Market Abuse Regulation: The records you need when a regulator asks

The Market Abuse Regulation is about conduct: insider dealing, the unlawful disclosure of inside information, and market manipulation. MiFID II creates much of the communications archive. MAR is where that archive can become evidence.

MAR’s recordkeeping requirements are specific. Firms need to document the reasoning behind STOR decisions, maintain the required records for market soundings, and keep insider lists.

The general duty to record communications comes from elsewhere, mainly MiFID II Article 16(7). MAR adds Article 23(2)(g), which gives competent authorities the power “to require existing recordings of telephone conversations, electronic communications or data traffic records held by investment firms, credit institutions or financial institutions.”

At a Glance

Article 16: The Record Behind Each STOR Decision

Article 16(2) applies to “any person professionally arranging or executing transactions.” That person “shall establish and maintain effective arrangements, systems and procedures to detect and report suspicious orders and transactions,” and on reasonable suspicion, notify the competent authority without delay.

Delegated Regulation 2016/957 sets out how. Article 3(8) requires firms to keep, for five years, “the information documenting the analysis carried out with regard to orders and transactions” that were examined, “and the reasons for submitting or not submitting a STOR.” A decision not to file is a record too.

The regulation requires monitoring “of all orders received and transmitted and all transactions executed.” It does not set a separate duty to monitor communications. Its STOR template does name “e-mails, recordings of conversations” as examples of supporting documentation, and the FCA treated missing communications surveillance as part of the Article 16(2) failure in the broker case above.

When a supervisor reviews a closed alert, the question is what the analyst saw and why they closed it. The conversation that explains a trade is part of that answer.

Market Soundings Are Conversations With a Paper Trail

A market sounding is the communication of information before a transaction is announced, to gauge potential investors’ interest in it. Under Article 11(8), the disclosing market participant keeps its sounding records for at least five years.

Since December 4, 2024, the full Article 11 procedure has been optional and gives safe-harbour protection to firms that follow it. Two record duties stay mandatory for every disclosing market participant: the written record of its assessment under Article 11(3), and the records of cleansing notices under Article 11(6).

Firms that follow the procedure work to Delegated Regulation 2016/960, and its requirements read like a communications policy:

• Recorded lines. Soundings use recorded telephone lines where the firm has them and the recipients have consented (Article 2(2)).
• Firm equipment. Staff “only use equipment provided by the disclosing market participant when sending and receiving telephone calls and electronic communications for the purposes of market soundings” (Article 2(3)).
• The correspondence itself. Records cover “all communications of information” with each recipient (Article 6(1)(d)). For written channels, the record is “a copy of the correspondence” (Article 6(2)).
• Minutes for everything else. Unrecorded calls and meetings get written minutes signed by both parties, with the date and time, the participants and the information exchanged (Article 6(3)).

Implementing Regulation 2016/959 adds that all of these records are kept in electronic format.

Insider Lists and Delay Records

Article 18 requires issuers, and anyone acting on their behalf, to draw up a list of all persons who have access to inside information and keep it for at least five years after it is drawn up or updated.

Issuers that delay disclosing inside information carry a second record duty. Under Implementing Regulation 2016/1055, they keep, on a durable medium, when the information first existed and when the delay was decided, the people responsible for the decision, and “evidence of the initial fulfilment of the conditions,” including “the information barriers which have been put in place internally and with regard to third parties.”

An insider list records who had access to inside information. When an investigator tests whether it leaked, they read what those people sent, and to whom.

The Power to Ask for Your Messages

Article 23(2)(g) lets competent authorities require existing recordings of telephone conversations, electronic communications and data traffic records held by investment firms, credit institutions and financial institutions. Since December 2024 it also reaches benchmark administrators and supervised contributors. MAR’s recital 65 calls these records “crucial, and sometimes the only, evidence to detect and prove the existence of insider dealing and market manipulation.”

Article 23(2)(h) also reaches telecommunications operators’ traffic records, but only where national law permits and there is a reasonable suspicion. In September 2022, the Court of Justice ruled that the provision does not allow “the general and indiscriminate retention of traffic data.” The records that answer a MAR investigation are mostly the ones firms keep themselves.

Channel makes no difference to the prohibition. In an October 2025 insider-dealing case, the FCA’s Final Notice rebuilt the timeline from a personal email account and WhatsApp messages.

How MAR and MiFID II Fit Together

MiFID II Article 16(7) requires investment firms to record communications relating to client orders and dealing on own account, keep them for five years, and prevent staff using equipment the firm cannot record. That is the duty that creates the archive.

MAR is the regime that most often puts that archive to use. A firm recording to the MiFID II standard is already holding what Article 23(2)(g) asks for. A firm with gaps in its MiFID II recording has the same gaps when a MAR investigation arrives.

What the Listing Act Changed

The EU Listing Act, Regulation 2024/2809, amended MAR in two stages.

• Since December 4, 2024. The market sounding procedure is optional, with safe-harbour protection for firms that follow it. The threshold for notifying managers’ transactions rose from €5,000 to €20,000 a year, and national regulators can set it between €10,000 and €50,000. Article 23(2)(g) now extends to benchmark administrators and supervised contributors.
• Since June 5, 2026. Issuers no longer disclose intermediate steps in a protracted process under Article 17, only the final circumstances or event. The condition for delaying disclosure changed from “not likely to mislead” to “not in contrast with the latest public announcement.”
• Unchanged. Five-year retention for sounding records under Article 11(8) and for insider lists under Article 18(5).

Where Comma Fits

Comma is designed against SEC 17a-4, FINRA 4511, CFTC 1.31, and MiFID II electronic-recordkeeping requirements. That is a design statement, not regulatory approval. MAR’s core duties, including surveillance of orders and transactions, the decision to file a STOR, running market soundings and keeping insider lists, belong to the firm.

The conversations behind the trade. Comma captures 40+ channels into one archive under one retention policy, so the messages a competent authority asks for under Article 23(2)(g) sit in the same place as your email. The full list is on platform integrations.

Flags a person reviews. Comma runs your policies across captured communications, such as an inside-information policy, routes matches to review queues with an escalation path, and samples the rest at a rate you set. A flag prompts human review. It is not a determination. See communications surveillance and review.

The decision and the evidence together. A reviewer can open a case from a flagged communication. The case keeps the owner, review notes and documented outcome beside the conversations it rests on, so when a communication feeds a STOR decision, the reasoning and the evidence stay together. See case management.

Sounding correspondence. Soundings run over email, chat or messaging land in the archive as the correspondence itself, in electronic format and under your retention policy.

Retention you set. Retention is measured from capture under your configured policy. The clock on STOR analysis starts later, at the decision, so a message captured months earlier can reach the end of a five-year policy first. Set retention with headroom beyond five years, or place a legal hold while a matter is open.

Production on request. Archived communications are exportable in standard formats, scoped to a custodian and a date range, when a competent authority asks.

The Practical Requirement

MAR does not ask which channels your firm archives. It asks whether you detected what you should have, documented why you filed or did not, kept your sounding and insider records, and can hand a regulator the conversations when asked.

The surveillance judgment is yours. Capture, retention and production are what an archive is for.