Provisional text

delivered on 10 July 2025 (1)

Case C‑363/24

Finansinspektionen

Carnegie Investment Bank AB

(Request for a preliminary ruling from the Högsta domstolen (Supreme Court, Sweden))

( Reference for a preliminary ruling – Single market for financial services – Market abuse – Regulation (EU) No 596/2014 – Inside information – Concept – Information of a precise nature – Insider dealing and market abuse – Insider list – Email containing information about the inclusion of a person on an insider list and prohibiting the sale of a company’s financial instruments – Truthfulness and credibility of the information )

The Högsta domstolen (Supreme Court, Sweden) is being asked to rule on the appeal brought by the Finansinspektionen (Financial Supervisory Authority, Sweden) (2) against the appeal judgement acquitting a bank accused of insider dealing.

The point at issue is whether, by reason of its content, the information used by the bank can indeed be classified as inside information. Specifically, the Högsta domstolen (Supreme Court) must determine whether a communication, received by email, advising that a certain executive had been placed on a company’s insider list and that he could not sell financial instruments of that company, is sufficiently specific.

The Court of Justice has already ruled on the ‘precise nature’ of inside information, (3) as an element of the concept set out in Article 7(1) and (2) of Regulation (EU) No 596/2014. (4) There is now an opportunity to supplement that case-law.

I.Legal framework

A.European Union law

1.Regulation No 596/2014

According to Article 7 (‘Inside information’):

‘1. For the purposes of this Regulation, inside information shall comprise the following types of information:

(a)information of a precise nature, which has not been made public, relating, directly or indirectly, to one or more issuers or to one or more financial instruments, and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments;

…

2.For the purposes of paragraph 1, information shall be deemed to be of a precise nature if it indicates a set of circumstances which exists or which may reasonably be expected to come into existence, or an event which has occurred or which may reasonably be expected to occur, where it is specific enough to enable a conclusion to be drawn as to the possible effect of that set of circumstances or event on the prices of the financial instruments or the related derivative financial instrument … In this respect in the case of a protracted process that is intended to bring about, or that results in, particular circumstances or a particular event, those future circumstances or that future event, and also the intermediate steps of that process which are connected with bringing about or resulting in those future circumstances or that future event, may be deemed to be precise information.

…’

Article 8 (‘Insider dealing’) provides as follows in paragraph 1:

‘For the purposes of this Regulation, insider dealing arises where a person possesses inside information and uses that information by acquiring or disposing of, for its own account or for the account of a third party, directly or indirectly, financial instruments to which that information relates. …’

Article 14 (‘Prohibition of insider dealing and of unlawful disclosure of inside information’) establishes that:

‘A person shall not:

(a)engage or attempt to engage in insider dealing;

(b)recommend that another person engage in insider dealing or induce another person to engage in insider dealing; or

(c)unlawfully disclose inside information.’

Article 18 (‘Insider lists’) states as follows:

‘1. Issuers or any person acting on their behalf or on their account, shall:

(a)draw up a list of all persons who have access to inside information and who are working for them under a contract of employment, or otherwise performing tasks through which they have access to inside information, such as advisers, accountants or credit rating agencies (insider list);

(b)promptly update the insider list in accordance with paragraph 4; and

(c)provide the insider list to the competent authority as soon as possible upon its request.

…’

2.Implementing Regulation 2016/347 (5)

Article 2 (‘Format for drawing up and updating the insider list’) states as follows in paragraph 4:

‘The electronic formats referred to in paragraph 3 shall at all times ensure:

(a)the confidentiality of the information included by ensuring that access to the insider list is restricted to clearly identified persons from within the issuer, emission allowance market participant, auction platform, auctioneer and auction monitor, or any person acting on their behalf or on their account that need that access due to the nature of their function or position:

(b)the accuracy of the information contained in the insider list;

(c)the access to and the retrieval of previous versions of the insider list’.

B.Swedish law. Lag (2016:1306) med kompletterande bestämmelser till EU:s marknadsmissbruksförordning (6)

Under Paragraph 5(1), the Supervisory Authority is obliged to take action against any person who has infringed the prohibition on insider dealing. Such action can be effected by imposing a fine.

According to the second subparagraph of Paragraph 1(1) of that law, the terms and expressions used have the same meaning as attributed to them by Regulation No 596/2014.

II.Facts, dispute and questions referred for a preliminary ruling

According to the description in the order for reference:

–‘At the material time, the company Varvtre AB was owned by BAK, who was then also the Chief Executive Officer and major shareholder of the listed video game development company Starbreeze AB. Varvtre had a “depository loan” with Carnegie Investment Bank AB [‘Carnegie’]. A depository loan means that the customer obtains a credit from the bank in exchange for pledging shares in the bank’s depository as collateral.

