All persons acting on behalf or for the account of the issuer are also required to maintain their own insider lists. The terms “on behalf of” (im Auftrag) and “for the account of” (für Rechnung) do not have the same meaning as the same terms used in German law, for example within the meaning of section 675 of the BGB. Article 18 of the MAR does not intend to exclusively cover contractual relationships or commission agency business. Rather, these concepts must not be interpreted in the sense described above in the light of European law, but rather in a general and hence broader sense. The spirit and purpose of the European provision is to ensure that members of certain professions who act in the interests of the issuer and, by virtue of that activity, typically come into possession of inside information, are captured in a list and are clarified about their obligations in respect of inside information. This means persons who attend to the interests of the issuer or persons in advisory professions, or persons whose activities for the issuer mean that they otherwise fall into a category that typically comes into contact with inside information. Examples of such persons include lawyers, auditors, management consultants, tax advisers, investor relations agencies and external accountants. Such persons acting on behalf or for the account of the issuer are referred to collectively in the following as “service providers”.

A different approach may be needed for services provided within a group. For example, companies within a group are assessed in the same way as other non-group entities as service providers or as non-service providers, depending on the specific service they render for the issuer.

In its insider list, the issuer must include a reference to the involvement of such a service provider or the disclosure of inside information to such a service provider, noting the timing of the involvement of or disclosure to the service provider. For this purpose, it is sufficient to give the business name of the service provider and a contact person at the service provided, together with a telephone number.

If the service provider involves another service provider to discharge its mandate (e.g. if the bank instructed by the issuer to implement a corporate action in turn retains a lawyer who prepares a legal opinion on behalf of or for the account of the bank), that additional service provider is not obliged to maintain its own insider list for this matter because it is not acting on behalf or for the account of the issuer. However, the contact person at the second-tier service provider must be included in the service provider’s insider list.

Typical service providers of the issuer

Lawyers, civil law notaries, tax advisers and insolvency administrators are obliged to maintain their own insider list if they act on behalf or for the account of an issuer.

Auditors (German public auditors) must also maintain their own insider lists, regardless of whether they merely act in an advisory capacity and come into contact with inside information through the nature of their work, or if they are conducting a statutory audit. There is no longer an exemption comparable with the old version of section 15b (1) sentence 4 of the WpHG, which exempted auditors in the context of statutory audits.

As was the case under the previous law, an investor relations agency that advises the issuer on investor relations measures and typically comes into contact with inside information in the course of its work must maintain a corresponding insider list.

A rating agency that prepares a rating on the instructions of the issuer acts in the issuer’s interests and also frequently comes into contact with inside information through the nature of its work. In these cases, it is obliged to maintain its own insider list. However, this does not mean that it can be concluded that the rating agency is subject to the issuer’s instructions in preparing its rating or in particular that its independence is compromised. However, it should be noted that, if a rating agency prepares a rating on its own initiative or if commissioned by a third party (e.g. a bank), it does not act on behalf or for the account of the issuer and hence is not under an obligation to maintain an insider list.

A credit institution is a service provider within the meaning of Article 18 of the MAR if it provides services above and beyond the general banking services (e.g. account management, lending) and thus acts in the interests or within the sphere of the issuer. Examples of services establishing an obligation to maintain an insider list include the provision of advice on an initial public offering, a corporate action or an acquisition (involving the bank’s corporate finance or mergers & acquisitions functions).

A translation agency that translates ad hoc disclosures or draft agreements, etc., for the issuer typically acts on behalf of the issuer and must therefore maintain an insider list.

Providers of electronic information systems fall under the obligation to maintain an insider list, for example, if the issuer uses its systems to make public an ad hoc disclosure and the service provider comes into possession of inside information in the course of the advance provision of an ad hoc disclosure to BaFin in accordance with section 26 (1) of the WpHG.

Not service providers of the issuer

Courts, public prosecutor's offices and the police and other authorities exercise public authority and therefore do not act on behalf or for the account of the issuer. They therefore do not belong to the group of persons obliged to maintain insider lists referred to in Article 18 of the MAR.

Suppliers do not act in the interests of the issuer and are therefore not obliged to maintain their own insider lists.

Subsidiaries or parent companies of an issuer are, as before, generally not obliged to maintain an insider list. They do not act for, on behalf of or for the account of the issuer because neither Article 18 of the MAR nor the recitals indicate that the legislation was intended to cover affiliated companies. In cases where there is a holding company structure, there is also no general obligation for the unlisted holding company to maintain an insider list. This also applies where a control and profit and loss transfer agreement has been entered into between the parent company and the subsidiary. An obligation to maintain an insider list can be considered at most if the affiliated company is one of the service providers described above and comes into possession of inside information solely because of this.

However, if individual employees of the parent company or subsidiary still have a contractual relationship with the listed issuer and hence act for the issuer, those persons must be included in the issuer’s insider list if they come into possession of inside information through the nature of their work.

Foreign service providers

Article 18 of the MAR does not explicitly exempt third country service providers. Because Article 2(4) of the MAR sets out that the requirements of the MAR also apply to actions in third countries, third country foreigners must also maintain insider lists. This is also justified by the objective of the MAR to create a single European market for financial services.