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Contents
- Preliminary Material
- Main Text
- Part A Annotated Guide
- 1 History, Application, Interpretation, and Legal Sources of the Market Abuse Regulation
- Preliminary Material
- I The Market Abuse Regulation as a European Regulation
- II Historical Development
- A.1.03
- The Segré Report of 1966
- The (original) Stock Exchange Listing Directive (1979/279/EEC)
- The Insider Dealing Directive (1989/592/EEC)
- The (new) Stock Exchange Listing Directive II (2001/34/EC)
- The (former) Market Abuse Directive (2003/6/EC)
- The Market Abuse Regulation as part of the capital markets union
- III Interpretation of the Market Abuse Regulation
- IV Legal Sources of the (New) Market Abuse Regime
- V Additional Regulation of Market Abuse by the Member States
- 2 The Concept of Insider Dealing
- 3 The Concept of Market Manipulation
- Preliminary Material
- I Historical Development of the Prohibition of Market Manipulation
- II Prohibition of Market Manipulation in European Capital Markets Law
- III Forms of Market Manipulation
- IV Market Manipulation and Insider Trading
- V The ‘Missing’ Intent Requirement for Market Manipulation
- VI Enforcement of the Prohibition of Market Manipulation
- VII Market Manipulation and General Criminal Law
- 4 Public Disclosure of Inside Information and Market Abuse
- 5 Public Enforcement of the Market Abuse Regulation
- 6 Private Enforcement of the Market Abuse Regulation in European Law
- Preliminary Material
- I Introduction
- II Questions under Consideration
- III May Civil Courts Be Less Strict than the Market Abuse Regulation?
- IV May Civil Courts Be Stricter than the Market Abuse Regulation?
- V Influence of the Market Abuse Regulation on the Requirement of Relativity
- VI Influence of the Market Abuse Regulation on Proof of Causal Link
- VII Are the Courts Obliged to Apply the Market Abuse Regulation of their Own Motion?
- VIII Proof of Failure by Civil Parties to Provide Prompt Public Disclosure of Inside Information
- IX Conclusion
- 1 History, Application, Interpretation, and Legal Sources of the Market Abuse Regulation
- Part B Commentary
- 1 General Provisions
- Art.1: Subject matter
- Art.2: Scope
- I General Remarks
- II Primary Scope of Application (Article 2(1))
- B.2.03
- Financial instruments admitted to trading on a regulated market (Article 2(1)(a))
- Financial instruments traded on a multilateral trading facility (MTF) (Article 2(1)(b)
- Financial instruments traded on an organized trading facility (OTF) (Article 2(1)(c))
- Other financial instruments (Article 2(1)(d))
- Extension to regulated markets of emission allowances (Article 2(1) subs. 2)
- III Extended Scope of Application for the Prohibition of Market Manipulation (Article 2(2))
- IV No Limitation to Transactions, Orders, or Behaviour on Trading Venues (Article 2(3))
- V Territorial Scope of Application (Article 2(4))
- Art.3: Definitions
- I General Remarks
- II General Definitions (Article 3(1))
- B.3.03
- Financial instrument (Article 3(1)(1))
- Investment firm (Article 3(1)(2))
- Credit institution (Article 3(1)(3))
- Financial institution (Article 3(1)(4))
- Market operator (Article 3(1)(5))
- Regulated market (Article 3(1)(6))
- Multilateral trading facility (Article 3(1)(7))
- Organized trading facility (Article 3(1)(8))
- Accepted market practice (Article 3(1)(9))
- Trading venue (Article 3(1)(10))
- SME growth market (Article 3(1)(11))
- Competent authority (Article 3(1)(12))
- Person (Article 3(1)(13))
- Commodity (Article 3(1)(14))
- Spot commodity contract (Article 3(1)(15))
- Spot market (Article 3(1)(16))
- Buy-back programme (Article 3(1)(17))
- Algorithmic trading (Article 3(1)(18))
- Emission allowance (Article 3(1)(19))
- Emission allowance market participant (Article 3(1)(20))
- Issuer (Article 3(1)(21))
- Wholesale energy product (Article 3(1)(22))
- National regulatory authority (Article 3(1)(23))
- Commodity derivatives (Article 3(1)(24))
- Person discharging managerial responsibilities (Article 3(1)(25))
- Person closely associated (Article 3(1)(26))
- Data traffic records (Article 3(1)(27))
- Person professionally arranging or executing transactions (Article 3(1)(28))
- Benchmark (Article 3(1)(29))
- Market maker (Article 3(1)(30))
- Stake-building (Article 3(1)(31))
- Disclosing market participant (Article 3(1)(32))
- High-frequency trading (Article 3(1)(33))
- Information recommending or suggesting an investment strategy (Article 3(1)(34))
- Investment recommendations (Article 3(1)(35))
- Exemptions for buy-back programmes and stabilization (Article 3(2))
- Art.4: Notifications and list of financial instruments
- Art.5: Exemption for buy-back programmes and stabilisation
- I General Remarks
- II Buy-back Programmes (Article 5(1) to (3))
- III Stabilization (Article 5(4) and (5))
- IV Competence to Develop Regulatory Technical Standards (Article 5(6))
- Art.6: Exemption for monetary and public debt management activities and climate policy activities
- I General Principles
- II Exemption of Monetary, Exchange Rate, or Public Debt Management (Article 6(1))
- III Exemption for Transactions, Orders, or Behaviour Carried Out by the Commission (Article 6(2))
- IV Exemption for Climate Policy (Article 6(3))
- V Exemption for Agricultural and Fisheries Policy (Article 6(4))