–Under the agreement for Varvtre’s depository loan, the company had a credit of 35 million kronor (SEK) in return for pledging shares in Starbreeze up to a certain value. The agreement stated that the shares in Starbreeze could only be used as collateral up to a certain level and that Carnegie had the right to terminate the credit for immediate payment if the collateral for the credit was no longer adequate. In such circumstances, Carnegie also had the right to use the pledge deposit as it saw fit.

–On account of a fall in the price of Starbreeze shares, Varvtre’s credit with Carnegie became over-indebted. On 14 November 2018, the over-indebtedness amounted to approximately SEK 5 million. The following day, a sale of Starbreeze shares was initiated. (7)

–At 13:32 on 15 November, the head of communications at Starbreeze, who also assisted BAK and Varvtre in their dealings with Carnegie, sent an email to Carnegie stating that BAK had been logged on Starbreeze’s transparency register and could not sell after 13:33. At 13:35, an insider list was opened at Starbreeze and at 13:37, BAK was registered in that list. Carnegie has argued that the information in the message was not correct because BAK had not yet been included in the insider list when the email was sent.

–According to the head of communications, the reason why BAK was included in the insider list was that he had been informed that Starbreeze’s Chief Financial Officer had resigned. However, the email sent to Carnegie did not contain any information regarding the reason for BAK’s inclusion in the insider list. Carnegie has asserted that the assessment that the resignation constituted inside information was not correct. According to Carnegie, there was no other information which related directly or indirectly to Starbreeze and which constituted inside information.

–After Carnegie received the email on 15 November, the sale of Starbreeze shares that had been initiated that morning was suspended. The sale was then resumed in the afternoon by Carnegie. A total of just over SEK 16 million worth of shares was sold after receipt of the email and up to and including 19 November. (8) For Varvtre, the disposal meant a loss limitation of approximately SEK 4.9 million.

–On 23 November, Starbreeze issued a press release stating, inter alia, that the company’s sales revenue was lower than expected and that the company’s CFO no longer held that post’.

The Supervisory Authority brought an action against Carnegie, requesting that the bank be ordered to pay a fine for having infringed the prohibition against insider dealing laid down in Articles 8 and 14 of Regulation No 596/2014.

In support of its action, the Supervisory Authority argued that the information contained in the email received from Starbreeze’s head of communications had provided Carnegie with access to inside information at the time of the sale of the Starbreeze shares, which was subsequently carried out in performance of the loan agreement.

The Tingsrätt (District Court, Sweden) upheld the action. In the view of the Tingsrätt (District Court), the information in the email could only be interpreted as meaning that there was negative financial information in respect of Starbreeze that was unfavourable. Based on that information, it was possible to draw conclusions as to the potential effect on the price of Starbreeze shares, regardless of the precise information that had led to the insider list being drawn up.

The Hovrätt (Court of Appeal, Sweden) dismissed the judgment at first instance, considering that the information in the email did not constitute inside information. The content of that email was not such as to enable the recipient to understand why BAK had inside information and was prohibited from selling. Nor could the recipient have known that the information was likely to influence the share price. The content of the email should be categorised, rather, as vague or general and thus not precise in nature.

The Högsta domstolen (Supreme Court) has declared the appeal on a point of law against the appeal judgment admissible. Before giving its ruling, it has referred the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Can a communication that a particular person has been included in an insider list and is prevented from selling shares in an issuer be of a sufficiently specific nature to constitute inside information under Article 7(2) of [Regulation No 596/2014], even if the reasons for the person’s inclusion are not clear?

(2)If that is the case, then under what conditions?

(3)Is it relevant to the assessment of whether a communication of the kind referred to in Question 1 constitutes inside information, if the issuer’s assessment that the circumstances which led to the person’s inclusion in the insider list constituted inside information was correct?

(4)Is it relevant to the assessment of whether a communication such as that referred to in Question 1 constitutes inside information, if the information contained in the communication was correct?’

III.Procedure before the Court

The request for a preliminary ruling was received at the Court on 17 May 2024.

Written observations were submitted by Carnegie, by the Supervisory Authority, by the German, Finnish and Norwegian Governments, and by the European Commission.

The Supervisory Authority, Carnegie and the Commission were present at the hearing on 21 May 2025.

IV.Assessment

A.First and second questions referred

By the first and second questions, which can be answered together, the referring court wishes to know whether, and under what conditions, a communication such as the one at issue in this case is of a sufficiently ‘specific’ nature to qualify as inside information within the meaning of Article 7(2) of Regulation No 596/2014. (9)

I should note that, by means of that communication, an executive of the listed company Starbreeze sent an email to Carnegie informing it that BAK, Starbreeze’s Chief Executive Officer and major shareholder, had been placed on the insider list (transparency register) of that company and could not sell the company’s shares.

