Opinion of the Advocate General — ECLI:EU:C:2021:747
Date: 2021-09-16
Language of the case: French
Subject matter: Right of establishment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the request for a preliminary ruling under Article 98(1) of the 
Rules of Procedure of the Court of Justice 
Date lodged: 
9 July 2020 
Referring court: 
Cour d’appel de Paris (France) 
Date of the decision to refer: 
9 July 2020 
Applicant: 
Mr A. 
Intervener: 
Autorité des marchés financiers 
  
 I. Subject matter of the main proceedings 
1 The case in the main proceedings concerns an action brought by Mr A., a financial 
journalist, against a decision of the commission des sanctions de l’Autorité des 
marchés financiers (Penalties Commission of the Financial Markets Authority; 
‘the Penalties Commission’) which ordered him to pay a financial penalty of 
EUR 40 000 for having disclosed information relating to the forthcoming 
publication, in the online newspaper that employed him, of press articles relaying 
market rumours concerning issuers of financial instruments. The Penalties 
Commission took the view that the communication of that information constituted 
an unlawful disclosure of inside information. Mr A. is seeking the annulment of 
that decision. He claims, in essence, that such a classification is incompatible with 
the nature of the profession of financial journalist. The Financial Markets 
Authority (‘the AMF’) essentially contends that that information was not 
disclosed for purposes of journalism. 
EN 
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II. Subject matter and legal basis of the request for a preliminary ruling 
2 The cour d’appel de Paris (Court of Appeal, Paris) is of the view that, in order to 
be able to give a ruling on the case in the main proceedings, it must refer to the 
Court of Justice of the European Union (‘the Court’), pursuant to Article 267 
TFEU, questions of interpretation concerning (i) the notion of ‘inside information’ 
within the meaning of the first subparagraph of Article 1(1) of Directive 
2003/6/EC of the European Parliament and of the Council of 28 January 2003 on 
insider dealing and market manipulation (market abuse), in conjunction with 
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, and (ii) the conditions for the application of 
Articles 10 and 21 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. 
III. Questions referred for a preliminary ruling 
‘(1) In the first place, 
(a) Is the first subparagraph of Article 1(1) of Directive 2003/6/EC of the 
European Parliament and of the Council of 28 January 2003 on insider 
dealing and market manipulation (market abuse), in conjunction with 
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, to be interpreted as meaning that 
information relating to the forthcoming publication of a press article relaying 
a market rumour about an issuer of financial instruments can satisfy the 
requirement of precision laid down in those articles for classification as 
inside information? 
(b) Does the fact that the press article, the forthcoming publication of 
which constitutes the information at issue, mentions — as a market 
rumour — the price of a public takeover bid affect the assessment of the 
precise nature of the information at issue? 
(c) Are the reputation of the journalist who authored the article and of the 
media outlet which published it and the genuinely significant (“ex post”) 
effect of that publication on the price of the securities to which the published 
article relates relevant factors for the purposes of assessing the precise 
nature of the information at issue? 
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(2) In the second place, if the first question is answered to the effect that 
information such as that at issue can satisfy the necessary requirement of 
precision: 
(a) Is Article 21 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 to be interpreted as meaning that the 
disclosure by a journalist, to one of his usual sources, of information relating 
to the forthcoming publication of an article authored by him relaying a 
market rumour is made “for the purpose of journalism”? 
(b) Is the answer to that question dependent on, inter alia, whether or not 
the journalist was informed of the market rumour by that source or whether 
or not the disclosure of the information on the forthcoming publication of 
the article was expedient in order to obtain clarifications from that source 
with regard to the credibility of the rumour? 
(3) In the third place, are Articles 10 and 21 of Regulation (EU) No 596/2014 to 
be interpreted as meaning that, even where inside information is disclosed by a 
journalist “for the purpose of journalism” within the meaning of Article 21, the 
lawful or unlawful nature of the disclosure requires an assessment of whether the 
disclosure was made “in the normal exercise of … [the] profession [of journalist]” 
for the purposes of Article 10? 
(4) In the fourth place, is Article 10 of Regulation (EU) No 596/2014 to be 
interpreted as meaning that, in order to occur in the normal exercise of the 
profession of journalist, the disclosure of inside information must be strictly 
necessary for the exercise of that profession and must comply with the principle of 
proportionality?’ 
IV. Legal context 
1. Provisions of EU law 
Directive 2003/6/EC of the European Parliament and of the Council of 
28 January 2003 on insider dealing and market manipulation (market abuse) 
Article 1 
‘For the purposes of this Directive: 
1. “inside information” shall mean information of a precise nature which has 
not been made public, relating, directly or indirectly, to one or more issuers of 
financial instruments or to one or more financial instruments and which, if it were 
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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. 
…’ 
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 
Recital 1 
‘Reasonable investors base their investment decisions on information already 
available to them, that is to say, on ex ante available information. Therefore, the 
question whether, in making an investment decision, a reasonable investor would 
be likely to take into account a particular piece of information should be 
appraised on the basis of the ex ante available information. Such an assessment 
has to take into consideration the anticipated impact of the information in 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 related financial 
instrument or derivative financial instrument related thereto in the given 
circumstances.’ 
Article 1 
‘Inside information 
1. For the purposes of applying point 1 of Article 1 of Directive 2003/6/EC, 
information shall be deemed to be of a precise nature if it indicates a set of 
circumstances which exists or may reasonably be expected to come into existence 
or an event which has occurred or may reasonably be expected to do so and if 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 financial instruments or related 
derivative financial instruments. 
2. For the purposes of applying point 1 of Article 1 of Directive 2003/6/EC, 
“information which, if it were made public, would be likely to have a significant 
effect on the prices of financial instruments or related derivative financial 
instruments” shall mean information a reasonable investor would be likely to use 
as part of the basis of his investment decisions.’ 
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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 (‘the 
Market Abuse Regulation’) 
Recital 77 
‘This Regulation respects the fundamental rights and observes the principles 
recognised in the Charter of Fundamental Rights of the European Union 
(Charter). Accordingly, this Regulation should be interpreted and applied in 
accordance with those rights and principles. In particular, when this Regulation 
refers to rules governing the freedom of the press and the freedom of expression in 
other media and the rules or codes governing the journalist profession, account 
should be taken of those freedoms as guaranteed in the Union and in the Member 
States and as recognised pursuant to Article 11 of the Charter and to other 
relevant provisions.’ 
