Opinion of the Advocate General — ECLI:EU:C:2025:571
Date: 2025-07-10
Language of the case: Swedish

Translation C-229/24 – 1 
Case C-229/24 [Brännelius] i 
Request for a preliminary ruling 
Date lodged: 
26 March 2024 
Referring court: 
Högsta domstolen (Sweden) 
Date of the decision to refer: 
21 March 2024 
Appellants: 
TK 
OP 
Other party to the proceedings: 
Riksåklagaren 
  
… 
PARTIES 
Appellants 
1. TK 
… 
2. OP 
… 
Other party to the proceedings 
Riksåklagaren (Prosecutor General, Sweden) 
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 21. 3. 2024 – CASE C-229/24 
 
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… 
SUBJECT MATTER 
Insider trading 
… 
REQUEST FOR A PRELIMINARY RULING 
Background 
1. In the spring of 2018, Umeå kommunföretag AB, a municipal company in 
which the Municipality of Umeå has a legally decisive influence, conducted a 
tendering procedure for electric buses and charging stations. Two companies 
submitted tenders. One of these was the listed company Hybricon Bus Systems 
AB. A further three companies had registered interest in the tendering procedure 
but were not eligible to submit tenders. 
2. On 14 May 2018, the municipal company adopted a decision by which the 
contract was awarded not to Hybricon, but to the other tenderer. In an email sent 
at 2.34pm on the same date, the municipal company notified all five companies of 
the outcome of the tendering procedure. 
3. At Hybricon the email was received by an operating officer who had main 
responsibility for contacts with the municipal company concerning the tendering 
procedure. Shortly thereafter, the operating officer sent a message to OP urging 
him to sell his shares in Hybricon. OP passed on the information to TK, who also 
owned shares in the company. 
4. At 2.37pm TK placed an order to sell 73 000 shares in Hybricon. A few 
minutes later, at 2.40pm, OP sold 31 000 shares in the company. 
5. A press release announcing that Hybricon had been unsuccessful in the 
tendering procedure was issued by the company at 3.22pm. Hybricon’s share price 
fell sharply thereafter. By disposing of shares in the company prior to that, OP and 
TK limited their losses. 
The proceedings before the tingsrätten (District Court) 
6. OP and TK, among others, were charged with the crime of insider trading in 
connection with the sale of shares at issue. 
7. The tingsrätten (District Court) sentenced OP and TK each to a suspended 
sentence and community service for non-minor insider trading. Had imprisonment 
been the penalty chosen instead, a four-month prison sentence would have been 
handed down. As compensation for crime, SEK 51 508 of OP’s property and 
SEK 146 536 of TK’s property were confiscated. 
BRÄNNELIUS 
 
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8. According to the tingsrätten (District Court), the message that Hybricon had 
been unsuccessful in the tendering procedure constituted information of a precise 
nature relating directly to Hybricon which affected share prices. Furthermore, the 
information could not be considered to have been made public before the press 
release had been issued by Hybricon. 
The proceedings before the hovrätten (Court of Appeal) 
9. The hovrätten (Court of Appeal) altered the judgment of the tingsrätten 
(District Court) only such that OP and TK were each handed a suspended sentence 
in conjunction with 150 daily fines. 
The proceedings before the Högsta domstolen (Supreme Court, Sweden) 
10. OP and TK have claimed that the Högsta domstolen (Supreme Court) should 
exonerate them of responsibility for insider trading. They have asserted inter alia 
that the information ceased to be inside information once the award decision had 
been sent and thus became a public document that was not covered by 
confidentiality. 
11. The Riksåklagaren has countered that the judgment of the hovrätten (Court 
of Appeal) should be altered. The Riksåklagaren has stated that the award decision 
became a public document the moment it was sent, but argues that the decision 
can still have been covered by confidentiality. According to the Riksåklagaren, the 
decision constituted inside information in any event until Hybricon issued its press 
release. 
12. The Högsta domstolen (Supreme Court) granted leave to appeal on the basis 
of the findings of fact made by the hovrätten (Court of Appeal). 
13. The main question in the case is when the information in the award decision 
concerning the tendering procedure should be considered to have been made 
public and thus no longer constitute inside information. 
Legal provisions 
Insider trading 
14. Under the lagen (2016:1307) om straff för marknadsmissbruk på 
värdepappersmarknaden (Law on penalties for market abuse on the securities 
market), a person who has inside information and who, for him or herself or for 
another person, acquires or disposes of financial instruments to which the 
information relates through trading on the securities market is to be convicted of 
insider trading (see Chapter 2, Article 1, first paragraph, subparagraph 1). The 
penalty is imprisonment for a maximum of two years. If the crime is serious, the 
penalty for serious insider trading is imprisonment for a minimum of six months 
and a maximum of six years. If the deed is minor, no liability is imposed. Criminal 
liability requires that the act be committed intentionally. 
REQUEST FOR A PRELIMINARY RULING OF 21. 3. 2024 – CASE C-229/24 
 