According to the definition in Article 7(1)(a) of Regulation [No 596/2014], inside information comprises four essential elements that are ‘mutually independent and constitute minimum conditions, each of which must be met if information is to be regarded as “inside” information’. (10) Thus, this information:

–must be ‘of a precise nature’;

–must not be ‘made public’;

–relates ‘directly or indirectly, to one or more issuers of financial instruments or to one or more financial instruments’;

–if it were made public, ‘would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments’. (11)

The referring court’s doubts relate to the first of the above requirements (the ‘precise nature’ of the information). (12) However, this requirement is inseparable (13) from the price sensitivity requirement, the scope of which is clarified in Article 7(4) of Regulation No 596/2014, which states that this is ‘information a reasonable investor would be likely to use as part of the basis of his or her investment decisions’.

The referring court is aware of and cites (as stated in the order for reference) the case-law of the Court in the judgments in Lafonta and in Autorité des marchés financiers. It argues, however, that that case-law does not directly address the problems linked to the inclusion of a person on the insider lists referred to in Regulation No 596/2014. In its view, ‘the function and special position of insider lists in the scheme … could justify treating information relating to such a list differently from other information’. (14)

To answer the first two questions, we must begin the analysis with the provisions of Regulation No 596/2014 (and its implementing texts) concerning insider lists, as an instrument intended to prevent market abuse practices. (15)

1.Insider lists

Article 18 of Regulation No 596/2014:

–Obliges ‘issuers and any person acting on their behalf or on their account’ to ‘draw up a list of all persons who have access to inside information and who are working for them under a contract of employment, or otherwise performing tasks through which they have access to inside information, such as advisers, accountants or credit rating agencies (insider list)’ (point (a) of paragraph 1). (16)

–Provides that the lists must include at least the following information: the identity of any person having access to inside information; the reason for including that person in the insider list; the date and time at which that person obtained access to inside information; and the date on which the insider list was drawn up (paragraph 3).

–Includes a special regime for issuers whose financial instruments are admitted to trading on an SME growth market, which exempts them from drawing up an insider list, provided that they meet certain conditions (paragraph 6). (17)

27.Implementing Regulation 2016/347, which is applicable ratione temporis to the facts of the dispute, which occurred in November 2018, lays down the model for the electronic format of the insider lists, in order to ensure that they are confidential at all times and that the information they contain is accurate (Article 2(4)).

28.In terms of content, insider lists should be divided into separate sections, which are opened on the basis of a specific piece of inside information. In addition, a list of those who (within the issuer’s circle) have permanent access to inside information may be created as a ‘supplementary section’. (18) This would avoid multiple entries in respect of the same individuals in different sections of the insider lists.

29.Insider lists ‘are an important tool for regulators when investigating possible market abuse’ and, at the same time, ‘a valuable measure for protecting market integrity’, as ‘a useful tool for competent authorities to identify any person who has access to inside information and the date on which they gained access’. (19)

2.The precise nature of inside information

30.Article 7(2) of Regulation No 596/2014 details when information is to be considered to be of a ‘precise nature’. The Court’s judgments on the matter must, of course, be taken into account in interpreting this concept. (20)

31.Information is of a precise nature if it meets two cumulative requirements listed in the provision in question:

–it must relate to ‘a set of circumstances which exists or which may reasonably be expected to come into existence, or an event which has occurred or which may reasonably be expected to occur’, and

–it must be ‘specific enough to enable a conclusion to be drawn as to the possible effect of that set of circumstances or event on the prices of the financial instruments or the related derivative financial instrument’.

32.In terms of the first requirement, concerning the materiality of the information, (21) I understand that this criterion is met in a case such as this, because the email sent to the bank provided notification of the inclusion of an executive on a company’s insider list and stated that he could not sell shares of that issuer. This was therefore an event which has occurred. (22)

33.The second requirement – concerning the specificity of the information – is more difficult, and the Swedish courts and those involved in the request for a preliminary ruling have been divided in this case on whether this exists:

–Carnegie, the Finnish Government and the Commission consider that the information contained in the email (inclusion on a company’s insider list of an executive who is prohibited from selling shares) was not sufficiently precise to constitute inside information. In their view, which coincides with that of the Hovrätt (Court of Appeal, Sweden), that information did not make it possible for the investor receiving it to know the reasons for inclusion on the insider list and thus to assess its impact on the company’s share price.

–Conversely, the Supervisory Authority and the German and Norwegian Governments, like the Swedish Court of First Instance, consider that this was precise information, of a negative nature, which enabled an investor to buy or sell the company’s securities on more favourable terms than other investors.