Article 8(4) 
‘4. This Article applies to any person who possesses inside information as a 
result of: 
(a) being a member of the administrative, management or supervisory bodies of 
the issuer …; 
(b) having a holding in the capital of the issuer …; 
(c) having access to the information through the exercise of an employment, 
profession or duties; or 
(d) being involved in criminal activities. 
This Article also applies to any person who possesses inside information under 
circumstances other than those referred to in the first subparagraph where that 
person knows or ought to know that it is inside information.’ (emphasis added by 
the referring court) 
Article 10 
‘Unlawful disclosure of inside information 
1. For the purposes of this Regulation, unlawful disclosure of inside 
information arises where a person possesses inside information and discloses that 
information to any other person, except where the disclosure is made in the 
normal exercise of an employment, a profession or duties. 
This paragraph applies to any natural or legal person in the situations or 
circumstances referred to in Article 8(4). 
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…’ (emphasis added by the referring court) 
Article 21 
‘Disclosure or dissemination of information in the media 
For the purposes of Article 10, Article 12(1)(c) and Article 20, where information 
is disclosed or disseminated and where recommendations are produced or 
disseminated for the purpose of journalism or other form of expression in the 
media, such disclosure or dissemination of information shall be assessed taking 
into account the rules governing the freedom of the press and freedom of 
expression in other media and the rules or codes governing the journalist 
profession, unless: 
(a) the persons concerned, or persons closely associated with them, derive, 
directly or indirectly, an advantage or profits from the disclosure or the 
dissemination of the information in question; or 
(b) the disclosure or the dissemination is made with the intention of misleading 
the market as to the supply of, demand for, or price of financial 
instruments.’ (emphasis added by the referring court) 
2. National provisions 
Règlement général de l’AMF (General Regulation of the AMF; ‘the 
RGAMF’) 
3 Article 621-1 of the RGAMF provided, in the version thereof in force at the time 
of the facts: 
‘Inside information is precise information which has not been made public, 
relating, directly or indirectly, to one or more issuers of financial 
instruments 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. 
Information is to be deemed to be precise if it indicates a set of 
circumstances or an event which has occurred or may occur and if a 
conclusion may be drawn therefrom as to the possible effect of those 
circumstances or that event on the prices of financial instruments or related 
derivative financial instruments. 
Information which, if it were made public, would be likely to have a 
significant effect on the prices of financial instruments or related derivative 
financial instruments is information which a reasonable investor would be 
likely to use as one of the bases of his investment decisions.’ 
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4 Those provisions transposed the first subparagraph of Article 1(1) of Directive 
2003/6, as clarified by Article 1(1) and (2) of Directive 2003/124/EC, which were 
reproduced by Article 7(1)(a), (2) and (4) of the Market Abuse Regulation. 
5 Article 622-1 of the RGAMF provided, in the version thereof in force at the time 
of the facts: 
‘Any person referred to in Article 622-2 must refrain from using the inside 
information in his possession … He must also refrain from … disclosing that 
information to another person outside the normal course of his employment, 
profession or duties or for purposes other than those for which it was 
disclosed to him …’ 
6 That article ensured the transposition of the provisions of the first subparagraph of 
Article 2(1) of Directive 2003/6, which are now contained, in essence, in 
Article 10(1) of the Market Abuse Regulation. 
7 Article 622-2 of the RGAMF provided, in the version thereof in force at the time 
of the facts: 
‘The obligations to refrain from use and disclosure laid down in 
Article 622-1 shall apply to any person who possesses inside information as 
a result of: 
l° his membership of the administrative, governing, management or 
supervisory bodies of the issuer; 
2° his holding in the capital of the issuer; 
3° his access to information by reason of his employment, profession or 
duties, and of his participation in the preparation or the execution of a 
financial operation; 
4° his activities that may be classified as indictable or serious offences. 
Those obligations to refrain from use and disclosure shall also apply to any 
other person who possesses inside information and who knows or ought to 
have known that it is inside information.’ 
8 That article ensured the transposition of the provisions of Article 2(1) and of 
Article 4 of Directive 2003/6, which are now contained in Article 8(4) of the 
Market Abuse Regulation. 
V. Presentation of the facts and procedure in the main proceedings 
9 For a good many years, Mr A, who is now retired, worked as a journalist for 
several UK daily newspapers, firstly at The Financial Times (for nineteen years), 
then at The Times (for two years) and, finally, at the Daily Mail (for twenty-seven 
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years). As part of his work at the Daily Mail, for which he regularly wrote articles 
entitled ‘Market Report’ that consisted in relaying market rumours, he authored 
two articles relating to securities admitted to trading on compartment A of 
Euronext. Those two articles were published on the Daily Mail’s website, which is 
called the ‘Mail Online’. 
10 The first article, published on the Mail Online in the evening of 8 June 2011, was 
entitled ‘Market Report: Hermès shares back in fashion’. That article mentioned a 
possible bid by the company LVMH for Hermès stock at a price of EUR 350 per 
share, that is to say, an 86% premium as compared with the closing day price. The 
day after publication of that article, the share price increased from the market 
opening and then during the session. 
11 The second article, published on the Mail Online in the evening of 12 June 2012, 
was entitled ‘Market Report: Petrol rumours fuel oil trading’. That article reported 
that an offer might soon be made for Maurel & Prom stock at a price of around 
EUR 19 per share, that is to say, an 80% premium as compared with its last price. 
The day after publication of that article, the share price increased from the market 
opening and then during the session. On 14 June 2012, Maurel & Prom denied 
that rumour. 
12 It was established that, shortly before the publication of those two articles on the 
Mail Online, buy orders had been placed for Hermès and Maurel & Prom stock. 
13 After similarities had been noted between those transactions and orders made on 
the market for Arkéma stock shortly before the publication, on a blog of the 
website of the UK daily newspaper The Financial Times, of an article relating to 
market rumours regarding the company Arkéma, the Secretary General of the 
AMF decided to extend the investigation which he had opened on 1 June 2012 
into trading in the stock of, and the financial reporting of, the company Arkéma to 
include trading in the stock of, and the financial reporting of, the company Maurel 
& Prom on 15 November 2013 and trading in the stock of Hermès on 21 January 
2014. 
14 The investigations undertaken revealed that several UK residents, including 
Messrs B, E, F, G and H, had engaged in buy transactions from the UK shortly 
before the publication of the abovementioned articles on the Mail Online, and had 
then closed out their positions once the articles were published. 
15 In that context, on several occasions and for investigative purposes, the AMF 
sought the assistance of its UK counterpart, the Financial Conduct Authority (‘the 
FCA’), referring to the provisions laid down, first, in Article 16 of Directive 
2003/6 on international cooperation and, second, in several multilateral 
memoranda of understanding (‘the MMoU’) on cooperation, exchange of 
information and regulation, to which the AMF and the FCA are signatories. 
