Inside information under MiCAR

A decision to delay the public disclosure of inside information needs a record from the outset. That remains true whether the competent authority expects the reasons automatically after publication or asks for them later.

This distinction connects two important features of the Markets in Crypto-Assets Regulation, or MiCAR: a common European framework for handling inside information, and national differences in how that framework is administered. Teams need to understand both. A sound assessment of whether disclosure may be delayed must be accompanied by a process that preserves the assessment, monitors changing circumstances and delivers the right information to the right authority.

We are adding a dedicated workflow to DAAvern to help issuers, offerors and persons seeking admission to trading document these decisions. The legal framework explains why the workflow starts when the decision is made and continues throughout the delay.

Public disclosure is the starting point

MiCAR’s market-abuse rules apply to crypto-assets admitted to trading, or for which admission to trading has been requested. Their reach extends beyond transactions on a particular trading platform. Within that framework, Article 88 requires issuers, offerors and persons seeking admission to trading to inform the public as soon as possible of inside information that directly concerns them. (MiCAR, Articles 86 and 88(1))

The starting point is therefore an assessment of the information itself. Article 87 covers information of a precise nature that has not been made public and would, if published, be likely to have a significant effect on the relevant crypto-asset price. A development need not have reached its final stage: an intermediate step in a longer process can itself constitute inside information. Waiting for a transaction, negotiation or other development to be completed can therefore leave the disclosure question unanswered for too long. (MiCAR, Article 87(1)(a) and (2)–(4))

The persons subject to the disclosure duty also need to be identified correctly. Article 88 does not impose that duty on every person who happens to possess inside information, nor automatically on every crypto-asset service provider. A service provider may, however, also act as an offeror or a person seeking admission to trading. The wider prohibitions on insider dealing and unlawful disclosure remain relevant independently of who must publish the information. (MiCAR, Articles 88–90)

Public disclosure itself involves more than quietly uploading a document. The implementing technical standards require dissemination through media reasonably relied upon by the public, alongside a downloadable written statement on the entity’s website. The information must be accessible on a non-discriminatory basis and free of charge; the website must make disclosures easy to find, display their dates and times, list them chronologically and offer publication alerts. MiCAR also requires published inside information to remain on the website for at least five years. (Commission Implementing Regulation (EU) 2024/2861, Articles 1–2; MiCAR, Article 88(1))

A delay depends on three continuing conditions

MiCAR permits an issuer, offeror or person seeking admission to trading to delay disclosure on its own responsibility only where all three conditions are satisfied:

·   Immediate disclosure would be likely to prejudice its legitimate interests.

·   Delaying disclosure would be unlikely to mislead the public.

·   It can ensure the confidentiality of the information.

These are cumulative conditions. A strong commercial reason for keeping information confidential does not compensate for a misleading public picture, and a convincing explanation of the first two conditions cannot compensate for an inability to maintain confidentiality. (MiCAR, Article 88(2))

Each condition calls for reasoning tied to the particular facts. For example, a team considering whether publication would jeopardise an ongoing negotiation should identify the specific interest at risk and explain how immediate disclosure would prejudice it. The existence of a negotiation is not, by itself, a complete justification. Similarly, concern about an adverse price reaction does not itself establish that all three conditions are met.

The assessment of whether delay could mislead the public should take account of what the entity has already communicated. Earlier statements about a project, its financial position or a forthcoming development may matter when considering the picture that continued silence would leave with the public. Confidentiality, in turn, requires an assessment of actual access to the information and the controls surrounding it, including access by external advisers and other third parties.

Article 88 does not make a delay conditional on advance supervisory approval. Responsibility rests with the entity, and it continues throughout the delay. The technical standards expressly require ongoing monitoring and evidence of changes affecting the conditions. If a condition ceases to be satisfied, the basis for continued delay falls away and the obligation to disclose as soon as possible must be addressed. (MiCAR, Article 88(1)–(2); Implementing Regulation 2024/2861, Article 3(1)(b)(ii) and (c))

Operationally, this calls for clear review triggers. A change in the underlying facts, an additional person receiving the information, a new public statement or an indication that confidentiality has been lost should prompt a fresh assessment. A planned publication date is useful for organising the process; it cannot justify waiting once the legal conditions no longer hold.