34.Based on the case-law of the Court and according to the meaning commonly attributed to the terms of Article 7(2) of Regulation No 596/2014, (23) it can be inferred that the concept of ‘inside information’ does not include information where, because it is ‘vague or general … it is impossible to draw a conclusion as regards its possible effect on the prices of the financial instruments concerned’. (24)

35.The Court has held that the precise nature of information is closely linked to its subject matter because, without the necessary degree of precision, that information would not enable any conclusions to be drawn as to the possible effect on the prices of the financial instruments concerned. A case-by-case examination is necessary and it cannot be ruled out on principle that information may be regarded as being of a precise nature merely because it falls within a particular category of information. (25)

36.According to the Court, that interpretation is in line with the objective of Regulation No 596/2014, which is to protect the integrity of EU financial markets and to enhance investor confidence in those markets. Such confidence depends, inter alia, on investors being placed on an equal footing and being protected against the improper use of inside information. (26)

37.There is therefore a close link between the requirement of precision and the requirement of influence on the price: both must be present for information to be considered inside information. (27) It is difficult to imagine that vague and general information could have an impact on the price of financial instruments. Even if we were to assume that, in theory, non-specific information can have an influence on the price, ‘the fact remains that a reasonable investor generally bases his or her investment decisions on information that has a certain degree of precision’. (28)

38.In any case, I would stress, the analysis of the precision of the information must be supplemented by an analysis of the impact on the share price in each individual case: this is the only way to determine whether information is inside information within the meaning of Article 7(1) of Regulation No 596/2014.

39.Against this background, I am of the opinion that communicating the mere inclusion of a person on the insider list, as a reflection of the obligation incumbent on issuers of financial instruments, does not necessarily influence the (share) price of those instruments.

40.In principle, such a communication without any further addition (specifically, without a description of the reasons that led to the inclusion of the person on the insider list) cannot therefore be classified as inside information, because:

–It is neutral from the perspective we are dealing with here, or at least has no negative connotation: it simply reveals that the issuer complies with the legal duty to keep and constantly update a list of persons within or related to its company who have access to inside information.

–It does not allow the recipient of the email to know why that person has been included on the insider list and therefore to assess what impact it will have on the share price.

–It does not provide a reasonable rationale (and not through assumptions lacking any basis in the communication itself) to link the person’s inclusion with any underlying inside information.

41.However, it cannot be ruled out that the communication, by email, of the fact that a particular person has been included on the issuer’s insider list, accompanied by other information, could, depending on the specific situation in each case, mean that the recipient of that information could take advantage of it to buy or sell shares, placing him or her at an advantage over other investors.

42.It is for the referring court to decide whether, in view of the circumstances of the case before it and, in particular, the content of the communication sent to Carnegie, the balance leans one way or the other. The Court cannot replace that court in its assessment, but it can provide it with some guidelines to help it in its decision.

43.In the first place, inside information could be involved if such a communication – in addition to advising of the inclusion of the executive of a company on its insider list and the prohibition on that executive selling financial instruments of the same company – were to mention (or reasonably make it possible to infer) (29) the reasons supporting both decisions, when they reveal certain unfavourable information that is hidden from the rest of the market.

44.Indeed, an investor receiving a communication with such content would be able to make more informed decisions about the company’s financial instruments compared to other investors. By the same token, such an investor would enjoy a privileged position that allows him or her to distort free competition on the financial markets. In this case, therefore, it would be possible to consider this to be inside information.

45.In the same way, the degree of precision of such a communication is reduced when it does not contain any mention of the reasons for the inclusion of a person on a company’s insider list. An investor receiving such a communication is unlikely to be able to draw from it any conclusions that would allow him or her to trade to his or her advantage on the capital markets by buying or selling financial instruments of that company.

46.In the second place, when the communication advising of the inclusion of an executive on the insider list is accompanied, as is the case here, by the additional information that the insider cannot sell the company’s securities, the level of precision of the information increases, but not to the extent that it can thereby be classified as inside information.

47.The Supervisory Authority and the German and Norwegian Governments argue that the prohibition on the sale of the company’s financial instruments, but not on their purchase, allows the investor receiving the communication to conclude that there are negative facts about the position of that company. Such an investor would thus be in an advantageous position compared to other investors who do not have this information, in terms of acting accordingly on the capital markets.

48.Once again, everything will depend on the conclusions drawn by the referring court from the communication sent to the bank. In my view, the information that the insider was prohibited from selling shares in the company does not add a great deal to the fact that the executive in question had been included on the insider list: in principle, and without prejudice to Article 19 of Regulation No 596/2014, an insider included on an insider list must not trade the financial instruments in respect of which he or she has inside information.

