Protracted Processes and the Timing of Disclosure After the Listing Act

The Listing Act (Regulation (EU) 2024/2809) and Commission Delegated Regulation (EU) 2026/789 have recast one of the most debated questions in EU capital markets law: when must an issuer disclose inside information that emerges gradually, over the course of a merger, an authorisation procedure, or any other transaction that unfolds in stages? In a recent paper, I set out the new regime and defend an inclusive construction of its central—and undefined—notion, the ‘protracted process’: a participation test, rather than a control test.

The story begins with the Court of Justice’s decision in Geltl v Daimler, which held that intermediate steps in a protracted process may themselves constitute precise inside information. MAR codified that holding, with the consequence that one and the same notion of inside information governed both the insider dealing prohibition and the duty of disclosure: information mature enough to trigger the trading ban simultaneously fell due for publication, subject only to a delay under Article 17(4). The predictable response was systematic recourse to delay, extensively documented in ESMA’s MAR Review.

The Listing Act converts that fragile market equilibrium into a rule of positive law. Under the amended Article 17(1), the trading prohibition continues to attach to inside information as soon as it arises, but the duty to disclose is, for protracted processes, postponed to the final event; intermediate steps are withdrawn from the disclosure obligation and placed under a free-standing confidentiality duty (Article 17(1a)), with no need to invoke the delay mechanism at all (Article 17(4a)). The Delegated Regulation completes the design with a non-exhaustive catalogue of thirty-five final events, grouped into seven categories (Annex I), and a list of situations in which the information contrasts with the issuer’s latest public communication and delay is therefore unavailable (Annex II).

The central notion of the new regime—the protracted process—is nowhere defined at Level 1, and the boundary question is not academic. If a development lies outside the category, its preliminary phases fall back into the pre-reform analysis: disclosure is due as soon as the information becomes precise under Article 7(2), potentially well before any final event. The stakes are highest for processes heavily shaped by third parties—an authorisation procedure decided by a supervisor, litigation resolved by a court, negotiations concluded by a counterparty. To exclude such processes from the category would return their preliminary phases to an anticipated disclosure of still-evolving information, reintroducing, by another route, the early disclosure of immature information whose informational risk the Listing Act set out to reduce.

The paper answers the boundary question by following the evolution of the wording. Drawing on the Level 2 record—the Commission’s mandate, ESMA’s consultation, the technical advice, and the adopted text—I show that the definition of the protracted process evolved in a decisive direction. ESMA’s consultation draft spoke of steps performed to achieve a ‘pre-defined’ objective, a formulation that could suggest a control test. Following the consultation, that language gave way to the wording now found in Recital 1 of the Delegated Regulation: a series of actions, steps or decisions ‘which need to be performed, at least in part, by an issuer’. ESMA itself explained that the qualifier was added precisely to clarify that parties other than the issuer—an authority or a private counterparty—can play a role in the process. The drafting history thus records a participation test, not a control test: a process is protracted whenever the issuer performs at least some of its steps, however decisively third parties shape the outcome.

The structure of Annex I confirms the point. A substantial portion of the catalogue—licences and authorisations, intellectual property rights, commercialisation approvals, procurement awards, supervisory reviews, administrative and judicial decisions—concerns processes whose final event is the act of an authority, a court or a counterparty, while the issuer’s contribution is confined to the application, the filing or the participation. If dependence on external actors expelled a development from the category, much of the Annex would be misclassified. On the inclusive construction, the field contracts to two terms: protracted processes, disclosed at the final event, and developments in which the issuer performs no step at all, disclosed under the ordinary regime as soon as the issuer becomes aware of them. Geltl is, for disclosure purposes, largely superseded—which is precisely the simplification the reform sought.

The paper then turns to profit warnings and earnings surprises, which the new regime treats as one-off events requiring immediate disclosure. I distinguish the textually secure core of that rule—where the deviation contrasts with the issuer’s own prior communication, Annex II(1) read with Article 17(4)(b) denies delay in terms—from its inferential extensions, where no prior communication exists and the exclusion of delay rests on ESMA’s characterisation of such deviations as one-off events alone. A recent decision of the Court of Milan in the Saipem case usefully confirms that even a profit warning may require an internal verification interval before the information reaches precision: the disclosure clock starts when the information qualifies under Article 7, not before.

More generally, I read Annex I as a codified methodology rather than a closed enumeration: every entry anchors disclosure to a formal act—a governing body’s decision, a binding instrument, a submission, a formal notification—and for processes not listed, the issuer’s task is to replicate that method by analogy.

What the reform leaves open is the attribution of knowledge to the issuer: when is a legal person to be taken to ‘know’ the information the duty presupposes? MAR is largely silent, national doctrines diverge, and the question has now reached the Court of Justice through the Bundesgerichtshof’s reference in the Volkswagen diesel litigation. By keying disclosure to the correct identification of the final event, the reform makes adequate internal escalation channels not merely the doctrinal foundation of attribution but the operative condition of compliance. That, I suggest, is where the next chapter of this story will be written.

The author’s full paper is available here.

Filippo Annunziata is Full Professor of Financial Markets Law at Bocconi University, Milan.