62024CJ0229_RES
Case C‑229/24 [Brännelius] (
i
)
TK and OP
v
Riksåklagaren
(Request for a preliminary ruling from the Högsta domstolen)
Judgment of the Court (Fourth Chamber) of 16 April 2026
(Reference for a preliminary ruling – Approximation of laws – Single market for financial services – Regulation (EU) No 596/2014 – Market abuse – Insider dealing – Article 7(1)(a) – Concept of ‘inside information’ – Criteria – Public information – Article 17 – Public disclosure of inside information by an issuer – Decision of a contracting authority not to award a public contract to a tenderer – Early sale of shares of that tenderer – Implementing Regulation (EU) 2016/1055 – Article 2 – Means for public disclosure of inside information)
Approximation of laws – Insider dealing and market manipulation (market abuse) – Prohibition – Inside information – Concept – Criteria – Public disclosure of inside information by an issuer of financial instruments – Decision of a contracting authority not to award a public contract to a tenderer – Early sale of shares of that tenderer – Means for public disclosure of inside information – Disclosure of information by third parties – Included – Conditions – Information accessible to the public – Not included
(European Parliament and of the Council Regulation No 596/2014, Recitals 2, 23, 24 and 49 and Arts 1, 7, 14 and 17; Commission Implementing Regulation 2016/1055, Art. 2(1); European Parliament and the Council Directive 2004/109, Art. 21)
(see paragraphs 33, 34, 37, 39, 41-47, 50-55, 57, 58, 60-62, 66-68, operative part)
Résumé
Hearing a request for a preliminary ruling from the Högsta domstolen (Supreme Court, Sweden), the Court of Justice rules on the interpretation of the concept of ‘inside information’ within the meaning of Article 7(1)(a) of Regulation No 596/2014 (
1
) and on the means for public disclosure of such information within the meaning of Article 17 of that regulation and Article 2(1) of Implementing Regulation 2016/1055. (
2
)
Following a call for tenders launched by a Swedish municipal undertaking, that undertaking sent the decision to award the contract to the recipients concerned, including the unsuccessful tenderer, Hybricon Bus Systems AB (‘Hybricon’). TK and OP, two shareholders in that company, received the information from one of its officers and placed orders to sell their shares in that company. In so doing, they limited their losses before the drop in the share price of those shares, which occurred after Hybricon issued a press release announcing that it had been unsuccessful in the tendering procedure in question.
In those circumstances, the referring court seeks to ascertain at what point in time the information in the decision to award the contract must be considered to have been made public and, accordingly, no longer constitute ‘inside information’ within the meaning of Article 7(1)(a) of Regulation No 596/2014.
Findings of the Court
First of all, the Court notes that the definition of ‘inside information’ within the meaning of Article 7(1)(a) of Regulation No 596/2014 comprises four essential elements. First, the information must be of a precise nature. Secondly, the information must not have been made public. Thirdly, it must relate, directly or indirectly, to one or more financial instruments or their issuers. Fourthly, it must be information which, if it were made public, would be likely to have a significant effect on the prices of the financial instruments concerned or on the prices of related derivative financial instruments.
Next, as regards the second element, namely that the information ‘has not been made public’, the Court states that it is an autonomous concept under EU law. In the absence of any guidance in the wording of Article 7 of Regulation No 596/2014 as to the manner in which information must be made public, account should be taken of the context of which Article 7 of that regulation forms part, in particular Article 17 thereof, under which the EU legislature intended to confer a key role on the issuer in the public disclosure of inside information. Thus, such disclosure must take place as quickly as possible and without undue delay and, moreover, must comply with specific reliability requirements and be accessible easily and in a complete and non-discriminatory manner, by all investors and other operators on the markets concerned.
As regards the requirement of swiftness in the dissemination of such information, it is only in exceptional circumstances and subject to compliance with strict conditions that the public disclosure of inside information may be delayed in order to preserve the stability of the financial system. However, if the confidentiality of that inside information is no longer ensured, the public disclosure must take place promptly and without undue delay.
As regards the requirements of reliability and easy and complete access to inside information by all investors and other market operators concerned, the Court observes that the objective of Regulation No 596/2014 is to protect the integrity of EU financial markets and to enhance investor confidence in those markets. It states that the issuer of a financial instrument, by virtue of his or her very position, which necessarily implies direct knowledge of the advantages and risks associated with the financial instrument concerned, is best placed to determine whether information bears the hallmarks of ‘inside information’, and to ensure the prompt dissemination of precise, complete and correct information relating to that financial instrument.
Lastly, the Court emphasises that Article 17 of Regulation No 596/2014 must be interpreted in the light of the provisions of Implementing Regulation 2016/1055, which specifies the arrangements for application thereof. Under Article 2(1) of that implementing regulation, in addition to the direct communication to the public of the inside information concerned by the issuer, such information may be disseminated through a third party appointed for that purpose by the issuer. Thus, the possibility cannot be ruled out that the disclosure of inside information by third parties qualified on account of their relationship with the issuer and by media may satisfy the requirements for the non-discriminatory, wide and free of charge dissemination of such information.
Moreover, the fact that, under Swedish law, the information contained in the decision to award the contract in question was accessible to the public is not tantamount to that information having been made public within the meaning of Article 7(1)(a) of Regulation No 596/2014. A distinction should be drawn between, on the one hand, information which is accessible to the public and made available to a person individually further to a request to that effect and in compliance with a specific procedure provided for that purpose and, on the other hand, information which has been made public and disseminated simultaneously to an unlimited and indeterminate circle of persons in a non-discriminatory manner.
The Court accordingly concludes that information is considered to have been made public and thereby to have ceased being ‘inside information’ when public disclosure thereof has taken place in the manner and in compliance with the requirements laid down in Article 17 of Regulation No 596/2014 and Article 2(1) of Implementing Regulation 2016/1055.
(
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.
(
1
)	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 (OJ 2014 L 173, p. 1).
(
2
)	Commission Implementing Regulation (EU) 2016/1055 of 29 June 2016 laying down implementing technical standards with regard to the technical means for appropriate public disclosure of inside information and for delaying the public disclosure of inside information in accordance with Regulation (EU) No 596/2014 of the European Parliament and of the Council (OJ 2016 L 173, p. 47).