49.In the third place, it is necessary to discern the reasons that prompted the Starbreeze executive to send the disputed email to the bank. Based on the assumption that the information contained in the insider list is confidential and should not be made public to third parties (Article 2(4)(a) of Implementing Regulation 2016/347), its disclosure to Carnegie could lead to the conclusion that the purpose of that communication was to bring confidential information to the attention of the bank, precisely in order to give it an advantage in the trading of Starbreeze’s financial instruments. The motive, however, could also have been the opposite, intended to prevent the sale of those financial instruments. (30)

50.Article 2(4)(a) of Implementing Regulation 2016/347 states that ‘access to the insider list is restricted to clearly identified persons from within the issuer … that need that access due to the nature of their function or position’. It is not clear from the order for reference why Starbreeze violated this rule and what conclusions could be drawn from its conduct, (31) in terms of providing the bank with information that it could use to its advantage.

51.In the fourth place and finally, the referring court will be able to consider whether the email made it possible to draw the inference that the inclusion of the Starbreeze executive on the insider list had been made in the ‘permanent insider’ section or in one of the sections concerning specific inside information (for each transaction).

52.Obtaining this clarification could be useful, as inclusion in the permanent insiders section provides, in itself, less information: by default, the company’s top executives with the most senior management functions and responsibilities, who are usually involved in making the most important decisions for that company and therefore have general access to inside information, will be included in this section.

53.By the same token, a third party who receives the news that a senior executive of a company has been included in the permanent insider section would find it difficult to infer from this fact any consequences for the price of that company’s financial instruments.

54.In short, the mere communication that a company executive has been included on the insider list is, in principle, not sufficiently precise to qualify as inside information. However, the information contained in a communication about the inclusion of an executive on the insider list with a prohibition on selling financial instruments could be sufficiently precise to qualify as inside information only if it can be shown to be capable of objectively influencing the price of the financial instruments concerned in such a way that the recipient derives a benefit from that information that places him or her in a more favourable position compared to other investors in terms of trading in those financial instruments.

55.It is for the referring court to carry out this assessment in the case before it.

B.Third and fourth questions referred

56.By its third and fourth questions, which can also be answered together, the referring court wishes to know whether, in order to determine whether the communication at issue in this case constitutes inside information, it is relevant whether the following are ‘correct’:

–‘the issuer’s assessment that the circumstances which led to the person’s inclusion in the insider list constituted inside information’ (third question) and

–‘the information contained in the communication’ (fourth question).

57.In the context of these questions, I understand ‘correct’ to mean that the issuer’s assessment is accurate and that the information received is ‘truthful’. In turn, information is truthful if the fact it describes corresponds to reality (it is not a false or fictitious fact). For the reasons set out below, I believe that what is decisive is not whether the information is truthful, but whether it is credible.

58.In the same context, a distinction should be made between the accuracy of the information contained in the insider lists and the truthfulness and credibility of the information contained in the communication that, in this case, the issuer sent to the bank. The obligation of accuracy referred to in Article 2(4) of Implementing Regulation 2016/347 is limited to the information contained in the insider lists.

59.The order for reference is not very explicit in stating the reasons for these two questions. (32) Everything seems to indicate that these are related to the arguments used by Carnegie in its defence: the email about BAK’s inclusion on Starbreeze’s insider list (and about the prohibition on selling that company’s financial instruments), in addition to not stating the reasons for the inclusion, was based on false information, because the inclusion on the list had not yet taken place (although it did shortly afterwards).

60.In principle, the truthfulness of the information to be classified as inside information is not a requirement that falls within the exhaustive scope of Article 7(1)(a) of Regulation No 596/2014. However, it could be argued that this is an implicit requirement, inherent to the rest of the requirements set out in that provision.

61.The relevance of the truthfulness of information need only be questioned when it is sufficiently precise to have an impact on the price of the financial instruments. I have already argued that, in the case of vague or general information, it is not necessary to determine whether it is truthful, as it simply lacks the minimum elements capable of having an impact on the price of the financial instruments.

62.If the information of a precise nature is also truthful and meets the other conditions of Article 7(1)(a) of Regulation No 596/2014, it is indeed inside information. But what happens when this information is later revealed to be false or unconfirmed?

63.I should note that, according to Article 7(2) of Regulation No 596/2014, information is precise if it fulfils the requirement of indicating ‘a set of circumstances which exists or which may reasonably be expected to come into existence, or an event which has occurred or which may reasonably be expected to occur’. The Court has held that this requirement refers to future circumstances or events from which it appears, on the basis of an overall assessment of the factors existing at the relevant time, that there is a realistic prospect that they will come into existence or occur. However, that notion should not be interpreted as meaning that the magnitude of the effect of that set of circumstances or that event on the prices of the financial instruments concerned must be taken into consideration. (33)

64.Therefore, the literal wording of this provision and the Court’s interpretation lead to the conclusion that the precise information must at least have a certain degree of credibility in order to be classified as inside information, (34) which means there must be a reasonable likelihood that it will occur. (35) Mere unsubstantiated rumours lack this quality and are not precise enough to generate inside information. (36)

65.The assessment of credibility rests with the investor receiving the information. It is for that person to decide whether ‘a set of circumstances … exists or … may reasonably be expected to come into existence’, or whether it is ‘an event which has occurred or which may reasonably be expected to occur’, to use again the terms of Article 7(2) of Regulation No 596/2014. This is an ex ante assessment carried out at the time the information is used and takes into account its precision and credibility and its influence on the price of the financial instruments. (37)

66.The facts or circumstances referred to in that rule may be either certain and already occurred or merely future, but reasonably likely to occur.