16 The FCA provided, inter alia, Mr A’s telephone records detailing all of his 
incoming and outgoing communications for the period from 4 July 2007 to 
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14 June 2013 (‘the records at issue’). The AMF included the records at issue in the 
case file. 
17 On 23 February 2016, the AMF’s Directorate of Investigations and Inspections 
sent to Messrs B, C, H, E, F and G and to Mr A letters informing them, first, of 
the conduct in respect of which they might face charges in the light of the 
investigators’ findings and, second, of the option afforded to them to submit 
observations within a certain period. All the addresses of those letters sent 
observations in response, including Mr A, by letter received on 3 May 2016. 
18 The investigation report was lodged on 5 July 2016. In the light of that report, a 
specialist panel of the AMF Board decided, on 19 July 2016, to serve statements 
of objections on all the individuals in question, including Mr A. 
19 According to the statement of objections sent to Mr A, by letter of 7 December 
2016, he was accused of having committed four infringements, consisting in 
having disclosed to Messrs C and B inside information relating to the forthcoming 
publication on the Mail Online of the two articles relaying rumours of the filing of 
public offers for Hermès and Maurel & Prom stock, in breach of Articles 622-1 
and 622-2 of the RGAMF. 
20 A statement of objections was likewise served on Messrs C and B. Mr C was 
alleged to have, in turn, disclosed that information to Mr F, against whom charges 
had also been directed for having used that information by making transactions 
relating to financial contracts linked to Hermès and Maurel & Prom shares. Mr B 
was alleged, inter alia, to have used that information himself. 
21 In response to the statement of objections sent to him, Mr A lodged written 
observations on 3 July 2017. 
22 The rapporteur appointed by the Chair of the Penalties Commission submitted his 
report on 21 June 2018, after issuing a summons to the accused to attend a hearing 
and hearing some of them, including Mr A, on 23 February 2018. Mr A did not 
submit observations in response to the report. 
23 A summons was issued to the accused to attend the sitting of the Penalties 
Commission, which was held on 14 September 2018. 
24 By Decision No 11 of 24 October 2018 (‘the contested decision’), the Penalties 
Commission found that information relating to the forthcoming publication of a 
press article relaying a market rumour could constitute inside information, and 
that the information at issue satisfied the conditions for classification as inside 
information. It then held that Mr A had disclosed the inside information relating to 
the Hermès stock to Messrs C and B and that concerning Maurel & Prom to Mr C 
alone, and ordered Mr A to pay a financial penalty of EUR 40 000. 
25 With regard to the other persons in question, the Penalties Commission held that 
some of the infringements with which they were charged were established and 
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ordered that they pay financial penalties ranging from EUR 20 000 to 
EUR 150 000. 
26 Mr A alone appealed against that decision. He is seeking, primarily, a finding in 
limine litis that the investigation process and the proceedings are flawed and, as a 
consequence, the annulment of the contested decision. In the alternative, he asks 
that that decision be set aside, in so far as it disapplied Article 21 of Regulation 
No 596/2014, or reversed in so far as it held that the infringements with which he 
was charged were established, and, as a result, that he be exonerated and it be held 
that there is no need to penalise him. In the further alternative, he requests that the 
amount of the penalty imposed be reduced. The AMF contended that the appeal 
should be dismissed. 
VI. Matters settled by the referring court 
A. Pleas in law alleging procedural flaws 
27 Mr A has put forward various pleas in law alleging procedural flaws which, in his 
view, render the contested decision invalid. He has thus pleaded a breach [of the 
confidentiality] of journalistic sources, the improper conduct of certain hearings 
and defects in the statement of objections. 
28 All of those pleas in law were rejected by the referring court. 
29 With regard to the plea in law based on the breach [of the confidentiality] of 
journalistic sources by reason of the inclusion of the records at issue in the case 
file (see paragraph 16), the Court of Appeal, Paris, finds that the inclusion of those 
records was in fact unlawful. It takes the view that their inclusion does not meet 
an overriding requirement in the public interest, in particular because the 
infringement of the confidentiality of journalistic sources, as protected by 
Article 10 of the Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘ECHR’), went beyond what was necessary, owing to the scope of 
those records. 
30 However, it takes the view that that flaw does not vitiate the investigative and 
penalty procedure in its entirety or, therefore, the contested decision. It is apparent 
from the investigation’s timeline that the request for transmission of the 
connection data of Mr B and Mr C is not based on the use of the records at issue, 
but rather stems from other evidence gathered by the investigators, some of which 
was available to them even before the receipt of the records at issue and which the 
Penalties Commission could lawfully use. It therefore rejects this plea for 
annulment. 
31 The Court of Appeal, Paris, also rejects Mr A’s pleas in law alleging, first, that he 
was not heard and, second, defects in the hearing of the other accused persons in 
the course of the preliminary stage of the investigation period, which precedes the 
penalties procedure opened by the statement of objections. It takes the view that 
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the questionnaire provided to Mr A via the FCA and the use made of the 
responses supplied did not infringe the principle of fairness of the investigation or 
the rights of the defence. It also considers that the hearings of the other accused 
persons did not give rise to a breach of the principle of fairness of the 
investigation. 
32 As for the plea in law based on defects in the statement of objections, Mr A 
submits that the statement of objections sent to him on 7 December 2016 should 
have referred to Article 21 of the Market Abuse Regulation, which had come into 
effect on 3 July 2016, and not to Article 622-1 of the RGAMF, which was 
applicable at the time of the facts but had been repealed in September 2016, 
following the entry into force of the Market Abuse Regulation. Mr A claims that 
Article 21 of the Market Abuse Regulation introduced rules more favourable to 
journalists in relation to the disclosure of inside information, with the 
establishment of that breach being made subject to the satisfaction of additional 
conditions, which justifies its retroactive application ‘in mitius’. Since those 
criteria necessary for the establishment of the alleged breach are not set out in the 
statement of objections, he submits that that statement is defective and that its 
defects render the subsequent penalties procedure and, therefore, the contested 
decision invalid. 
33 The AMF does not contest the retroactive applicability ‘in mitius’ of Article 21 of 
the Market Abuse Regulation, but recalls that it is sufficient, pursuant to Article 6 
ECHR, as interpreted by the European Court of Human Rights, for the accused 
person to be informed in detail of the nature and the grounds of the charges 
brought against him, that is to say, the substance of the acts with which he is 
charged and their legal classification. 
