixed, regardless of whether the full annual financial statements or the next financial report to be published is already available to the responsible management body. Waiting until the next scheduled financial communication is precisely not permitted in this case—a delay is expressly ruled out under Art. 17(4) sub-para. 1 (b) MAR in conjunction with Annex II No. 1 of the DelVO.
Practical Recommendations for Issuers
This results in the following recommendations for action for issuers:
- Careful assessment of whether it is a non-reportable intermediate step: For every piece of inside information, check separately whether it falls under the relief of a non-reportable intermediate step or—as in the case of so-called one-off events with final quantifiable impacts on the forecasted (consolidated) result—is expressly excluded from it.
- Adapt monitoring processes, do not abolish them: Even if formal resolutions to delay disclosure for genuine intermediate steps are no longer required, continuous controlling remains necessary for changes in forecasts, such as profit warnings, to identify significant deviations from forecasts at an early stage.
- Monitor BaFin’s position: How BaFin will handle the time of publication for extraordinary forecast changes and earnings deviations in the future remains open; a revised Issuer Guide is still pending. The same applies to future statements from ESMA.
- Documentation still recommended: Especially in the current phase—until established case law and administrative practice are available—issuers should continue to carefully document their assessment of the final event, intermediate steps, and confidentiality.
- Seek legal advice: Lawyers specializing in capital markets law can assist you in the decision-making process.
Conclusion
The MAR reform provides issuers with noticeably more breathing room in multi-stage transactions. However, in the case of profit warnings and other deviations from one’s own forecast, it is essential to carefully check when the publication obligation arises. This is the case for so-called one-off events as soon as the deviation is finally quantifiable and thus impacts the earnings forecast communicated to the capital market. Precisely because the new legal situation sounds like general relief at first glance, careful monitoring is worthwhile for management boards and compliance departments.
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