The recent amendment to the Market Abuse Regulation (MAR) introduced under the so-called “Listing Act” was intended to clarify uncertainties surrounding market soundings under Article 11(1) MAR. The legislative objective was to remove interpretative ambiguity and align practice across Member States.

In the Polish language version, however, the amendment has arguably produced the opposite effect.

The revised wording – where is the issue?

Following the amendment, the Polish version of Article 11(1) MAR provides that:

“Badanie rynku obejmuje przekazanie informacji przed ogłoszeniem ewentualnej transakcji w celu oceny zainteresowania potencjalnych inwestorów ewentualną transakcją i jej warunkami (…)”

The English version reads:

“A market sounding comprises the communication of information prior to the announcement of a transaction, if any, in order to gauge the interest of potential investors in a possible transaction and the conditions relating to it (…)”

At first glance, the difference appears subtle. In fact, it concerns the essence of the regulation.

A “possible transaction” or a “possible announcement”?

The interpretative question is as follows: does market sounding occur prior to the announcement of a possible transaction, or prior to a possible announcement of a transaction (if any such announcement takes place)?

This is not a semantic exercise. It has tangible regulatory and compliance implications for issuers and for entities conducting market sounding.

The English version makes it clear that a market sounding may take place before the announcement of a transaction if such an announcement occurs at all. In other words, a public announcement is not a definitional element of market sounding.

By contrast, the Polish wording shifts the emphasis to the hypothetical nature of the transaction itself (“ewentualna transakcja”), rather than clarifying that the transaction may not be followed by any formal announcement.

The legislative intent behind the listing act

The intention of the EU legislator was explicit: to ensure that the definition of market sounding also covers situations in which the communication of information is not followed by any specific announcement of a transaction.

This is confirmed by:

• point 64 of the Listing Act, which states: “The definition of market sounding should therefore also cover the communications of information not followed by any specific announcement (…)”
• The explanatory memorandum to the legislative proposal, which reiterates: “The definition of market sounding should therefore also cover the communications of information not followed by any specific announcement (…)”
• Academic commentary (including works edited by M. Ventoruzzo and S. Mock) predates the reform, which already highlighted that a transaction need not be subject to a formal announcement. ESMA itself advocated clarification in precisely this direction.

The amendment was therefore clarificatory and expansive in nature.

The effect of the translation

The Polish version appears to obscure the essence of this reform.

Referring to a “possible transaction” does not meaningfully advance the interpretation of the provision. Any transaction at a preparatory stage is, by definition, hypothetical. The reform was not intended to confirm that information may be communicated prior to a transaction that may or may not materialise. That was already implicit.

The real purpose was to confirm that market soundings fall within Article 11 MAR even where no subsequent formal announcement of the transaction is required or made.

In this respect, the Polish wording may lead to interpretative confusion and potentially flawed compliance assessments.

A broader issue: language and interpretation in EU law

This example illustrates a broader structural challenge of EU law: minor linguistic shifts across language versions may produce materially different interpretative outcomes.

Under established principles of EU law, interpretation must take into account:

• all authentic language versions,
• the context and objectives of the regulation,
• recitals and preparatory works,
• the overall regulatory framework.

In the present case, while the English version could itself be drafted with greater precision, the Polish wording risks creating an interpretation inconsistent with the ratio legis of the amendment.

Conclusion

The Listing Act sought to clarify the scope of market sounding under MAR. Yet the divergence in language versions demonstrates how translation can reintroduce uncertainty.

For capital markets practitioners, the lesson is clear: reliance on a single language version of EU legislation may be insufficient. Purpose-oriented and comparative interpretation remains essential.

In EU law, “lost in translation” is not merely a rhetorical phrase. It can become a genuine compliance risk.

This article is based on a LinkedIn post by advocate Szymon Kaczmarek.