62020CJ0302_RES
Case C‑302/20
Mr A
v
Autorité des marchés financiers (AMF)
(Request for a preliminary ruling from the Cour d’appel de Paris)
Judgment of the Court (Grand Chamber), 15 March 2022
(Reference for a preliminary ruling – Single Market for financial services – Market abuse – Directives 2003/6/EC and 2003/124/EC – ‘Inside information’ – Concept – Information ‘of a precise nature’ – Information relating to the forthcoming publication of a press article reporting a market rumour about an issuer of financial instruments – Unlawfulness of the disclosure of inside information – Exceptions – Regulation (EU) No 596/2014 – Article 10 – Disclosure of inside information in the normal exercise of a profession – Article 21 – Disclosure of inside information for the purpose of journalism – Freedom of the press and freedom of expression – Disclosure by a journalist, to a usual source, of information relating to the forthcoming publication of a press article)
Approximation of laws – Insider dealing and market manipulation (market abuse) – Prohibition – Inside information – Information of a precise nature – Concept – Information relating to the forthcoming publication of a press article reporting a market rumour about an issuer of financial instruments – Included – Criteria for assessment
(European Parliament and Council Directive 2003/6, Art. 1(1); Commission Directive 2003/124, Art. 1(1))
(see paragraphs 33, 36, 38, 41, 42, 46, 48-51, 52, 55-57, operative part 1)
Approximation of laws – Insider dealing and market manipulation (market abuse) – Prohibition – Inside information – Disclosure or dissemination of information in the media – Disclosure for the purpose of journalism – Concept – Disclosure by a journalist, to one of his or her usual sources, of information relating to the forthcoming publication of a press article concerning an issuer of financial instruments – Inclusion – Condition
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(3); European Parliament and Council Regulation No 596/2014, recital 77 and Arts 10 and 21)
(see paragraphs 64-66, 69-71, operative part 2)
Approximation of laws – Insider dealing and market manipulation (market abuse) – Prohibition – Inside information – Unlawful disclosure – Exceptions – Disclosure for the purpose of journalism – Disclosure by a journalist, to one of his or her usual sources, of information relating to the forthcoming publication of a press article reporting a market rumour concerning an issuer of financial instruments – Inclusion – Conditions – Disclosure necessary for the exercise of the profession – Observance of the principle of proportionality
(Charter of Fundamental Rights of the European Union, Arts 11 and 52(1); European Parliament and Council Regulation No 596/2014, recital 77 and Arts 10 and 21)
(see paragraphs 75-78, 80, 81-83, 85-89, operative part 3)
Résumé
For many years, Mr A worked as a journalist for various British daily newspapers. As part of his work, he wrote articles reporting market rumours. Two of those articles – which were published on the website of the Daily Mail newspaper – related specifically to securities admitted to trading on Euronext.
Thus, the first article referred to a possible takeover bid by the company LVMH for the shares of the company Hermès. The day after that publication, the price of those shares increased during the course of the trading session. The second article stated that the shares of the company Maurel & Prom could be the subject of a takeover bid. The day after that article was published, the price of those shares had increased significantly at the close of the stock exchange.
In the course of an investigation carried out by the Autorité des marchés financiers (AMF) (Financiers Markets Authority, France), it was revealed that, shortly before the publication of the two articles at issue, purchase orders had been made for shares of the companies Hermès and Maurel & Prom, respectively, by British residents who sold their shares following the publication of those articles. The Penalties Commission of the AMF found that Mr A had disclosed to two persons inside information concerning the forthcoming publication of two articles reporting rumours about the launch of takeover bids for the shares of the abovementioned companies and imposed a fine of EUR 40000 on him.
By its judgment, delivered by the Grand Chamber, the Court rules on the concept of ‘inside information’, within the meaning of the directives on insider dealing and market manipulation, (
1
) with regard to information relating to the forthcoming publication of a press article reporting a market rumour concerning an issuer of financial instruments, in particular as regards the requirement of precision necessary for the classification of inside information. It also sets out the circumstances in which it may be considered that the disclosure of such information, by a journalist, to one of his or her usual sources of information is made, lawfully, for the purpose of journalism, within the meaning of the market abuse regulation. (
2
)
Findings of the Court
First of all, as regards the requirement of precision necessary for information to be classified as inside information, the Court notes that information is deemed to be precise if it is apparent from an examination carried out on a case-by-case basis that it refers, inter alia, to an event which may reasonably be expected to occur and if it is specific enough to enable a conclusion to be drawn as to the possible effect of that event on the prices of the financial instruments concerned. Moreover, that nature cannot, as a matter of principle, be excluded merely because the information in question falls within a particular category of information such as information relating to the forthcoming publication of an article reporting a market rumour. In that regard, given that a rumour is characterised by a degree of uncertainty, it is necessary to take into account the degree of precision of the content of that rumour and the reliability of the source relaying it. Similarly, the reputation of the journalist who authored the press articles and that of the media organisation publishing those articles may be regarded as decisive, depending on the circumstances of the case, since those factors make it possible to assess the credibility of the rumours concerned.