34 The Court of Appeal, Paris, finds that, notwithstanding the lack of any reference 
to Article 21 of the Market Abuse Regulation, which was applicable retroactively, 
the statement of objections sent to Mr A was sufficiently precise for the purposes 
of his defence. It therefore likewise rejects this plea in law. 
B. Pleas in law based on the substance of the acts with which Mr A is 
charged 
35 Mr A claims that he lacked authority to decide to publish his market reports and 
that he therefore did not possess the information that he is alleged to have 
disclosed. The Court of Appeal, Paris, finds that there is a body of strong, precise 
and consistent evidence unequivocally establishing that Mr A was in possession of 
the information relating to the forthcoming publication on the Mail Online of his 
market report of 8 June 2011 regarding Hermès at 15:06 at the latest, and of his 
market report of 12 June 2012 regarding Maurel & Prom at 15:36 at the latest. 
36 With regard to the disclosure of the information in question, which relates to the 
forthcoming online publication of the market reports regarding Hermès, on the 
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one hand, and Maurel & Prom, on the other hand, the Court of Appeal, Paris, finds 
that: 
 there is a strong, precise and consistent body of evidence 
unequivocally establishing that, in the afternoon of 8 June 2011, Mr A 
disclosed to Mr B the information relating to the forthcoming online 
publication of his market report regarding Hermès; 
 the evidence brought to light is not sufficient to establish 
unequivocally that, on 8 June 2011, Mr A disclosed to Mr C the 
information relating to the forthcoming online publication of his 
market report regarding Hermès; 
 there is a strong, precise and consistent body of evidence 
unequivocally establishing that, on 12 June 2012, Mr A disclosed to 
Mr C the information relating to the forthcoming online publication of 
his market report regarding Maurel & Prom. 
VII. The need to refer questions to the Court of Justice for a preliminary 
ruling 
A. The concept of ‘inside information’ 
1. Main arguments of the parties 
37 Mr A contests the classification of information relating to the forthcoming 
publication of a press article relaying market rumours as inside information. 
38 In the first place, he claims that that classification is incompatible with the concept 
of a ‘secondary insider’, within the meaning of the second subparagraph of 
Article 622-2 of the RGAMF, since it has not been shown that Messrs B and C, 
who are classified as secondary insiders in the contested decision, were in any 
way associated with the issuer of the securities concerned or with the media outlet 
that published his articles and, therefore, that they knew or ought to have known 
that the information at issue constituted inside information. 
39 In the second place, he takes the view that that classification is incompatible with 
the nature of the profession of financial journalist. In that regard, he observes that 
it is at the heart of the activity of a financial journalist to gather market rumours in 
order to identify potential topical issues and to discuss them both with sources and 
with a multitude of persons within the editorial team, with a view to an article 
potentially being written. In his view, the classification at issue amounts to taking 
the view that any financial journalist systematically generates inside information 
simply by virtue of the fact that he intends to publish articles on the markets, 
notwithstanding the absence of any association with the issuer concerned, 
something which — in his opinion — ultimately turns the financial press into a 
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‘manufacturer of inside information’ and editorial teams into ‘groups of insiders’. 
He notes that that classification tends to place the activity of financial journalists 
on the same footing as that of professionals exposed to a wealth of inside 
information (issuers, financial analysts, portfolio management companies, service 
providers who conduct market surveys, and so forth), who, on that basis, are 
regulated by the AMF and subject to strict obligations in relation to the detection 
and management of the circulation of inside information (internally and 
externally). 
40 In the third place, Mr A claims that a publication cannot constitute inside 
information if its content does not mention any information of that kind. He takes 
the view that, in the present case, the content of the articles at issue does not meet 
the requirement that the information be of a precise nature, because those articles 
do no more than report mere market rumours. In that regard, he observes that it is 
generally accepted that a rumour cannot constitute inside information on account 
of the lack of precision as to its origin, with such imprecision giving rise to doubt 
about its authenticity, even if the publication of that rumour may be of interest to 
the market and may have an impact on the issuer’s share price. 
41 In the fourth place, and for the sake of completeness, Mr A submits that, in the 
present case, irrespective of the content of the articles at issue, the information 
relating to their forthcoming publication was neither precise, since it was not 
apparent what was going to be published, nor capable of having an impact on the 
prices of the shares concerned, since there was nothing capable of demonstrating 
his particular reputation as a financial journalist, in particular in the sectors 
concerned by the securities at issue (luxury goods and oil), or that of the Mail 
Online, since that media outlet does not enjoy the same authority as that enjoyed 
by The Financial Times. 
42 The AMF contends that ‘Article 621-1 of the [RGAMF] does not provide for any 
restriction as regards the nature, content or origin of the information that may be 
classified as inside information, and does not require that that information should 
come from an issuer but merely that it relates to that issuer, directly or indirectly, 
and is precise, not public and capable of having a significant impact on the price 
of the financial instruments concerned’. 
43 In addition, it takes the view that, in the presence case, as from the afternoon, the 
forthcoming publication of Mr A’s articles on the Mail Online was likely to occur 
(publication in the evening), with the result that the information relating to such 
publication, the content of which was also sufficiently precise (because the price 
of possible takeover bids is mentioned) for a conclusion to be drawn from it as 
regards the possible effect of that publication on the prices of the shares at issue, 
was precise in nature as from the afternoon, at which time that information was 
disclosed. 
44 Lastly, it states that, in the present case, the earlier publication, in other 
newspapers, of articles mentioning planned transactions involving Hermès and 
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Maurel & Prom stock did not make public the information that the Mail Online 
was shortly going to publish market reports authored by Mr A relating to the 
existence of a rumour of a bid for those shares at a particular price, but rather 
confirmed the credibility of those market reports, which stemmed not least from 
Mr A’s reputation as a financial journalist, such that the information relating to the 
forthcoming publication of the articles was likely to be used by a reasonable 
investor gambling on that rumour coming to fruition or, at the very least, that the 
prices of the shares concerned would be revised upwards once those articles were 
published. 
2. Grounds for the reference regarding the concept of ‘inside information’ 
45 In the present case, it is for the referring court to determine whether information 
relating to the forthcoming publication of a press article relaying a market rumour 
can constitute inside information within the meaning of Article 621-1 of the 
RGAMF. Those provisions of the RGAMF were repealed following the entry into 
force of the Market Abuse Regulation. 
46 Since that article transposes the first subparagraph of Article 1(1) of Directive 
2003/6, as clarified by Article 1(1) and (2) of Directive 2003/124, it must be 
interpreted in accordance with those provisions of those directives. 