66.In the case of reasonably foreseeable future circumstances or future events, the information contained in such circumstances or events may qualify as inside information irrespective of whether those circumstances and events are confirmed ex post. (38) I should repeat that what is decisive is that they have enabled the investor, at the time when the information was used, to take decisions about financial instruments from a position of advantage over other investors.

67.This reading accords with the broad interpretation of the concept of inside information given by the Court, in line with the purpose of Regulation No 596/2014. Limiting this concept exclusively to unpublished and precise information that is subsequently corroborated by the facts would run counter to that purpose.

68.The Court has held that ‘the actual effect of a publication on the price of the securities referred to in that publication may constitute ex post evidence of the precise nature of the information relating to that publication. However, it is not sufficient, in itself, to establish that precise nature, in the absence of an examination of other factors known or disclosed prior to that publication’. (39)

69.I agree with the Commission (40) that it is compatible with the purpose of Regulation No 596/2014 for the classification of inside information to include information that has not yet been made public but, if known, could at a given moment have an appreciable effect on the price of financial instruments, even if it is subsequently revealed to be false or incorrect.

70.The lack of truthfulness is therefore no obstacle to the insider having an advantage over other investors who are unaware of the information, through credible but subsequently unconfirmed information, in terms of acting in the financial markets.

71.Applying these considerations to the present case, the referring court will have to assess whether the content of the communication sent to the bank was at least credible. For these purposes, I understand that it is irrelevant that the actual inclusion of the Starbreeze executive on that company’s insider list took place a few minutes after 13:32 on 15 November 2018 (when the email was sent), at 13:37 on the same day. There was at least a presumption of truthfulness of this information, which Starbreeze’s head of communications brought to Carnegie’s attention.

72.However, the fact that the information (limited to the simple inclusion of an executive on a company’s insider list, with a prohibition on the sale of financial instruments) was credible does not imply that anything could reasonably be inferred from it other than speculation about the motives underlying that inclusion but not stated in the message.

73.Such an email could be described as credible in terms of its content, but that quality does not extend to any resulting speculation by the recipient, quite independently and without any objective basis being provided in the message.

74.If that communication does not include the issuer’s reasons for listing BAK as an insider, it is irrelevant whether those reasons are based on the issuer’s own correct or incorrect assessment. From the point of view of the recipient of the email to whom such reasons are not disclosed, it matters little whether they correspond to certain or uncertain facts.

75.To determine whether the information contained in a communication as described above can be classified as inside information, it is sufficient that – having met the other requirements of Article 7(2) of Regulation No 596/2014 – its content is credible, even if it is subsequently revealed to be erroneous, provided that the recipient is likely to derive a benefit from that information through being placed in a more favourable position than other investors in trading in financial instruments.

V.Conclusion

76.In the light of the above, I propose that the response to the Högsta domstolen (Supreme Court, Sweden) should be as follows:

Article 7(2) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC

must be interpreted as meaning that the mere communication that a company executive has been included on the insider list is, in principle, not sufficiently precise to qualify as inside information. However, the information contained in a communication about the inclusion of an executive on the insider list with a prohibition on selling financial instruments could be sufficiently precise to qualify as inside information only if it can be shown to be capable of objectively influencing the price of the financial instruments concerned in such a way that the recipient derives a benefit from that information that places him or her in a more favourable position compared to other investors in terms of trading in those financial instruments.

For the information sent to an investor in a communication such as that described to be classified as inside information, it is sufficient that – having met the other requirements of Article 7(2) of Regulation No 596/2014 – its content is credible, even if it is subsequently revealed to be erroneous, provided that the recipient is likely to derive a benefit from that information through being placed in a more favourable position than other investors in trading in financial instruments.

—

1Original language: Spanish.

2‘The Supervisory Authority’.

3Judgments of 11 March 2015, Lafonta (C‑628/13, EU:C:2015:162; ‘the judgment in Lafonta’), paragraph 27, and of 15 March 2022, Autorité des marchés financiers (C‑302/20, EU:C:2022:190; ‘the judgment in Autorité des marchés financiers’), paragraph 33.