Accordingly, information relating to the forthcoming publication of a press article reporting a market rumour about an issuer of financial instruments is capable of constituting information ‘of a precise nature’. The reference in that press article to the price at which the issuer’s securities would be purchased, in the context of a possible takeover bid, as well as the identity of the journalist who authored that article and of the media organisation publishing it are relevant to the assessment of that nature, in so far as those factors were disclosed before that publication. As regards the actual effect of that publication on the prices of the securities to which it relates, while it may constitute ex post evidence of the precise nature of that information, it is not sufficient, in itself, in the absence of an examination of other factors known or disclosed prior to that publication, to establish that precise nature.
Next, as regards the disclosure by a journalist of inside information to one of his or her usual sources of information, the Court points out that the words ‘for the purpose of journalism’ (
3
) refer not only to disclosures of information by the publication of information but also to those which form part of the process leading to that publication. In order to take account of the importance, in every democratic society, of the freedom of press and the freedom of expression, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’), those words must be interpreted broadly. Accordingly, disclosure made in the context of investigative work carried out by a journalist in preparation for publication may constitute a disclosure of information for the purpose of journalism.
Consequently, the disclosure by a journalist, to one of his or her usual sources of information, of information relating to the forthcoming publication of a press article authored by him or her reporting a market rumour is made ‘for the purpose of journalism’ where that disclosure is necessary for the purpose of carrying out a journalistic activity, which includes investigative work in preparation for publication.
Lastly, the Court notes that the provision in the market abuse regulation concerning the disclosure or dissemination of information in the media (
4
) does not constitute an independent basis, derogating from the provision of that regulation concerning the unlawful disclosure of inside information, (
5
) for determining whether the disclosure of inside information for the purpose of journalism is lawful or unlawful. The exception to the prohibition on the disclosure of such information laid down in the latter provision must, however, be interpreted in such a way as to safeguard the effectiveness of the former provision, having regard to its purpose, namely the observance of the freedom of the press and the freedom of expression in other media, as guaranteed, in particular, by Article 11 of the Charter. Accordingly, the disclosure of inside information by a journalist is lawful where it is regarded as being necessary for the exercise of his or her profession and as complying with the principle of proportionality. The assessment of the necessity and proportionality of such a disclosure must comply with the requirements imposed by the Charter. (
6
)
Therefore, as regards, in the first place, the requirement that such disclosure must be necessary for the performance of a journalistic activity, it is necessary to examine whether that disclosure went beyond what was necessary in order to verify the information contained in the publication at issue. In particular, as regards the verification of information relating to a market rumour, it must be examined whether it was necessary for the journalist to disclose to a third party, in addition to the content of the rumour in question, the specific information relating to the forthcoming publication of an article reporting that rumour.
In the second place, in order to determine whether that disclosure is proportionate, it is necessary to take into account the potentially dissuasive effect of such a prohibition on the exercise of journalistic activity, including preparatory investigations and to ascertain whether, in making the disclosure concerned, the journalist acted in compliance with the rules and codes governing his or her profession. (
7
) It is also necessary to take into consideration the negative effects of the disclosure of the inside information in question on the integrity of the financial markets. In particular, in so far as insider dealing occurred following that disclosure, that insider dealing is liable to lead to financial losses for other investors and, in the medium term, a loss of confidence in the financial markets.
It follows that the disclosure of inside information undermines not only the private interests of certain investors but also, more generally, the public interest in ensuring full and adequate transparency of the market, in order to protect its integrity and to ensure the confidence of all investors. Accordingly, it is also for the referring court to take into account the fact that the public interest which may have been pursued by that disclosure is in opposition, not only to private interests, but also to a public interest.
(
1
)	Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (OJ 2003 L 96, p. 16), Article 1(1); 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), Article 1(1).
(
2
)	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).
(
3
)	Article 21 of Regulation No 596/2014.
(
4
)	Article 21 of Regulation No 596/2014.
(
5
)	Article 10 of Regulation No 596/2014.
(
6
)	Article 52(1) of the Charter.
(
7
)	Article 21 of Regulation No 596/2014.