The record begins with the decision

The relevant technical standards are contained in Commission Implementing Regulation (EU) 2024/2861. This is an implementing regulation, adopted on the basis of draft standards submitted by ESMA, rather than a delegated regulation. Article 3 translates the delay decision into specific recordkeeping requirements. (Implementing Regulation 2024/2861, recital 10 and Article 3)

The required record covers three connected areas:

·   Chronology: when the inside information first existed within the entity, when the decision to delay was made and when disclosure is expected.

·   Responsibility: the positions or functions responsible for deciding on the delay and its likely duration, monitoring the conditions, deciding on disclosure, and providing the notification and explanation to the authority.

·   Supporting evidence: evidence that the conditions were initially satisfied and of changes during the delay, including internal and external information barriers and arrangements for responding when confidentiality can no longer be ensured.

These requirements make the record a continuing account of the decision and its review. A document prepared only after publication may describe the final outcome but fail to preserve what was known, considered and decided earlier. (Implementing Regulation 2024/2861, Article 3(1)(a)–(c))

The distinction between the first existence of inside information and the later decision to delay is particularly useful. Recording both moments exposes any gap that needs to be explained. A later decision cannot simply be treated as having retrospectively authorised an earlier period of non-disclosure. This follows from the combination of the obligation to disclose as soon as possible and the requirement to record the two times separately. (MiCAR, Article 88(1)–(2); Implementing Regulation 2024/2861, Article 3(1)(a)(i)–(ii))

The record must remain accessible and readable on a durable medium. The regulation defines this by reference to future access for an adequate period and the ability to reproduce the stored information unchanged. It does not prescribe a particular software product. In practical terms, teams should preserve the original assessment and subsequent reviews, with their dates and supporting material, instead of continually overwriting the initial reasoning with the latest version. (Implementing Regulation 2024/2861, Article 3(1), second subparagraph)

The five-year website rule for published inside information should not be confused with a specific five-year retention rule for the internal delay file. Article 3 uses the durable-medium standard described above; retention of the internal record requires its own assessment. (MiCAR, Article 88(1); Implementing Regulation 2024/2861, Article 3(1))

Notification is mandatory after a delay

Once delayed inside information is made public, the competent authority must be informed immediately that disclosure was delayed. By default, the entity must also provide a written explanation of how the conditions were met. Member States may provide that the record of that explanation is submitted only upon request. (MiCAR, Article 88(3))

That national option changes when the explanation is submitted. It leaves both the mandatory delay notification and the continuing documentation requirement in place. Teams in a Member State using the option therefore need a process for notifying promptly after publication and responding to a later request using the record maintained during the delay.

Nor does an authority operating an explanation-on-request regime receive merely an unstructured statement that “there was a delay”. The EU standards prescribe information for the notification, including the entity and notifying person, contact details, identification and publication time of the announcement, the time of the delay decision and the functions responsible for it. The detailed justification against the three conditions is a separate element. (Implementing Regulation 2024/2861, Article 3(1), third subparagraph, and (2)–(3))

Several Member States use the explanation-on-request approach. The following examples illustrate the national choices; they are not an exhaustive EU survey.

Member State	Position and source
Finland	FIN-FSA’s MiCA guidance provides for immediate notification after publication and explains that the authority may request the justification and further details. See FIN-FSA guidance, notification section and final substantive paragraph, updated 31 January 2025.
France	The AMF may request an explanation, which must then be supplied without delay. See AMF General Regulation, Article 712-1.
Greece	The delay must be notified immediately after publication; written reasons are supplied if the Hellenic Capital Market Commission requests them. See Law 5193/2025, Article 111(1), reproduced by TaxHeaven.
Italy	Documentation supporting compliance with the delay conditions is supplied upon a subsequent request by Consob. See Legislative Decree 129/2024, Article 18(2).
Luxembourg	The record explaining compliance with the conditions is supplied only upon the CSSF’s request. See Law of 16 July 2019, as amended, Article 20-28(3), p. 27 of the CSSF consolidation.

