Market analysis by Kirchhoff and CMS: Every fourth company in the DAX160 voluntarily publishes preliminary figures

• Small caps in particular use preliminary financial figures as a capital market communication tool
• Preliminary figures entail legal risks, e.g. regarding the closed period under MAR
• Only 41% of voluntary advance announcements were announced in the financial calendar

The Hamburg-based communications and strategy consultancy for financial communications and ESG Kirchhoff Consult, together with the corporate law firm CMS have jointly presented a current market analysis of the publication behavior of listed companies in the DAX160. The analysis shows: One in four companies voluntarily publishes preliminary financial figures - often beyond regulatory obligations, but not without legal pitfalls.

The study analyzes the behavior of all 160 DAX, MDAX and SDAX companies with regard to preliminary financial figures for the 2024 financial year. 44 companies (27.5%) communicated preliminary figures voluntarily - i.e. without ad hoc reasons. It is striking that small caps in particular use this form of capital market communication.

Market standard required - recommendations for financial calendar and communication

The analysis also reveals that voluntary pre-publications are often made at short notice and without prior announcement in the financial calendar – a challenge for transparency and predictability. Only 41 percent of voluntary announcements were scheduled in advance.

Jens Hecht, Managing Partner of Kirchhoff Consult GmbH, emphasizes: "The analysis reveals a clear asymmetry between company size, timing of publication, and communication behavior. Companies that publish their audited financial statements late are more likely to use voluntary preliminary disclosures. However, these are often made without a discernible communication strategy. A clear market standard is needed here."

Legal uncertainty regarding closed periods

A key finding of the analysis concerns the legal uncertainty in connection with Art. 19 para. 11 MAR: the publication of preliminary figures can lead to an (unintentional) bringing forward of the so-called "closed period", during which managers are not permitted to engage in proprietary trading. Companies are faced with the challenge of creating transparency for the capital market at an early stage while also ensuring liability-proof structures for their board members.

"The market analysis of preliminary financial figures shows a great need for clarification as to which financial figures are to be regarded as 'key figures' in the opinion of ESMA and BaFin. Together with Kirchhoff, we will address this need for a clear definition," explains Dominik von Zehmen, lawyer at CMS. " Regardless of this, we recommend that companies with share ownership guidelines in particular engage a service provider who will handle the share purchases for the members of the management board independently and without influence. On the one hand, this allows board members to avoid the risks associated with directors' dealings and insider trading law and, on the other hand, the administrative effort. 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 further notifications in relation to the individual execution transactions carried out by the service provider can be omitted."

The complete market analysis with detailed evaluations of publication behavior as well as recommendations for capital market communication and legal protection can be found here.