När anses insiderinformation offentliggjord? - En rättslig analys av rekvisitet ”inte har offentliggjorts” enligt artikel 7 i MAR med anledning av pågående praxisbildning

Sammanfattning

The definition of insider information in Article 7(1)(a) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (MAR) requires that a key condition be met: that the information “has not been made public”. This condition distinguishes public from non-public information, guiding the application of the prohibition of insider trading and issuers’ disclosure obligations under Article 17 MAR. Despite this, MAR provides limited guidance on when information is public, particularly when it is made available outside the formal disclosure under Article 17(1). Legal doctrine and guidance from ESMA and CESR note that de facto disclosures may mean that information falls outside the concept of insider information, though this is not established in the wording of the Regulation or in EU case law.This thesis examines, through a legal analysis, the requirement that information “has not been made public” in Article 7(1)(a) of the MAR, focusing on when information is considered public outside formal disclosure under Article 17(1) and the factors guiding this assessment. The analysis considers MAR’s objectives - preventing market abuse, ensuring fair pricing and maintaining investors’ trust in the market - using a traditional legal approach with elements of EU law and teleological interpretation, analysing legislation, case law, doctrine and ESMA and CESR guidance in the economic context of the securities market.Particular relevance is found in the Hybricon case, currently before the Swedish Supreme Court, concerning suspected insider trading. The defendants argued that information in an award decision in a public procurement, as a public document, could not be considered non-public within the meaning of MAR. This illustrates the conflict between the principle of public access and insider trading rules, creating uncertainty as to whether the requirement “not having been made public” is met. Findings indicate that the requirement cannot be understood as a purely formal requirement linked to Article 17(1) MAR. Instead, the assessment must consider whether the information has actually been made public and available to the investing public so that the market can reasonably act on it. The lack of clear case law and guidance from the Court of Justice of the European Union emphasises the need for clarification to ensure legal certainty, predictability and harmonised application of MAR. The Court’s ruling is expected to clarify the distinction between public and non-public information, providing clearer guidance for market participants and strengthening investor protection and market integrity.