It would be misleading to infer from these choices that the authorities have waived scrutiny of delay decisions. They have dispensed with automatic submission of the explanation. Their ability to request it remains, and the entity’s responsibility for a lawful delay is unchanged.

Germany also requires transmission of the published information

A different question arises whenever inside information is published, whether or not disclosure was delayed: must the published information also be sent to the supervisor?

Article 88 does not itself establish a general duty to notify the competent authority of every ordinary, non-delayed publication. Germany has introduced an additional national requirement. Under section 36(1) of the Kryptomärkteaufsichtsgesetz, an issuer, offeror or applicant subject to Article 88(1) for which Germany is the home Member State must transmit the inside information to BaFin without undue delay after publication. (MiCAR, Article 88; KMAG, section 36(1))

The German legislative explanation presents this as a means of enabling effective supervision and draws on the notification model under securities law. The source of this general transmission duty is the German statute; it is distinct from the EU technical standards governing notification of delayed disclosure. (German government bill, Bundestag printed paper 20/10280, p. 151, explanation of section 36(1))

For an entity within the German provision, publishing information after a delay can therefore engage both the national duty to transmit the announcement and the MiCAR duty to notify the delay and explain it as required. The process should identify both legal obligations, even where an authority’s submission arrangements allow them to be handled together.

Our conversations with a number of national competent authorities have also revealed different expectations about receiving ordinary publications. Some did not want routine notifications, linking that position to the follow-up they considered necessary when information was brought to their attention. Others favoured receiving information on a consolidated basis rather than separately for every announcement.

Those conversations illustrate differences in supervisory practice. Informal feedback should, however, be distinguished from a statutory obligation, a published reporting procedure or a binding request. A workflow needs to capture the applicable requirement and its source, including whether an arrangement concerns ordinary announcements or the separate, mandatory notification following a delay.

The recipient and transmission method also matter

Even a well-prepared notification can fail operationally if responsibility for sending it is unclear or the reporting channel has not been identified in advance. The EU standards require use of the authority’s designated contact point and specified electronic means, with completeness, integrity and confidentiality preserved during transmission. Authorities must publish these arrangements on their websites. (Implementing Regulation 2024/2861, Article 3(1), third and fourth subparagraphs)

National procedures consequently matter alongside the harmonised content requirements. FIN-FSA, for example, directs delay notifications to a specified address using secure email. Germany’s Kryptomärkte-Mitteilungsverordnung adds national rules on the content and electronic transmission of the notification under section 36 KMAG. These details should be checked when designing the disclosure process, rather than first investigated after publication has started the notification clock. (FIN-FSA guidance, notification section; KMMV, sections 2 and 3)

There may also be more than one MiCAR authority in a Member State. Article 93 expressly accommodates multiple competent authorities, requires their tasks to be defined and provides for a single contact point for cross-border administrative cooperation. That cooperation contact is not automatically the recipient for every filing by an entity. (MiCAR, Article 93(1)–(2))

France and Italy illustrate the distinction: MiCAR responsibilities are shared between the AMF and ACPR in France, and between Consob and the Bank of Italy in Italy; Title VI market-abuse supervision is assigned to the AMF and Consob respectively. An entity should therefore identify the authority competent for the particular obligation, rather than assume its usual prudential supervisor receives every MiCAR submission. (ESMA, List of competent authorities notified under MiCA, 17 February 2026, p. 4)

