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This chapter examines Article 13, which talks about accepted market practices. In accordance with Article 3(1)(9), accepted market practice is described as a specific market practice that is accepted by a ‘competent authority’ of a given Member State in concert with provisions set out in Article 13. Accepted market practices could be potentially manipulative, but they are accepted and authorized to pursue a benefit they bring to market structure, operation, or robustness. A key requirement prior to establishing a market practice as an accepted market practice is for competent authorities to evaluate the practice and consult with relevant bodies. Emphasis is made of the fact that, where a competent authority establishes and accepts an accepted market practice in a particular market, it shall not be considered to be applicable to other markets unless the competent market authorities of those other markets have accepted that practice pursuant to this Article.

This chapter discusses Article 30 and its aims to a greater harmonization of the sanctioning regimes. Article 30(1) starts off by repeating the (former) Market Abuse Directive (2003/6/EC) requirement that Member States ensure that competent authorities have the power to take ‘appropriate administrative sanctions and other administrative measures’. It goes on to specify for which infringements of the MAR such sanctions must be provided. Article 30(2) details the sanctions and measures that must at least be available to the national competent authorities for all breaches referred to in the rest of this chapter. Finally, Article 30(3) clarifies that Member States may provide for additional powers and more severe sanctions than those established in Article 30.

This chapter is a brief overview of Article 36, which builds on the previous chapter’s provisions on delegated acts. This time the Article in question sets out the framework for the assistance for the Commission by the European Securities Committee being established in 2001. According to Article 36, the Commission is to be assisted by the European Securities Committee established by Commission Decision 2001/528/EC. The Article further remarks that this committee shall be a committee within the meaning of Regulation (EU) No 182/2011. Finally, where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

This chapter considers Article 22. This Article has two main intentions: on the one hand, it obliges the Member States to designate a single administrative authority responsible for the implementation of the Market Abuse Regulation (MAR), and to inform the Commission, the European Securities and Markets Authority (ESMA), and the authorities of the other Member States about this decision. On the other hand, this provision determines the jurisdiction of each national administrative authority, especially when it comes to cross-border cases. Article 22 thus contains the obligation for each Member State to establish an administrative authority for the purposes of the Market Abuse Regulation. Unlike other provisions of the MAR, however, Article 22 is not directly applicable.

This chapter turns to the controversial issue of insider dealing. It offers a general background for the analytical discussion of the single provisions of the Market Abuse Regulation, before taking a broad view at the evolution of the phenomenon and the legal discourse surrounding it. To that end, this chapter adopts an historical perspective, and compares and contrasts different regulatory approaches (in the United States and Europe, which offer a good template for most existing regulatory models). The economic and ethical basis invoked to support—or criticize—the prohibition of insider trading is then discussed. Finally, this chapter also addresses a few open questions or regulatory challenges that might be relevant in the next few years.

This chapter discusses the concept of market manipulation. In contrast to the prohibition of insider dealing, market manipulation is not a single act or set of different behaviours but more of a multi-layer phenomenon covering all kinds of behaviours generally not accepted in any market. In capital markets law, four different forms of market manipulation developed, which can also be found in the Market Abuse Regulation (and other European regulations). These are information-based manipulation, transaction-based manipulation, short selling, and other forms of manipulation. However, the Market Abuse Regulation does not refer expressly to each of these forms of market manipulation but defines market manipulation in its Article 12 in general.

This chapter lays down the duties for competent authorities to cooperate with ESMA in Article 24. Article 24(1) obliges the competent authorities of the Member States to cooperate with European Securities and Markets Authority (ESMA). The cooperation with ESMA has to comply with the ESMA Regulation (1095/2010/EU) and guarantee effective and uniform compliance with the Market Abuse Regulation. Article 24(2) stipulates that the national competent authorities are to provide ESMA all information necessary to fulfil its duties in accordance with Article 35 ESMA Regulation (1095/2010/EU). Furthermore, this Article seeks to ensure uniform conditions of its application. To this end, ESMA is obliged to develop implementing technical standards (ITS) and power is conferred on the Commission to adopt the ITS.

This chapter details provisions for the rules on the cooperation between competent authorities of the Member States and supervisory authorities of third countries. This is the function of Article 26. Accordingly, the Article’s first paragraph emphasizes that cooperation with authorities of third countries has to be based on a special agreement among the competent authority (of one Member State) and the supervisory authority of the third country. ESMA has to be informed about the plans to cooperate, whereby it is obliged to facilitate and coordinate the development of cooperation agreements (Article 26(2)). In addition, according to Article 26(3), cooperation agreements regarding the exchange of information may only be concluded if the information disclosed is subject to guarantees of professional secrecy.

Abstract: The Directive on Criminal Sanctions for Market Abuse (2014/57/EU) (CRIM MAD) constitutes the EU response to a big threat for the integrity of the financial markets. The measures at hand reflect not only the constant evolution in the field, but they are unprecedented too, since only recently the EU has become entitled to enact rules imposing the obligation on Member States to criminalize certain misconduct. There are, nevertheless, some controversial issues, both in terms of criminal policy options at a supranational level and about the actual harmonization of domestic criminal law among so many different legal systems.

