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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
- Proposal for a Statute for a European Company
- 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
- Amendments to the Market Abuse Regulation
- 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
- VI Reform of the Market Abuse Regulation
- 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 Austria and Germany
- II France
- III Italy
- Overview
- General liability regime for material omissions and misstatements
- Insiders’ liability to market investors: the SCI case
- The issuer or the bidder in a takeover context as claimant
- The regulator as claimant: the damages to the integrity of the market
- IV The Netherlands
- Overview
- Questions under consideration
- May Civil Courts be less strict than the Market Abuse Regulation?
- May civil courts be stricter than the Market Abuse Regulation?
- Influence of the Market Abuse Regulation on the requirement of relativity
- Influence of the Market Abuse Regulation on Proof of Causal Link
- Are the courts obliged to apply the Market Abuse Regulation of their own motion?
- Proof of failure by civil parties to provide prompt public disclosure of inside information
- Conclusion
- V Spain
- Overview
- Voidance of the contract and liability vis-à-vis the counterparty
- Tort liability vis-à-vis the investors
- General clause and requirements
- Harm
- Unlawful behaviour
- Intent or negligence
- Causal link
- Legal causation or attachment (‘imputación objetiva’)
- Statute of limitations
- 7 Market Abuse Regulation in International Jurisdiction and Conflict of Laws
- 8 Criminal Sanctions
- Preliminary Material
- I Overview
- II Structure
- III Insider Dealing/Unlawful Disclosure of Inside Information (Articles 3 and 4)
- IV Market Manipulation (Article 5)
- V Sanctions (Articles 7 to 9)
- VI Conclusion: Market Abuse and the Challenges in Harmonizing Criminal Law at the EU Level
- 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
- Preliminary Material
- 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))
- VI Application of the Market Abuse Regulation and BREXIT
- Art.3: Definitions
- Preliminary Material
- 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
- Preliminary Material
- I General Remarks
- II Buy-back Programmes (Article 5(1) to (3))
- Definition of buy-back programmes
- Scope of application of buy-back programmes
- Conditions for the exemption for buy-back programmes
- Disclosure obligations (Article 5(1)(a))
- Reporting and disclosure of trades (Article 5(1)(b))
- Obligations regarding price and volume (Article 5(1)(c))
- Trading Restrictions (Article 4 Regulation 2016/1051)
- Purpose obligations (Article 5(2))
- Reporting obligations (Article 5(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
- Preliminary Material
- 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
- Preliminary Material
- I General Remarks
- Overview of Article 7
- Structure of Article 7
- Historical development
- The twofold notion of inside information
- History and evolution of the definition of inside information
- The impact of the ECJ’s case law on the definition of inside information
- The application of pre-existing Level 3 guidance under the Market Abuse Regulation
- Possible future changes to the notion of inside information
- Preliminary conclusions
- II Constitutive Elements of the (Reformed) Definition of Inside Information
- Introduction
- Information of a precise nature
- Non-public information
- Information on issuers or financial instruments
- Price-sensitive information
- III Concluding Remarks
- Art.8: Insider dealing
- Preliminary Material
- 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
- Preliminary Material
- I General Remarks
- B.10.01
- B.10.02
- B.10.03
- B.10.04
- Historical developments
- Overview on the improper uses of inside information in the Market Abuse Regulation
- Structure of Article 10
- The relationship between Article 10 and Article 17(8)
- Prohibition and sanctions
- Future (possible) developments: the need to revise the definition of inside information
- II Equal Access of Information and Unlawful Disclosure of Inside Information
- III Possession of Inside Information and Disclosure to Third Parties
- Primary and secondary insiders
- Disclosure of inside information among corporate governance members
- Disclosure of inside information to shareholders
- Disclosure of inside information in the exercise of an employment, a profession, or duties
- The exemption and its strict interpretation: the requirement of ‘normality’
- Cases of unlawful and legitimate disclosure depending on the typology of information and the receiving person
- Second-hand transfer of inside information to professionals
- Selective disclosure to shareholders, including financial statements
- Financial analysts
- Legal persons
- IV Conclusion
- Art.11: Market soundings
- Preliminary Material
- I General Remarks
- II The key terms of Article 11(1)
- III Bonds offered to qualified investors (Article 11 (1a))
- IV Delimitations: (Article 11(2))
- V The procedure: The tasks of the market participants (Article 11(3)–(11))
- Art.12: Market manipulation
- Preliminary Material
- I General Remarks
- II Concept of Market Manipulation (Article 12(1))
- Behaviour giving false or misleading signals or securing prices at abnormal or artificial levels (Article 12(1)(a))
- Employment of a fictitious or deceptive device (Article 12(1)(b))
- Dissemination of information giving false or misleading signals or securing prices at an artificial level (Article 12(1)(c))
- Manipulation of benchmark (Article 12(1)(d))
- III Behaviour considered as market manipulation (Article 12(2))
- Introduction
- Dominant position over the supply or demand of a financial product creating unfair trading (Article 12(2)(a))
- Selling or buying of financial products at the opening or closing with the effect of misleading investors (Article 12(2)(b))
- The placing of orders to a trading venue giving false or misleading signals or securing prices at artificial prices or employing a fictitious device (Article 12(2)(c))
- Taking advantage of occasional or regular access to the traditional or electronic media by voicing an opinion (Article 12(2)(d))
- The buying or selling of emission allowances with the effect of affecting the auction clearing price (Article 12(2)(e))
- IV Indicators of market manipulation (Article 12(3))
- V Legal persons (Article 12(4))
- VI Further clarifications (Article 12(5))
- VII Conclusion
- Art.13: Accepted market practices
- Preliminary Material
- I General Remarks
- II Effect of an accepted market practice (Article 13(1))
- III Establishing an Accepted Market Practice (Article 13(2))
- IV Ensuring Functioning Markets and Public Confidence (Article 13(3) and (4))
- V Publication of a Notice and Disagreements (Article 13(5) and (6))
- VI Technical Standards and Review of Accepted Market Practice (Article 13(7) and (8))
- VII Publication of Accepted Market Practice and Monitoring by ESMA (Article 13(9) and (10))
- VIII Notification of Accepted Market Practice (Article 13(11))
- IX Liquidity Contracts on an SME Growth Market (Article 13(12))
- X Technical Standards for Liquidity Contracts on an SME Growth Market (Article 13(13))
- XI 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
- Preliminary Material
- 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
- Preliminary Material
- 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
- Preliminary Material
- 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.
- Article 18(6) promoting the use of SME growth markets
- III Sanctions
- Art.19: Managers’ transactions
- Preliminary Material
- 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
- Preliminary Material
- 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