Enforcement combines an EU baseline with national choices

National differences extend to sanctions, although MiCAR does not leave the subject entirely to national discretion. Article 111 establishes a common baseline of sanctioning powers and required maximum fine levels for breaches of the market-abuse provisions. Member States may provide additional powers or higher penalties. These are requirements concerning the sanctions authorities must be able to impose, rather than minimum fines automatically payable for every infringement. (MiCAR, Article 111(1)(e), (5) and (6))

National criminal law may also be relevant. Germany, for example, provides criminal penalties for specified breaches involving insider dealing, recommendations or inducements based on inside information, and unlawful disclosure. These offences should be distinguished from a failure to complete a publication or notification procedure. A lawful delay does not permit insiders to trade on the undisclosed information. (KMAG, section 46(1), points 4–6; MiCAR, Articles 89–90)

ESMA’s annual reporting offers one view of enforcement. Under Article 115, national authorities provide aggregate information on administrative penalties and measures, and ESMA publishes that information annually. The report is concerned with MiCAR more broadly, rather than exclusively its market-abuse provisions. (MiCAR, Article 115(1))

ESMA’s report covering 2024, published on 16 October 2025, recorded no administrative sanctions or measures under MiCAR. For market abuse, that result has limited explanatory value: Title VI applied only from 30 December 2024, leaving two days in the reporting year. Other parts of MiCAR, particularly the rules on asset-referenced and e-money tokens, had already begun applying on 30 June 2024. It would therefore be inaccurate to say that MiCAR as a whole applied for only two days. (ESMA, Sanctions and measures imposed in Member States in 2024, paragraph 137, p. 77; MiCAR, Article 149(2)–(3))

The 2025 reporting year provides the first full calendar year for the market-abuse regime. An October 2026 publication would follow the timing of ESMA’s first two consolidated sanctions reports, but that is an expectation based on past practice, not a fixed statutory publication date. In any event, an absence of reported sanctions should not be read as an absence of suspected infringements, supervisory enquiries or ongoing investigations. (ESMA, first consolidated report announcement, 11 October 2024; second consolidated report announcement, 16 October 2025)

ESAP introduces another filing obligation in 2030

A further EU-wide requirement is already written into MiCAR. From 10 January 2030, Article 110a requires information published under Article 88(1) to be submitted simultaneously to the relevant designated collection body so that it can be made accessible through the European Single Access Point, or ESAP. Member States must designate at least one such collection body by 9 January 2030. (MiCAR, Article 110a(1) and (3))

This requirement covers the public information itself. It does not turn the confidential reasoning behind a delay into an ESAP publication. It is also distinct from the notification to the market-abuse authority, and the collection body need not be the same institution. Disclosure procedures will therefore need to account for the public announcement, the simultaneous ESAP submission and any applicable supervisory notification as separate obligations.

Article 110a already specifies a data-extractable format, or a machine-readable format where Union law requires it, together with metadata including the legal entity identifier for legal persons. Teams designing their records today can prepare by maintaining consistent entity identifiers, announcement references and publication timestamps. This is a practical design consideration, not a suggestion that the 2030 submission duty already applies. (MiCAR, Article 110a(1)(a)–(b) and (2))

What we are adding to DAAvern

Our dedicated delay-disclosure workflow is designed to guide teams through documenting the reasoning and evidence for each of the three conditions, the relevant times, the allocation of responsibilities, information barriers and arrangements for responding to a loss of confidentiality. It also covers subsequent reviews and changes affecting the justification for continued delay.

The purpose is to preserve a structured record of how the decision developed: what the team knew when it decided to delay, why it considered the conditions satisfied, who was responsible for monitoring them and what changed before publication. That record should support both an explanation submitted immediately after disclosure and one requested by an authority later.

A useful process also needs to distinguish substantive assessment from filing arrangements. Whether reasons are submitted automatically, which authority receives them and how they are transmitted can vary. The need to make and preserve a reasoned assessment exists throughout the delay.

Software can help teams organise that work and retain its history. The entity remains responsible for deciding whether delay is justified and when the information must be disclosed. With this addition to DAAvern, we want to make the reasoning behind those decisions easier to document, review and retrieve when it matters.