This chapter explores some special rules for the overall processing and transfer of personal data as detailed in Article 28. The exchange of information is part of the cooperation between the competent authorities, between a competent authority and the European Securities and Markets Authority (ESMA), or between a competent authority and authorities of third countries. The exchanged information may contain personal data; therefore, special provisions concerning the processing of this information are required. Article 28 obliges the competent authorities to carry out their duties specified in this Regulation in accordance with the GDPR (2016/679/EU). The ESMA is further obliged to comply with the Regulation (EU) 2018/1725 when personal data are processed. According to the last sentence of Article 28, personal data shall only be retained for a maximum of five years.

This chapter takes a look at Article 3, from the general definitions laid out in Article 3(1) to the special definitions that are only relevant for the exemption for buy-back programmes and stabilization measures laid out in Article 5. Article 3 sets out the definitions which are the basis for the interpretation and application of the Market Abuse Regulation. The definitions in Article 3 are furthermore binding for the application of the Market Abuse Regulation. In addition, the references in Article 3 to other regulations and directives of the Union are frozen. This means that any change in these regulations or directives does not affect the application or interpretation of the definitions in Article 3 and the meaning within the interpretation and application of the Market Abuse Regulation, unless stated otherwise in the respective directive or regulation.

This chapter continues the discussion on personal data, this time focusing on Article 29. Article 29 specifically governs rules concerning the disclosure of personal data to third countries. According to this provision, the transfer of personal data to the supervisory authorities of third countries is not generally forbidden but it must occur on a case-by-case basis. A competent authority may, according to Article 29(1), transfer personal data obtained through its own activities to third countries only if the requirements of the GDPR (2016/679/EU) are fulfilled. Special requirements are listed in Article 29(2) on the disclosure of personal data received from the competent authorities of another Member State. Article 29(3) stipulates special provisions for cooperation arrangements within the meaning of Article 26; these arrangements also facilitate the exchange of personal data.

This chapter focuses on the case of disclosure or dissemination of information and recommendation produced or disseminated for the purpose of journalism or any other form of expression in the media. It also considers the application of the rules governing the freedom of the press and freedom of expression in other media, as well as the rules or codes governing the journalist profession. Article 21 provides that such disclosure or dissemination shall be assessed. This assessment will be taken into account only if specific conditions do not apply. In addition, the assessment takes into account the rules governing the freedom of the press and freedom of expression in other media and the rules or codes governing the journalism profession.

This chapter presents the concluding Article of the Market Abuse Regulation. Article 39 declares that it is binding by the twentieth day following that of its publication in the Official Journal of the European Union. Except for the articles mentioned in Article 39(2) which have to be applied by 2 July 2014, it applies only from 3 July 2016. This means that the Market Abuse Regulation has no retrospective effect. However, pursuant to Article 39(3), the Member States shall take the necessary measures to comply with Articles 22, 23, and 30; Article 31(1); and Articles 32 and 34 by 3 July 2016.

This chapter considers the exchange of information with the European Securities and Markets Authority (ESMA). With a view to increasing transparency and enhancing ESMA’s oversight of the national sanctioning practices, Article 33 contains annual and immediate reporting obligations for national competent authorities with regard to sanctions, measures, and investigations imposed in accordance with Articles 30 to 32. First, the national competent authorities must annually provide ESMA with aggregated information regarding administrative and (if applicable) criminal investigations, sanctions, penalties, and other measures. Secondly, national competent authorities must notify ESMA whenever they publish administrative or criminal sanctions or other administrative measures. Finally, Article 33 mandates ESMA to draft implementing technical standards (ITS) to determine the procedures and forms for the exchange of information regarding administrative and criminal investigations, sanctions, penalties, and other measures.

This chapter discusses Article 5’s exemption for buy-back programmes and stabilization measures. Although constituting a market manipulation, buy-back programmes and stabilization measures are widely accepted in most jurisdictions. This is because they can be justified and can be carried out for legitimate reasons. Therefore, Article 5 states that the prohibition of insider dealing and market manipulation as set out in Articles 14 and 15 does not apply to these kinds of transactions and establishes a safe harbour. To limit the effect of these transactions on the market price of the financial instruments, Article 5 sets out several conditions for buy-back programmes and stabilization measures.

This chapter analyses Article 6, which allows for a broad exemption from the Market Abuse Regulation for certain public entities. Since Article 2 states that the Market Abuse Regulation applies to all financial instruments admitted to certain markets, it also covers financial instruments being issued by public entities. While there is a need for a prohibition of insider dealing and market manipulation regarding financial instruments being issued by public entities, an unlimited application of the Market Abuse Regulation also creates a significant risk for public entities and their representatives to violate these prohibitions. This is where Article 6 comes in. However, the value of such a privilege is doubtful since it creates a significant risk for market abuse in the markets for these financial instruments, and therefore a higher risk of market failure.

This chapter covers the exercise of supervisory powers and the imposition of sanctions as laid out in Article 31. This Article is meant to supplement the long list of possible sanctions and the high maximum fines of Article 30. By introducing further measures, Article 31 avoids the risk of increasing legal uncertainty. Article 31(1) therefore introduces a minimum set of criteria that competent authorities should use in choosing the type of sanctions and setting the level of any pecuniary sanctions. Article 31(2) requires the competent authorities of the various Member States to cooperate ‘[i]n the exercise of their powers to impose administrative sanctions and other administrative measures under Article 30’ with regard to supervision, investigation, and sanctioning.