47 In two judgments of 28 June 2012, Geltl (C-19/11, EU:C:2012:397, paragraph 25) 
and of 11 March 2015, Lafonta (C-628/13, EU:C:2015:162, paragraph 24), the 
Court of Justice recalled that the definition of the concept of ‘inside information’ 
resulting from the first subparagraph of Article 1(1) of Directive 2003/6 comprises 
four essential elements, which apply cumulatively: 
 firstly, the information is of a precise nature; 
 secondly, that information has not been made public; 
 thirdly, it relates, directly or indirectly, to one or more financial 
instruments or their issuers; 
 fourthly, if it were made public, that information would be likely to 
have a significant effect on the prices of the financial instruments 
concerned or on the price of related derivative financial instruments. 
48 In the present case, it is not disputed that the information at issue satisfies the 
second criterion. The forthcoming publication of Mr A’s articles on rumours 
relating to Hermès and Maurel & Prom had not been announced before they were 
published. Similarly, the market was aware of the content of those articles only 
once they were published, it being understood that the earlier publication of 
several articles did not make public the information that the Mail Online was 
shortly going to publish, on 8 June 2011 and 12 June 2012, two articles by Mr A 
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reporting, respectively, a rumoured bid by LVMH for Hermès shares at a price of 
EUR 350 and a rumoured bid for Maurel & Prom shares at a price of EUR 19. 
49 It is likewise common ground that the information at issue satisfies the third 
criterion. That information relates to the forthcoming publication of press articles 
relaying market rumours about transactions concerning, respectively, Hermès and 
Maurel & Prom. Accordingly, that information relates, directly or indirectly, to 
one or more issuers of financial instruments. 
50 As for the fourth criterion, Article 1(2) of Directive 2003/124 defines inside 
information as ‘information a reasonable investor would be likely to use as part of 
the basis of his investment decisions’. 
51 Citing recital 1 of that directive, the referring court recalls that, in its judgment of 
23 December 2009, Spector Photo Group and Van Raemdonck (C-45/08, 
EU:C:2009:806, paragraph 69), the Court of Justice explained that, ‘in 
accordance with the purpose of Directive 2003/6, that capacity to have a 
significant effect on prices must be assessed, a priori, in the light of the content of 
the information at issue and the context in which it occurs’ and that ‘it is thus not 
necessary, in order to determine whether information is inside information, to 
examine whether its disclosure actually had a significant effect on the price of the 
financial instruments to which it relates’. In her Opinion in the case which gave 
rise to that judgment (Spector Photo Group and Van Raemdonck, C-45/08, 
EU:C:2009:534, points 96 and 97), Advocate General Kokott took the view that, 
although it is necessary ‘[to make] an ex ante finding whether information is likely 
to have an effect on the price’, ‘the extent of a price movement after the 
publication of … information may be an indication of the significance and the 
potential of [that] information’. 
52 In the present case, the information at issue, which concerned the forthcoming 
publication of Mr A’s articles relaying rumoured bids for Hermès and Maurel & 
Prom stock at a significantly higher price than the previous day’s closing price, 
followed on from the recent publication of press articles, in particular in The 
Financial Times, mentioning either a possible increase by the LVMH group of its 
stake in Hermès or potential preparations for a takeover of Maurel & Prom. 
53 In that context, the information at issue was likely to be used by a reasonable 
investor as part of the basis of his investment decisions regarding Hermès and 
Maurel & Prom stock. 
54 Furthermore, it should be noted that those shares experienced a significant price 
variation following the publication of Mr A’s articles. This ‘ex post’ factor 
confirms that the information at issue satisfies ‘ex ante’ the fourth criterion for 
inside information. 
55 It remains to be determined whether that information can satisfy the first criterion, 
which relates to the precise nature of the information. 
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56 In that regard, it is clear from Article 1(1) of Directive 2003/124 that information 
is to be deemed to be of a precise nature in the case where it satisfies the 
following two cumulative criteria: 
 first, that information must indicate ‘a set of circumstances which 
exists or may reasonably be expected to come into existence or an 
event which has occurred or may reasonably be expected to do so’; 
 second, that information 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 financial instruments or 
related derivative financial instruments’. 
57 In the present case, the information at issue relates, first, to the forthcoming 
publication (on 8 June 2011) on the Mail Online of an article by Mr A relaying a 
rumour concerning Hermès stock and, second, to the forthcoming publication (on 
12 June 2012) on the same website of an article by the same journalist relaying a 
rumour concerning Maurel & Prom stock. 
58 In so far as they indicate an event — the forthcoming publication of a press 
article — that may reasonably be expected to occur, that information satisfies the 
first criterion required under Article 1(1) of Directive 2003/124 to be classifiable 
as precise. 
59 By contrast, the question is raised as to whether it satisfies the second criterion. 
60 In order to answer that question, it is necessary to determine whether, in order for 
information relating to the future publication of a press article to be specific 
enough, within the meaning of Article 1(1) of Directive 2003/124, the content of 
the article must itself be specific enough, within the meaning of the same 
provision. 
61 In the judgment of 11 March 2015, Lafonta (C-628/13, EU:C:2015:162, cited 
above, paragraph 31), the Court of Justice clarified the meaning and the scope of 
that second criterion by finding that Article 1(1) of Directive 2003/124 requires 
that ‘the information be sufficiently exact or specific to constitute a basis on which 
to assess whether the set of circumstances or the event in question is likely to have 
a significant effect on the price of the financial instruments to which it relates’, 
such that that article ‘[excludes] from the concept of “inside information” 
[only] … information that is vague or general, from which it is impossible to draw 
a conclusion as regards its possible effect on the prices of the financial 
instruments concerned’. 
62 Rumours appear, by their nature, to come within the category of ‘information that 
is vague or general, from which it is impossible to draw a conclusion as regards 
its possible effect on the prices of the financial instruments concerned’. 
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63 Furthermore, in [footnote 16 to] his Opinion in Geltl (C-19/11, EU:C:2012:153), 
Advocate General Mengozzi pointed out that ‘information will not be precise 
where reason dictates that the event be regarded as impossible or improbable, the 
necessary element of reasonableness being absent, for example, where it is no 
more than rumour, or where the information is so vague as to make it impossible 
to draw inferences as to the possible effect on trading in the financial instruments 
at issue or in related derivative instruments’ (emphasis added by the Court of 
Appeal, Paris). 
64 This therefore raises the question as to whether the fact that a press article, the 
forthcoming publication of which constitutes the information at issue, consists in 
relaying a market rumour precludes, by its nature, that information from 
potentially being inside information or whether, conversely, such a classification 
is conceivable depending on the circumstances. 