4Regulation of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ 2014 L 173, p. 1). The version of Regulation No 596/2014 applicable to the facts of this case is the version resulting from the amendments made to that regulation by Regulation (EU) 2016/1033 of the European Parliament and of the Council of 23 June 2016 (OJ 2016 L 175, p. 1).

5Commission Implementing Regulation of 10 March 2016 laying down implementing technical standards with regard to the precise format of insider lists and for updating insider lists in accordance with Regulation (EU) No 596/2014 of the European Parliament and of the Council (OJ 2016 L 65, p. 49). This has been repealed by Commission Implementing Regulation (EU) 2022/1210 of 13 July 2022 laying down implementing technical standards for the application of Regulation (EU) No 596/2014 of the European Parliament and of the Council with regard to the format of insider lists and their updates (OJ 2022 L 187, p. 23).

6Law No 1306 of 2016 supplementing the EU market abuse regulation.

7Carnegie stated at the hearing that the sales on the morning of 15 November had been authorised by BAK, following Carnegie’s threat to initiate a forced sale of those shares in performance of the loan agreement.

8Carnegie stated at the hearing that, after receiving the email, its management assessed the situation and decided, on the afternoon of 15 November 2018, to activate the sale of BAK’s shares in Starbreeze, in performance of the loan agreement. The sale was carried out gradually, over several sessions, so as not to cause the share price to plummet.

9The Spanish-language version of the text uses the phrase ‘información de carácter concreto’, which seems to coincide with the Dutch-language version (‘informatie die concreet is’). Other language versions refer instead to ‘precise nature’: French (‘information à caractère précis’), German (‘präzise Informationen’), Italian (‘informazione avente un carattere preciso’), Portuguese (‘informação com caráter preciso’), Romanian (‘informații cu caracter precis’) and English (‘information of a precise nature’). The Swedish-language version uses the expression ‘Information av specifik natur’. For my part, I will use the terms ‘specific’ and ‘precise’ interchangeably as synonyms in this Opinion.

10The judgment in Lafonta, paragraphs 24 and 28 and the judgment in Autorité des marchés financiers, paragraph 33.

11Annunziata, F., Artificial Intelligence and Market Abuse Legislation. A European Perspective, Edward Elgar Publishing, London, 2023, p. 15, indicates that these elements of the concept of inside information can be summarised as three points: non-public nature, precision and price-sensitivity.

12See Lehmann, M. and Kumpan, C., European Financial Services Law. Article-by-Article Commentary, Nomos, Baden-Baden, 2019; Veil, R., ‘Insider Dealing’, in Veil, R., (ed.), European Capital Markets Law, 3rd ed., Hart Publishing, 2022, pp. 189 to 227; Ventoruzzo, M. and Picciau, C., ‘Article 7: Inside Information’, in Ventoruzzo, M. and Mock, S., (eds.), Market Abuse Regulation. Commentary and Annotated Guide, 2nd ed., Oxford University Press, 2022, pp. 259 to 292.

13The judgment in Autorité des marchés financiers, paragraph 36.

14Order for reference, paragraph 21.

15See, in that regard, Drummond, F., Droit financier. Les institutions, les activités, les abus de marché, Economica, Paris, 2020, pp. 509 to 522; Juan y Mateu, F., ‘Las listas de iniciados’, Revista de derecho bancario y bursátil, No 153, 2019, pp. 107 to 134.; Rath, U., ‘Article 18: Insider Lists’, and Hössl-Neumann, M. and Torggler, U., ‘Article 7: Inside Information’, in Kalss, S., Oppitz, M., Torggler, U., and Winner, M., (eds.), EU Market Abuse Regulation. A Commentary on Regulation (EU) No 596/2014, Edward Elgar, 2021, pp. 242 to 259 and pp. 55 to 80, respectively.

16The lists, which are required to be updated in accordance with Article 18(4), will therefore include both ‘insiders’ (linked to the issuer by an employment or business relationship) and ‘outsiders’ (usually professional service providers related to the issuer).

17The specific regime for SMEs has been amended in subsequent versions of Regulation No 596/2014, which are not applicable ratione temporis to the main proceedings, as a result of changes introduced by Regulation (EU) 2019/2115 of the European Parliament and of the Council of 27 November 2019 (OJ 2019 L 320, p. 1), itself amended by Regulation (EU) 2024/2809 of the European Parliament and of the Council of 23 October 2024 (OJ L, 2024/2809), known as the Listing Act.

18Recital 4 and Article 2(2) of Implementing Regulation 2016/347. This reference has disappeared in Implementing Regulation 2022/1210, which now refers to the ‘permanent insiders section of insider lists’.

19Recitals 56 and 57 of Regulation No 596/2014. The first of these two provisions acknowledges that the requirement to keep and constantly update these lists imposes ‘administrative burdens’. For this reason, some authors question their usefulness and stress that they are only valuable if they include the real insiders and not large numbers of individuals. See Moloney, N., EU Securities and Financial Markets Regulation, 3rd ed., Oxford University Press, 2014, p. 737.

