Insiderinformation – En utredning av begreppets definition i artikel 7 MAR och dess förenlighet med förordningens bakomliggande syften
Sammanfattning: On 3 July 2016, Regulation (EU) No 596/2015 of the European Parliament and of the Council of 16 April 2014 on market abuse, market abuse regulation (MAR), entered into force. MAR has been criticized due to its allegedly vague provisions and for straining issuers with extensive administration in order for them to comply with the regulation. This essay aims to investigate the definition of inside information in art. 7 MAR. It is essential for economic actors, marketplaces, authorities and courts that there is no ambiguity regarding the concept of inside information. Additionally the aim is to investigate whether the definition of inside information is formulated and interpreted in such a way that it contributes to achieving the overall goals and objectives of MAR. The concept of inside information is pivotal to the regulation. It constitutes an important basis for the other provisions in MAR, such as the prohibition of insider dealing and of unlawful disclosure of inside information, public disclosure requirements and provisions regarding insider lists. Administrative measures and criminal sanctions ensure compliance. The market abuse regulation aims to achieve an efficient and transparent market in which the public has confidence, which in turn is prerequisite for economic growth and wealth. It also aims at establishing a more uniform framework within the EU and to provide more legal certainty and less regulatory complexity for market participants through a closer definition of inside information. Market abuse harms the public confidence in securities and prevents market transparency, which is a prerequisite for trading for all economic actors and ensuring accurate pricing. Therefore, MAR contains an insider dealing prohibition as well as a public disclosure obligation for issuers. The definition of inside information consists of 4 elements. Each element requires careful consideration. The elements that have resulted in animated discussions and that require the most deliberate considerations by courts are the “precise nature” of that information and “the significance of its potential effect” on the prices of the financial instruments. Hypothetical assessments are required and there is a lack of guidance on how the elements are to be interpreted. Neither does this contribute to the uniform application nor to the legal certainty that the EU intended. However, the definition of inside information has been formulated and interpreted by the European Court of Justice in a way that creates efficiency and transparency in the securities market. The definition ensures a balance between the scope of the insider trading prohibition and the public disclosure provisions. However, some difficulties of interpretations remain and there is a need of further guidance from the EU.
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