65 In that regard, in the light of the specific features of the present case, the referring 
court is unsure whether the fact that the press article relaying a market rumour 
mentions the price of a possible public takeover bid has an impact on the 
assessment as to whether the information at issue is precise in nature. 
66 It is likewise unsure whether the reputation of the journalist who authored the 
article or of the media outlet which published that article is capable of influencing 
the answer to that question. 
67 Lastly, since the price of Hermès and Maurel & Prom shares varied significantly 
following the publication of Mr A’s articles, the referring court expresses 
uncertainty as to whether, if it is established that a press article relaying a market 
rumour actually had a significant ‘ex post’ effect on the price of the stock forming 
the subject of that rumour, account should be taken of that fact in assessing 
whether the information relating to the forthcoming publication of the article 
satisfies the requirement of precision. 
68 Since the Court of Justice has not had the opportunity to rule on all of these 
questions, which are crucial to resolving the dispute, a request for a preliminary 
ruling should be made seeking the interpretation of the first subparagraph of 
Article 1(1) of Directive and of Article 1(1) of Directive 2003/124, as set out in 
the operative part of this judgment. 
B. The relationship between, and the interpretation of, Articles 10 and 21 of 
the Market Abuse Regulation 
69 The arguments which follow are submitted solely in the event that the Court of 
Justice should answer the abovementioned questions to the effect that information 
such as that at issue can satisfy the necessary requirement of precision. 
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1. Arguments of the parties 
70 Mr A takes issue with the analysis conducted by the Penalties Commission, on the 
basis of which it disapplies Article 21 of the Market Abuse Regulation, an 
analysis pursuant to which, if the sole objective of the discussion between Mr A, 
on the one hand, and Messrs C and B, on the other, who are identified as being his 
sources, regarding the rumour of the submission of a bid at a certain price was the 
public dissemination of that rumour, such that it was for ‘the purpose of 
journalism’ within the meaning of that provision, this was not likewise the case as 
regards the transmission, to those sources only and not to the public, of the inside 
information of the future publication on the Mail Online of a market report 
mentioning that rumour. 
71 In support of the application of Article 21 of the Market Abuse Regulation to 
shore up his case, Mr A relies, in the first place, on the case-law of the Court of 
Justice interpreting Article 9 of Directive 95/46/EC of the European Parliament 
and of the Council of 24 October 1995 on the protection of individuals with regard 
to the processing of personal data and on the free movement of such data, 
according to which it is necessary to give a broad interpretation to the concept of 
the processing of personal data ‘solely for journalistic purposes’ within the 
meaning of that article (judgments of 16 December 2008, Satakunnan 
Markkinapörssi and Satamedia, C-73/07, EU:C:2008:727, paragraphs 56 and 61, 
and of 14 February 2019, Buivids, C-345/17, EU:C:2019:122, paragraphs 51 and 
53). He states that the telephone conversations during which he may have 
informed his sources of the forthcoming publication of his articles were conducted 
in the exercise of his activity as a journalist. 
72 In the second place, Mr A claims that, by limiting the application of Article 21 of 
the Market Abuse Regulation solely to the situation in which the information at 
issue is intended to be published, the AMF is not only denying the essential role of 
sources in the exercise of journalistic activities but, more generally, is reducing 
the role of a journalist to his published articles, thereby disregarding the many 
necessary preliminary stages before an article is published (identification of 
issues, cross-checks, documentation, editing, and so forth), whether that article is 
ultimately published or not. 
73 In the third place, he submits that the interpretation of Article 21 of the Market 
Abuse Regulation adopted in the contested decision amounts to a denial of the 
existence of the preferential rules afforded to journalists by way of derogation, by 
applying only the rules of ordinary law laid down in Article 10 of that regulation. 
He explains that Article 10 of the Regulation lays down a general principle that 
the disclosure of inside information is lawful where that disclosure occurs ‘in the 
normal course of the exercise of an employment, a profession or duties’ and that 
that condition has been interpreted strictly by the Court of Justice as requiring not 
only a close link between the disclosure and the exercise of the profession or 
duties but also the strict necessity and proportionality of the former in relation to 
the latter (judgment of 22 November 2005, Grøngaard and Bang, C-384/02, 
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EU:C:2005:708, paragraphs 31 and 34). He infers from that case-law that, in the 
present case, the interpretation of Article 21 of the Market Abuse Regulation 
adopted in the contested decision, in so far as it requires an assessment as to 
whether the disclosure at issue was necessary for the provision of information to 
the public by the journalist, amounts to an application of the rules of general law 
rather than of the specific and derogatory rules applicable to journalists. 
74 Furthermore, Mr A observes that it is common ground that neither he nor any 
person closely associated with him has made the slightest profit from the alleged 
communications of information and that he cannot be alleged to have had any 
intention to mislead the market as regards the supply of, demand for, or price of 
the shares concerned. He concludes from this fact that the situation in the present 
dispute is not covered by the exceptions to the specific rules applicable to 
journalists, as contained in Article 21 of the Market Abuse Regulation. 
75 He also observes that those specific rules require that the infringements at issue be 
examined in the light of the rules and guarantees afforded by the freedom of the 
press and of the English law applicable to journalists. He claims that he cannot be 
accused of having breached the rules governing the profession of journalist, since 
Article 13 of the Code of Practice of the Independent Press Standards 
Organisation 1 (which is the independent press regulator in the United Kingdom 
and of which the Daily Mail was a member at the time of the facts; ‘the IPSO’), 
upon which the AMF relies, simply prohibits a journalist from passing on 
financial information received by him in advance of its publication, and does not 
govern the choice of the subject of an article, which, by definition, is not 
information received from a third party but comes from the journalist. Mr A 
concludes from the foregoing that he should be exonerated. 
76 In response, the AMF contends that, as part of his gathering of the information in 
the possession of his sources (Messrs C and B), Mr A was not required to confirm 
to those persons that he was going to mention the rumours at issue in his articles. 
Accordingly, the disclosure of that information by him to his sources, that is to 
say, to third parties and not to the public, even though it occurred in the exercise 
of his activity as a journalist, was not made ‘for the purpose of journalism’ within 
the meaning of Article 21 of the Market Abuse Regulation, with the result that 
that article is not applicable in the present case. 
