The current situation with respect to US tariffs is evolving on a weekly basis and is subject to change. The impact of any US tariffs will be different for each organisation depending on their industry and circumstances.

However, all Irish incorporated listed companies must be prepared to comply with their ongoing disclosure obligations in this uncertain environment, and should be aware of the legal risks associated with disclosing incorrect or incomplete information.

To prepare for upcoming disclosures, legal and compliance teams should consider the following actions.

Impact on the organisation

The impact of tariffs on each issuer will vary widely by industry and their unique circumstances. Legal and compliance teams need to stay up to date with the fast changing regulatory and political environment. Some organisations may already be examining their supply chains and contractual relationships for the purposes of CSRD or sanctions compliance, which may provide a starting point for diligence on the impact of tariffs.

Coherent response

Issuers may also have already established working compliance teams or committees to centralise thinking, impact and response in relation to tariffs. For listed issuers, all communications and engagements with investors should be consistent with the company’s overall strategy and prior disclosures in relation to tariffs.

Internal approvals

Legal and compliance teams may be able to leverage off existing processes when considering disclosures, such as financial processes for preparation of accounts and their market abuse compliance frameworks. These teams should also consider whether specific issues need to be approved by or tabled to the Board or other committees, whether as a once-off or standing agenda item.

Half-yearly Reports

Companies with a financial year end of 31 December will be publishing their half-yearly reports for the 6 months to 30 June over the coming weeks. The issuer’s position in relation to tariffs may be relevant when preparing a number of disclosures in the half-yearly report:

• Under transparency law issuers must disclose:
  • important events that have occurred during the first 6 months of the financial year, and their impact on the financial statements; and
  • the principal risks and uncertainties for the remaining 6 months of the financial year;
• any alternative performance measures included in the half-yearly report must be prepared and presented in line with ESMA’s guidance; and
• the board’s responsibility to present a fair, balanced and understandable assessment of the company’s position and prospects under the Irish and UK Corporate Governance Codes also extends to information presented in interim reports.

MAR Disclosure Obligations

Issuers should also monitor whether the impact of tariffs could trigger a disclosure obligation under the EU Market Abuse Regulation (MAR). By way of reminder, issuers must disclose inside information (as defined under MAR) as soon as possible.

• It is important that any inside information within the organisation is dealt with in accordance with the issuer’s own MAR compliance framework.
• The Central Bank’s July 2021 review highlighted poor record-keeping around decisions on what does or does constitute inside information. Legal and compliance teams should consider whether tabling US tariffs issues to the MAR/Disclosure committee for consideration as to whether inside information exists is appropriate or required under the issuer’s MAR compliance framework.
• This is particularly important in the context of trading windows – an issuer will not exit a closed period following the issue of results if it is possession of inside information not disclosed in those results.