20In addition to the judgments in Lafonta and in Autorité des marchés financiers, see those of 28 June 2012, Geltl (C‑19/11, EU:C:2012:397); of 23 December 2009, Spector Photo Group and Van Raemdonck (C‑45/08, EU:C:2009:806); and of 22 November 2005, Grøngaard and Bang (C‑384/02, EU:C:2005:708).

21The requirements relating to the precise nature of the information are referred to as materiality and specificity of the information by Muller, A.-C., Droit financier. Les opérations de marché. L’introduction en bourse et ses conséquences. Les transactions. Les offres publiques d'acquisition, Economica, Paris, 2023, pp. 270 to 284.

22Subject to what will be seen later as to its truthfulness.

23This case-law referred to the similar Article 1(1) of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC of the European Parliament and of the Council as regards the definition and public disclosure of inside information and the definition of market manipulation (OJ 2003 L 339, p. 70), the predecessor of Regulation No 596/2014.

24The judgment in Lafonta, paragraph 31, and the judgment in Autorité des marchés financiers, paragraph 38.

25The judgment in Autorité des marchés financiers, paragraphs 41 and 42.

26The judgment in Autorité des marchés financiers, paragraph 43: ‘the purpose of the prohibition … is to ensure equality between the contracting parties in stock-market transactions by preventing one of them who possesses inside information and who is, therefore, in an advantageous position vis-à-vis other investors, from profiting from that information, to the detriment of those who are unaware of it’.

27Klöhn, L., ‘Financial journalism, unlawful disclosure of inside information and freedom of press: Mr A v. Autorité des marches financiers’, Common Market Law Review, Vol. 60, No 2, 2023, p. 560; Hössl-Neumann, M. and Torggler, U., ‘Article 7: Inside Information’, in Kalss, S., Oppitz, M., Torggler, U. and Winner, M., (eds.), EU Market Abuse Regulation. A Commentary on Regulation (EU) No 596/2014, Edward Elgar, 2021, p. 69.

28Opinion of Advocate General Kokott in Autorité des marchés financiers (C‑302/20, EU:C:2021:747, point 58).

29In paragraph 19 of the order for reference, the referring court asks whether it is sufficient that ‘the recipient of the information must also have been able to comprehend the underlying circumstances which led to the person being included on the insider list’. Emphasis added.

30Carnegie alleged at the hearing that the sending of the email was a ploy by Starbreeze (of which BAK was a major shareholder and Chief Executive Officer) to stall the sale of the shares after BAK himself had consented to that sale, under pressure from Carnegie, during the morning of 15 November 2018.

31As suggested by the Commission at the hearing, the act of sending an email containing confidential information about the inclusion of a person on the insider list could constitute an breach of Article 2(4)(a) of Implementing Regulation 2016/347, punishable under Article 30(1)(a) of Regulation No 596/2014, irrespective of whether it lacks the necessary precision to constitute inside information.

32See the order for reference, paragraph 20, which refers to the ‘related question’ concerning the issuer’s assessment.

33Judgment of 28 June 2012, Geltl (C‑19/11, EU:C:2012:397, paragraph 56).

See the document from the Committee of European Securities Regulators, Market Abuse Directive – Level 3 – Second set of CESR guidance and information on the common operation of the Directive to the market (CESR/06-562b), July 2007, paragraph 1.5, available at https://www.esma.europa.eu/sites/default/files/library/2015/11/06_562b.pdf.

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35Drummond, F., Droit financier. Les institutions, les activités, les abus de marché, Economica, París, 2020, pp. 917 to 919.

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36See Lehmann, M. and Kumpan, C., European Financial Services Law: Article-by-Article Commentary, Nomos, Baden-Baden, 2019, p. 679; Ventoruzzo, M. and Picciau, C., ‘Article 7: Inside Information’, in Ventoruzzo, M. and Mock, S., (eds.), Market Abuse Regulation. Commentary and Annotated Guide, 2nd ed., Oxford University Press, 2022, p. 276.

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37Recital 14 of Regulation No 596/2014 states that reasonable investors base their investment decisions on ex ante available information and that any assessment should take into consideration the anticipated impact of the information in the light of the totality of the related issuer’s activity, the reliability of the source of information and any other market variables likely to affect the financial instruments in the given circumstances.

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38According to recital 15 of Regulation No 596/2014, ‘ex post information can be used to check the presumption that the ex ante information was price sensitive, but should not be used to take action against persons who drew reasonable conclusions from ex ante information available to them.’

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39The judgment in Autorité des marchés financiers, paragraph 56.

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40Written observations of the Commission, paragraph 49.