77 In the alternative, in the event that such disclosure was made ‘for the purpose of 
journalism’, the AMF argues that Article 21 of the Market Abuse Regulation does 
not require that the classification of an infringement be made conditional upon the 
failure to comply with a professional rule; rather, it simply provides for specific 
procedures for assessing that infringement, with account having to be taken, in 
accordance with the wording of that article, of ‘the rules governing the freedom of 
the press and freedom of expression in other media and the rules or codes 
governing the journalist profession’. 
 
1 Note from the author of this summary: https://www.ipso.co.uk/editors-code-of-practice/ 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-302/20 
 
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78 It points out that, in the present case, the IPSO’s Code of Practice states, in 
Article 13 thereof, which is entitled ‘Financial journalism’, in the version of that 
code in force at the time of the facts, that, ‘even where the law does not prohibit it, 
journalists must not use for their own profit financial information they receive in 
advance of its general publication, nor should they pass such information to 
others’. It contends that those provisions, in addition to those in Article 11 of the 
Charter of Fundamental Rights of the European Union and in Article 10 ECHR, 
make clear the duty of journalists not to exceed certain limits relating to, inter alia, 
the need to prevent the disclosure of confidential information. It argues that 
finding the disclosure of the information at issue to be unlawful does not 
constitute disproportionate interference with the right to freedom of expression. It 
concludes from the foregoing that, even applying Article 21 of the Market Abuse 
Regulation, such dissemination constitutes an infringement of the obligation laid 
down in Articles 622-1 and 622-2 of the RGAMF. 
2. Grounds for the reference regarding the relationship between, and the 
interpretation of, Articles 10 and 21 of the Market Abuse Regulation 
79 As stated above, Mr A is accused, according to the statement of objections sent to 
him, of having failed to comply with the obligation to refrain from communicating 
inside information, in breach of Articles 622-1 and 622-2 of the RGAMF. 
80 That [first] article transposed the provisions of the first subparagraph of 
Article 2(1) of Directive 2003/6, which are now contained, essentially, in 
Article 10(1) of the Market Abuse Regulation. 
81 Article 622-2 of the RGAMF transposed the provisions of Article 2(1) and 
Article 4 of Directive 2003/6, which are now contained in Article 8(4) of the 
Market Abuse Regulation. 
82 The unlawful disclosure of inside information, within the meaning of 
Article 10(1), cited above, is prohibited by Article 14(c) of the Market Abuse 
Regulation, which provides: ‘A person shall not … unlawfully disclose inside 
information’. 
83 It is common ground that Article 21 of the Market Abuse Regulation introduces 
specific rules intended to reconcile the tackling of market abuse with the 
requirements arising from press freedom. 
84 In the present case, it is also common ground that Mr A was a journalist at the 
time of the facts and that the situation at issue is not covered by the exceptions 
laid down in Article 21(a) and (b) of the Market Abuse Regulation. 
85 Indeed, it is not established or even alleged that: 
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 Mr A or persons closely associated with him derived, directly or 
indirectly, an advantage or profits from the disclosure in question 
(situation covered by Article 21(a)); 
 Mr A intended, by that disclosure, to mislead the market as to the 
supply of, demand for, or price of financial instruments (situation 
covered by Article 21(b)). 
86 It follows that, on the assumption that the information at issue was disclosed ‘for 
the purpose of journalism’, Article 21 of the Market Abuse Regulation is liable to 
be applicable in the present case. 
87 The Court of Appeal, Paris, is unsure, in the first place, as to the interpretation that 
should be given to the concept of disclosure ‘for the purpose of journalism’ within 
the meaning of that article. More specifically, it is uncertain whether the 
disclosure by a journalist, to one of his usual sources, of information relating to 
the forthcoming publication of an article authored by him relaying a market 
rumour can be made ‘for the purpose of journalism’ within the meaning of 
Article 21 of the Market Abuse Regulation. 
88 In its judgment of 16 December 2008, Satakunnan Markkinapörssi and Satamedia 
(C-73/07, EU:C:2008:727, cited above, paragraphs 56 and 61), the Court of 
Justice clarified the meaning of the similar form of words (‘solely for journalistic 
purposes’) contained in Article 9 of Directive 95/46. It held that activities that 
have as their sole purpose the disclosure to the public of information, opinions or 
ideas must be regarded as activities carried out ‘solely for journalistic purposes’. 
That definition was reproduced in the judgment of 14 February 2019, Buivids 
(C-345/17, EU:C:2019:122, cited above, paragraph 53). 
89 In the judgments in Satakunnan Markkinapörssi and Satamedia (paragraphs 52 to 
56) and in Buivids (paragraphs 50, 51, 63 and 64), cited above, the Court of 
Justice, which took as a starting point the fact that Article 9 of Directive 95/46 
seeks to reconcile two fundamental rights, namely, on the one hand, the right to 
privacy and, on the other hand, the freedom of expression, found that, in order to 
take account of the importance of the freedom of expression in every democratic 
society, it is necessary to give a broad interpretation to the related concepts, 
including the concept of journalism, whilst explaining that, in order to achieve a 
proper balance between those two fundamental rights, the protection of the 
fundamental right to privacy requires that the derogations and limitations in 
relation to the protection of personal data provided for in, inter alia, Article 9 of 
Directive 95/46 must apply only in so far as is strictly necessary. 
90 Article 21 of the Market Abuse Regulation seeks, in the same way, to reconcile a 
public-interest objective and a fundamental right, namely, on the one hand, the 
objective of tackling market abuse in order to protect the integrity of the EU 
financial markets and to enhance investor confidence in those markets (see, to that 
effect, with regard to the purpose of Directive 2003/6, inter alia, the 
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abovementioned judgments of 23 December 2009, Spector Photo Group and Van 
Raemdonck, C-45/08, EU:C:2009:806, paragraph 47, and of 11 March 2015, 
Lafonta, C-628/13, EU:C:2015:162, paragraph 21) and, on the other, the 
fundamental right of freedom of expression, of which the freedom of the press 
forms part. 
91 In the light of those considerations, the Court of Appeal, Paris, asks whether the 
purpose of Article 21 of the Market Abuse Regulation and the importance of the 
freedom of the press in every democratic society require the adoption of a broad 
interpretation of the concept of disclosure ‘for the purpose of journalism’ within 
the meaning of that article. 
92 In that regard, the referring court asks whether the concept of disclosure ‘for the 
purpose of journalism’, within the meaning of Article 21 of the Market Abuse 
Regulation, has the same scope as the concept of the dissemination of information 
originating from ‘journalists when they act in their professional capacity’, within 
the meaning of Article 1(2)(c) of Directive 2003/6, notwithstanding the difference 
in terminology between those two articles. 