- VI Adoption of Delegated Acts to Certain Public Bodies and Central Banks of Third Countries (Article 6(5))
- VII Adoption of Delegated Acts to Public Bodies of Third Countries (Article 6(6))
- VIII No Application to Persons Working for the Entities (Article 6(7))
- 2 Inside Information, Insider Dealing, Unlawful Disclosure of Inside Information, and Market Manipulation
- Art.7: Inside information
- I General Remarks
- Overview of Article 7
- Structure of Article 7
- Historical development
- II Constitutive Elements of the (Reformed) Definition of Inside Information
- Introduction
- Information of a precise nature
- Non-public information
- Price-sensitive information
- III Concluding Remarks
- I General Remarks
- Art.8: Insider dealing
- I General Remarks
- II Section 1: Behaviour that Constitutes Insider Dealing
- III Section 2: Tipping
- IV Section 3: Tippee Liability
- V Section 4: Primary and Secondary Insiders
- VI Section 5: Legal Persons as Insiders
- VII Section 6: The Subjective Condition—Mens Rea
- Art.9: Legitimate behaviour
- Art.10: Unlawful disclosure of inside information
- I General Remarks
- II Equal Access of Information and Unlawful Disclosure of Inside Information
- III Possession of Inside Information and Disclosure to Third Parties
- IV Conclusion
- Art.11: Market soundings
- I General Remarks
- II Contours of Market Sounding
- III Nature and Functionality
- IV Sections 1, 2, and 3: What Constitutes a Market Sounding
- V Sections 4 and 5: Unlawful Disclosures
- VI Section 7: Market Sounding Recipient to Determine whether They Have Inside Information
- VII Section 11: Receiving Information: Factors to Consider
- Art.12: Market manipulation
- Art.13: Accepted market practices
- I General Remarks
- II Section 2: The Concept of Accepted Market Practice
- III Establishing an Accepted Market Practice
- IV Section 3: Ensuring Functioning Markets and Public Confidence
- V Section 5: Publication of a Notice
- VI Section 7: Technical Standards
- VII Section 9: Accepted Market Practice
- VIII Section 11: Notification of Accepted Market Practice
- IX Legal Protection
- Art.14: Prohibition of insider dealing and of unlawful disclosure of inside information
- Art.15: Prohibition of market manipulation
- Art.16: Prevention and detection of market abuse
- I General Principles
- II Arrangements, Systems, and Procedures to Prevent Market Abuse (Article 16(1))
- III Detection and Reporting of Suspicious Orders and Transactions (Article 16(2))
- IV Notification System (Article 16(3))
- V Transmission of Notifications (Article 16(4))
- VI Development of Technical Regulatory Standards (Article 16(5))
- VII Prevention and Detection of Market Abuse and Compliance
- Art.7: Inside information
- 3 Disclosure Requirements
- Art.17: Public disclosure of inside information
- I General Remarks
- II The Requirement to Disclose Inside Information Publicly
- The general requirement of continuous disclosure
- The limited right to delay disclosure
- III Sanctions
- Art.18: Insider lists
- I General Remarks
- II Insider Lists: Information and Template
- Introduction
- The information to be provided in the insider lists
- The structure of insider lists
- Potential vs effective insiders
- The definition of permanent insiders
- The format of insider lists
- The interpretation of Article 18(2)(2): the full responsibility of the issuers
- The impact of the new regulation on permanent insider lists
- III Sanctions
- Art.19: Managers’ transactions
- I General Remarks
- II Critical Remarks
- Persons discharging managerial responsibilities within an issuer and closely associated persons
- Transparency
- The type of transactions
- Format and template
- Timing and means of notification
- Threshold
- Closed period
- Impact of Article 19 on issuers, persons discharging managerial responsibilities within an issuer, and closely associated persons
- III Sanctions
- Art.20: Investment recommendations and statistics
- I General Remarks
- II Critical Remarks
- The definitions provided by the Market Abuse Regulation
- General standard of objective presentation of investment recommendations
- Distribution channels
- Non-written recommendations
- Identity of the producers of recommendations
- Disclosure of interests or of conflicts of interests
- Dissemination of information produced by third parties
- The impact of the Market Abuse Regulation disclosure obligations for investment recommendations
- III Sanctions
- Art.21: Disclosure or dissemination of information in the media
- Art.17: Public disclosure of inside information
- 4 ESMA and Competent Authorities
- Art.22: Competent authorities
- Art.23: Powers of competent authorities
- Art.24: Cooperation with ESMA
- Art.25: Obligation to cooperate
- Art.26: Cooperation with third countries
- Art.27: Professional secrecy
- Art.28: Data protection
- Art.29: Disclosure of personal data to third countries
- 5 Administrative Measures and Sanctions
- Art.30: Administrative sanctions and other administrative measures
- Art.31: Exercise of supervisory powers and imposition of sanctions
- Art.32: Reporting of infringements
- Art.33: Exchange of information with ESMA
- Art.34: Publication of decisions
- 6 Delegated Acts and Implementing Acts
- 7 Final Provisions
- 1 General Provisions
- Part A Annotated Guide
- Further Material