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15. The lagen om straff för marknadsmissbruk transposes Directive 2014/57/EU 
of the European Parliament and of the Council of 16 April 2014 on criminal 
sanctions for market abuse (market abuse directive) into Swedish law. Under 
Article 3(1) of that directive, Member States must take the necessary measures to 
ensure that insider dealing in certain specified situations constitutes a criminal 
offence at least in serious cases and when committed intentionally. 
16. Under Chapter 1, Article 4 of the lagen om straff för marknadsmissbruk, 
inside information means information within the meaning of Article 7 of 
Regulation (EU) No 596/2014 of the European Parliament and of the Council of 
16 April 2014 on market abuse (market abuse regulation). The corresponding 
reference to the definition in the regulation can be found in Article 2(4) of the 
market abuse directive. 
17. Under Article 7(1)(a) of the market abuse regulation, inside information is 
defined as 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. 
Disclosure of inside information 
18. Under the market abuse regulation, an issuer must inform the public as soon 
as possible of inside information which directly concerns that issuer (Article 17). 
The issuer must ensure that the inside information is made public in a manner 
which enables fast access and complete, correct and timely assessment of the 
information by the public and, where applicable, by a specifically prescribed 
method. 
19. When an issuer has disclosed information in a manner which complies with 
the conditions under Article 17 of the market abuse regulation, the information is 
considered to have been made public within the meaning of Article 7 of the 
regulation. 
Information on the outcome of a public tendering procedure 
20. An authority which conducts a public tendering procedure must as soon as 
possible inform candidates and tenderers of decisions to award a contract or 
conclude a framework agreement (see Chapter 12, Article 12, first paragraph of 
lagen (2016:1145) om offentlig upphandling (Law on public procurement)). The 
authority must provide information on the results of the award procedure by 
means of a notice no later than 30 days after an agreement has been concluded 
(see Chapter 19, Article 7, first paragraph). There is no obligation to inform the 
public before then. 
21. An award decision may, however, constitute a public document which must 
be disclosed upon request. 
BRÄNNELIUS 
 
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Disclosure of public documents 
22. The fundamental provisions governing disclosure of documents are 
contained in Chapter 2 of the tryckfrihetsförordningen (Law on the freedom of the 
press). That chapter provides that everyone has the right of access to public 
documents, but that that right may be restricted by law under certain conditions. A 
document is public if it is deposited with an authority and is considered to have 
been received by or drawn up by an authority. The document is considered to have 
been drawn up by an authority, inter alia, when it has been sent (see Chapter 2, 
Articles 1, 2, 4 and 10). 
23. A person who requests a public document must, immediately or as soon as 
possible, be granted access to the document on the spot. Upon request, an 
authority must also – where appropriate for a fee – provide a transcript or copy of 
the document. Such a request must be processed promptly by the authority (see 
Chapter 2, Articles 15 and 16). 
24. Detailed provisions governing official procedures for disclosure of public 
documents and restrictions of the right of access to such documents are contained 
in the offentlighets- och sekretesslagen (2009:400) (Law on public access to 
information and confidentiality). Under Chapter 6, Article 4, an authority must, 
upon request by an individual, provide information from a public document 
deposited with the authority unless the information is confidential or this would 
impede the due process of the work. 
25. The right of access to public documents applies also in respect inter alia of 
limited liability companies where municipalities exercise a legally decisive 
influence. For the purposes of the application of the offentlighets- och 
sekretesslagen, such companies are to be treated in the same manner as authorities 
(see Chapter 2, Article 3). 
26. In the case of a tendering procedure, information concerning, inter alia, 
tenders may not under any circumstances be disclosed to anyone other than the 
tenderers until all tenders have been made public or the decision on the supplier 
and the tender has been made or the matter has previously been closed (see 
Chapter 19, Article 3, second paragraph of the offentlighets- och sekretesslagen). 
Even thereafter, information concerning the tender may be covered by 
confidentiality (c.f., inter alia, Chapter 31, Article 16). 
27. In the light of the foregoing, an individual, as a starting point, has the right 
to have access to an award decision that has been taken and sent by an authority or 
by a municipal company that is to be treated as an authority. The period within 
which the individual may, in practice, be informed of the decision or of its content 
can vary depending on how the authority has organised its work and on other 
circumstances. 
The need for a preliminary ruling 
REQUEST FOR A PRELIMINARY RULING OF 21. 3. 2024 – CASE C-229/24 
 
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28. The tingsrätten (District Court) and the hovrätten (Court of Appeal) found 
that the information in the award decision which the municipal company sent to 
the companies concerned constituted inside information until the moment that 
Hybricon published the press release. Those courts therefore considered that the 
sending of the award decision by the municipal company did not mean that the 
information was made public in the manner required for it no longer to be 
considered inside information under the market abuse regulation. 
29. The main question before the Högsta domstolen (Supreme Court) is when 
the information in the award decision concerning the tendering procedure should 
be considered to be made public and thus not constitute inside information. 
Accordingly, the case raises questions as to the interpretation of the expression 
‘has not been made public’ in Article 7(1)(a) of the regulation. 
30. It does not follow from Article 7(1)(a) of the regulation that all information 
which has not been disclosed publicly in the manner prescribed by Article 17 
should be considered not to have been made public. According to statements made 
by the European Securities and Markets Authority (ESMA), inside information 
can be made public in a manner other than by public disclosure under Article 17, 
including actions taken by third parties (Questions and Answers on the Market 
Abuse Regulation, version 17, last updated on 25 November 2022, A5.10). 
31. It does not, however, follow expressly from the regulation that information 
can be made public through such so-called actual public disclosure and, moreover, 
this has not been confirmed in any decision of the Court of Justice of the 
European Union. There is no further guidance on what requirements should apply 
in such cases in order for information no longer to be considered inside 
information. 
32. It is thus not clear, or clarified, how the market abuse regulation must be 
interpreted in this respect. It is therefore necessary to request a preliminary ruling 
from the Court of Justice. 
The request for a preliminary ruling 
33. The Högsta domstolen (Supreme Court) requests that the Court of Justice of 
the European Union give a preliminary ruling with a view to answering the 
following questions: 
1. Is it necessary for public disclosure to have taken place in the manner 
referred to in Article 17 of the market abuse regulation in order for information to 
be considered to have been made public in accordance with Article 7(1)(a) of the 
regulation? 
2. If public disclosure can take place in another manner, what circumstances 
should be taken into account in determining whether information should be 
considered to have been made public within the meaning of Article 7(1)(a)?