Hamburg, Frankfurt – The commercial law firm CMS and the communications consultancy Kirchhoff have jointly presented an up-to-date market analysis of the publication behaviour of listed companies in the DAX160. The analysis shows that one in four companies voluntarily publishes preliminary business figures – often beyond the scope of regulatory obligations, but not without legal pitfalls.
It assesses the behaviour of all 160 DAX, MDAX and SDAX companies with regard to preliminary key financial figures for the 2024 financial year. A total of 44 companies (27.5 per cent) communicated preliminary figures voluntarily, meaning they did so without giving any ad hoc reasons. One notable observation is that small cap companies in particular use this form of capital market communication.
Legal uncertainty with regard to closed periods
A key finding of the analysis concerns the legal uncertainty in connection with Article 19 (11) Market Abuse Regulation (MAR): The publication of preliminary figures may lead to the "closed period", during which managers are not permitted to conduct transactions for their own account, being brought forward (unintentionally). Companies are then faced with the challenge of creating transparency for the capital market at an early stage while at the same time ensuring liability-proof structures for members of their executive bodies.
"The market analysis of preliminary financial figures indicates a great need for clarification as to which financial figures are to be regarded as 'key figures' by ESMA and BaFin. We will work with Kirchhoff to address this need for a clear definition," explains Dominik von Zehmen, a lawyer at CMS. "Regardless of this, we recommend that companies with share ownership guidelines in particular engage a service provider to handle share acquisitions for members of the management board independently and without influence. This will allow the board members to avoid the risks associated with directors' dealings and insider law on the one hand and the administrative burden on the other. In practice, we have already structured the administration of the share ownership guidelines several times in such a way that a directors' dealings notification only has to be submitted in relation to the standing order and no further notifications are required in relation to the individual execution transactions carried out by the service provider."
Market standard required – recommendations for financial calendar and communication
The analysis also reveals that voluntary early publications are often released at short notice and without prior announcement in the financial calendar, posing a challenge for transparency and predictability. Only 41 per cent of voluntary notifications were scheduled in advance.
Jens Hecht, Managing Partner of Kirchhoff Consult GmbH, emphasises: "The analysis reveals a clear asymmetry between company size, time of publication and communication behaviour. Those who publish their audited financial statements late are more likely to rely on voluntary early disclosures. However, they often do so with an obvious communication strategy. A clear market standard is needed here."
The complete market analysis with detailed evaluations of publication behaviour as well as recommendations for capital market communication and legal protection can be downloaded below.
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