93 That article had introduced specific rules, which were likewise intended to 
reconcile the tackling of market abuse with the requirements arising from press 
freedom, whilst limiting those rules to particular forms of market-manipulating 
conduct only, namely the dissemination of information which gives, or is likely to 
give, false or misleading signals as to financial instruments, including the 
dissemination of rumours and false or misleading news. 
94 In the light of the common purpose of Article 1(2)(c) of Directive 2003/6 and of 
Article 21 of the Market Abuse Regulation, the referring court asks whether it is 
enough for the disclosure of inside information to occur in the exercise of the 
activity of a journalist in order to find that that disclosure was made ‘for the 
purpose of journalism’ within the meaning of Article 21 of the Market Abuse 
Regulation. 
95 In addition, the Court of Appeal, Paris, asks whether the interpretation of the 
concept of disclosure ‘for the purpose of journalism’ turns on, inter alia, the 
question whether or not the journalist who authored the article relaying a market 
rumour was informed of that rumour by one of his usual sources or whether or not 
the disclosure by that journalist of the information relating to the forthcoming 
publication of his article was expedient in order to obtain clarifications from that 
source about the credibility of that rumour. 
96 Since the Court of Justice has never had the opportunity to rule on the 
interpretation of the concept of disclosure ‘for the purpose of journalism’ within 
the meaning of Article 21 of the Market Abuse Regulation, a question should be 
referred to it for a preliminary ruling on this point. 
97 In the second place, the referring court is unsure as to the relationship between 
Articles 21 and 10(1) of the Market Abuse Regulation. 
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98 It is clear from the wording of Article 21 of the Market Abuse Regulation that the 
special rules which that article lays down are laid down ‘for the purposes of 
Article 10’ of that regulation. That express reference to Article 10 suggests that 
Article 21 is intended not to derogate from that first article, as Mr A alleges, but to 
clarify the criteria for assessment of the lawful or unlawful nature of the 
disclosure of inside information ‘for the purpose of journalism’, in the context of 
the general rules defined in Article 10, which, for its part, applies regardless of the 
purpose of the disclosure. 
99 However, that interpretation is not obvious and the Court of Justice has never had 
the opportunity to rule on the relationship between those two provisions. 
100 A question must therefore be referred to it for a preliminary ruling on this point. 
101 In the third place, assuming that Article 21 does not derogate from Article 10 of 
the Market Abuse Regulation, such that the latter is in any event applicable to the 
dispute, the Court of Appeal, Paris, expresses uncertainty anent the correct 
interpretation of that provision. 
102 Although the Court of Justice has not yet interpreted that article, it has interpreted 
Article 3 of Council Directive 89/592/EEC of 13 November 1989 coordinating 
regulations on insider dealing, which is now repealed. That article, which was 
reproduced almost identically in Article 3 of Directive 2003/6, was in turn 
reproduced almost identically in Article 10 of the Market Abuse Regulation, in 
that it lays down a principle prohibiting the disclosure of inside information to a 
third party whilst pairing that principle with an exception where such disclosure 
occurs ‘in the normal course of the exercise of [an] employment, profession or 
duties’. 
103 By its judgment of 22 November 2005, Grøngaard and Bang (C-384/02, 
EU:C:2005:708, cited above, paragraphs 31 and 34), the Court of Justice, in 
interpreting that exception strictly, explained that the application of that exception 
requires a close link between, on the one hand, the disclosure of the inside 
information at issue and, on the other hand, the exercise of the employment, 
profession or duties of the person making that disclosure, which means that such 
disclosure is justified only if it is strictly necessary for the exercise of that 
employment or profession or those functions and if it complies with the principle 
of proportionality. In that same judgment (paragraphs 39 and 40), the Court of 
Justice also explained that that exception must be appraised taking into account 
the particular features of the applicable national law and that, in the absence of 
harmonisation as to what comes within the normal ambit of the exercise of an 
employment, profession or duties, that appraisal depends to a large extent on the 
rules governing those questions in the various national legal systems. The fact that 
the disclosure at issue is allowed by the applicable national legal system does not, 
however, provide exemption from the obligation to satisfy the conditions of 
necessity and proportionality set out above. 
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104 Article 21 of the Market Abuse Regulation, the provisions of which are laid down 
‘for the purposes of Article 10’, appears to come under that approach of an 
assessment that turns, to a large extent, on the rules applicable in the Member 
States, rules which are intended to determine what comes within the normal 
course of the exercise of an employment, profession or duties. By referring to the 
‘rules governing the freedom of the press’ and to the ‘rules or codes governing the 
journalist profession’, Article 21 thus appears to clarify or refine, in particular in 
the case of journalists, the criteria of assessment formulated by the Court of 
Justice in the judgment in Grøngaard and Bang, cited above, to establish whether 
the communication of inside information to a third party can come under the 
exception laid down in Article 3 of Directive 89/592 (and essentially reproduced 
in Article 3 of Directive 2003/6 and then in Article 10 of the Market Abuse 
Regulation). 
105 It would be helpful if the Court of Justice could clarify whether the interpretation 
of Article 3 of Directive 89/592 adopted in its judgment in Grøngaard and Bang, 
cited above, must be transposed to the interpretation of Article 10 of the Market 
Abuse Regulation, such that the disclosure of inside information can take place ‘in 
the normal course of the exercise of the profession’ of journalist only if it is 
strictly necessary for the exercise of that profession and complies with the 
principle of proportionality. 
106 Such clarification would be useful in the present case because, contrary to what 
the AMF suggests, there can be no doubt that, by disclosing the information at 
issue, Mr A did not infringe Article 13 of the IPSO. 
107 That article, which is entitled ‘Financial journalism’, in the version thereof in 
force at the time of the facts, states: 
‘Even where the law does not prohibit it, journalists must not use for their 
own profit financial information they receive in advance of its general 
publication, nor should they pass such information to others.’ 
108 As Mr A rightly explains, that article merely prohibits financial journalists from 
passing on financial information received by them in advance of its publication, 
and does not govern the choice of the subject of an article authored by a journalist, 
which, by definition, does not constitute information received from a third party 
but originates from the journalist himself. The same is thus true of information 
relating to the forthcoming publication of an article authored by him on that 
subject. 
109 In addition, it has not been demonstrated that Mr A exceeded the limits of the 
freedom of the press, as guaranteed by Article 10 ECHR and Article 11 of the 
Charter, by disclosing the information at issue to Messrs B and C. 
110 Since the Court of Justice has not yet had the opportunity to give a ruling on the 
interpretation of Article 10 of the Market Abuse Regulation, a question must be 
put to it in that regard.