Action brought on 21 December 2020 — Jakeliūnas v ESMA

(Case T-760/20)

(2021/C 72/41)

Language of the case: Lithuanian

Parties

Applicant: Stasys Jakeliūnas (Vilnius, Lithuania) (represented by: R. Paukštė, lawyer)

Defendant: European Securities and Markets Authority (ESMA)

Form of order sought

The applicant claims that the General Court should:

— declare that ESMA’s refusal by letter ESMA22-105-1261 of 30 October 2020 to grant the applicant’s request of 30 September 2020 that it launch an inquiry into possible market manipulation (‘the request’) is unfounded;

— order ESMA to reassess the request;

— order ESMA to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

1. The basis for the first plea in law is that: — the rules laid down by Directive 2003/6/EC of the European Parliament and of the Council (1) encompass the possible infringements specified in the request; — that directive was, from its adoption, coordinated and overseen at EU level. That is also provided for by Commission Directive 2003/124/EC (2); — Regulation (EU) No 1095/2010 of the European Parliament and of the Council (3) established ESMA, which in fact took over the functions of the bodies overseeing European securities that had operated until then and became responsible for successful implementation and oversight of Directive 2003/6/EC and investor protection; — Directive 2003/6/EC was repealed with effect from 3 July 2016; — therefore ESMA has the duty to investigate infringements of Directive 2003/6/EC that may have been committed up until the time when ESMA was established.

2. The second plea in law relates to the fact that the applicant’s request is not founded on a need to apply Regulation (EU) 2016/1011 of the European Parliament and of the Council (4) and Regulation (EU) No 596/2014 of the European Parliament and of the Council (5), enactments upon which ESMA founded its refusal.

3. The basis for the third plea in law is that: — ESMA interprets Directive 2003/6/EC too narrowly and inflexibly and unjustifiably restricts its field of application. The fact that the rules of that directive were extended and given more specific definition by Regulation (EU) No 596/2014 does not in itself mean that that directive did not encompass the possible cases of market manipulation specified in the request and does not have to be applied to them; — ESMA ignored the information submitted to it concerning possible undisclosed conflicts of interests of banks, which is information showing that Article 1(2)(c) and Article 6(5) of Directive 2003/6/EC may have been infringed.

(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).

(2) 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).

(3) Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ 2010 L 331, p. 84).

(4) Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ 2016 L 171, p. 1).

(5) 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).