In a case referred by the Supreme Court of Sweden (Högsta domstolen) to the Court of Justice of the European Union (the Court) concerning the Market Abuse Regulation (MAR) (Regulation 596/2014) and insider trading, Advocate General Kokott in Case C-229/24, Brännelius has delivered her Opinion.
The Supreme Court of Sweden in the case sought guidance on whether information about a public procurement decision, communicated by email to a limited group of tenderers, could be considered ‘made public’ for the purposes of the Market Abuse Regulation (Regulation 596/2014), or, whether such information only becomes public once formally disclosed, for example, via a press release.
Advocate General Kokott advised the Court that the information in question had not been ‘made public’ within the meaning of Article 7(1)(a) of the Regulation. She concluded that disclosure under Article 17 of the Regulation is not the only route to public status, but that information must be accessible to a reasonable and diligent investor to lose its ‘inside’ character. In her view, the limited email notification to five companies did not meet this threshold.
Her Opinion supports the interpretation advanced by the public prosecutor, reinforcing that insider dealing rules apply until information is genuinely accessible to the broader market.
Background and Facts
The facts of the case involves the Municipality of Umeå (Umeå kommun) in Sweden, who is the owner of a municipality company, Umeå kommunföretag AB, which in early 2018 tendered for private operators to run electric buses and charging stations for them within the city. Whilst five companies expressed interest in the public procurement, only two actually submitted bids (the tenderers).
Of the two bidders, the losing tenderer was Hybricon Bus Systems AB. Within minutes of being told by the municipality company that it was not being awarded the tender, an operating officer in Hybricon arranged for the sale of his shares to another person, who also sold their shares in Hybricon.
Later on the same day, the announcement was made by the company that it was not successful in the tender. Being a publicly traded company on a stock exchange, its share price fell immeadiately. Given that this was subsequent to the share sales by the two individuals, they both limited their potential loses, given one of them was privy to information was not, at the time of their share sale, in the public domain.
The two persons was subsequently found guilty of insider trading before a District Court (tingsrätt), and were given suspended sentences and had some financial assets seized. On appeal at the Court of Appeal (hovrätten), that court made some amendments, but upheld the conviction. An appeal was made to the Supreme Court of Sweden (Högsta domstolen).
In essence, the two persons are claiming that the particular information that came into one of their domain – that Hybricon was to be an unsuccessful tenderer – ceased being insider information once the decision had actually been sent to the five companies (two tenderers and three interested tenderers).
The Supreme Court of Sweden wants to know whether the information in the public procurement decision – the award decision sent to five companies – is to be considered as no longer to be considered confidential (thus, vindicating the two individuals), or whether the information is to be consider as no longer confidential only when the company announced in a press release of its unsuccessful tender application (thus, vindicate the public prosecutor)?
The Supreme Court of Sweden asks two questions in its reference to the CJEU.
First,
Is it necessary for public disclosure to have taken place in the manner referred to in Article 17 of the market abuse regulation in order for information to be considered to have been made public in accordance with Article 7(1)(a) of the Regulation?
And second,
If public disclosure can take place in another manner, what circumstances should be taken into account in determining whether information should be considered to have been made public within the meaning of Article 7(1)(a) of the Regulation?
Applicable law
Article 7(1)(a) of the Regulation states:
‘For the purposes of this Regulation, inside information shall comprise the following types of information:…information of a precise nature, which has not been made public, relating, directly or indirectly, to one or more issuers or to one or more financial instruments, and which, if it were made public, would be likely to have a significant effect on the prices of those financial instruments or on the price of related derivative financial instruments;…’
Article 17(1) of the Regulation states:
‘1. An issuer shall inform the public as soon as possible of inside information which directly concerns that issuer.
The issuer shall ensure that the inside information is made public in a manner which enables fast access and complete, correct and timely assessment of the information by the public and, where applicable, in the officially appointed mechanism referred to in Article 21 of Directive 2004/109/EC of the European Parliament and the Council (24). The issuer shall not combine the disclosure of inside information to the public with the marketing of its activities. The issuer shall post and maintain on its website for a period of at least five years, all inside information it is required to disclose publicly.
This Article shall apply to issuers who have requested or approved admission of their financial instruments to trading on a regulated market in a Member State or, in the case of instruments only traded on an MTF or on an OTF, issuers who have approved trading of their financial instruments on an MTF or an OTF or have requested admission to trading of their financial instruments on an MTF in a Member State.’
Opinion of the Advocate General
The case would hinges on the interpretation of these two provisions. Article 7(1)(a) of the Regulation defines ‘inside information’ as information of a precise nature, not made public, which would likely have a significant effect on the price of financial instruments if disclosed. Article 17(1) of the Regulation requires issuers to disclose inside information to the public as soon as possible in a manner that ensures fast and complete access.
The issue is therefore whether ‘made public’ in Article 7(1)(a) of the Regulation must be interpreted strictly in line with the disclosure obligations under Article 17 of the Regulation, or whether other forms of dissemination can suffice to remove the ‘inside’ character of the information.
For AG Kokott, disclosure for her must not follow Article 17. She argued that Article 7(1)(a) and Article 17 serve different purposes and should not be conflated. Article 17 imposes a disclosure obligation on issuers to ensure transparency and deter market abuse. By contrast, for her, Article 7(1)(a) is part of the punitive framework, used to determine whether someone has engaged in insider dealing.
She emphasized that the concept of ‘made public’ in Article 7(1)(a) is an autonomous concept of EU law, and must be interpreted uniformly across the EU. It does not require that information be disclosed in the formal manner prescribed by Article 17. Instead, for her, the decisive question is whether the information was accessible to a reasonable and diligent investor.
This interpretation aligns with the objective of the Regulation: to protect market integrity and investor confidence by ensuring that all investors operate on a level playing field. If information is already accessible to a reasonably diligent investor, it no longer qualifies as ‘inside information’, even if it has not been disclosed via the formal channels of Article 17.
As for the other question, in what makes information ‘public’ under Aritlce 7(1)(a), she proposed a two-step approach: first, to assess the degree of accessibility of the information from the perspective of a reasonable and diligent investor; and second, to evaluate the specific circumstances of the case to determine whether that standard was met.
She stressed that the concept of ‘public’ should not be equated with mere theoretical accessibility. For example, the fact that a document is technically a ‘public document’ under the freedom of information laws in a Member State (e.g., Sweden) does not automatically mean it is ‘public’ under the Regulation. If accessing the information requires a specific request or is subject to confidentiality restrictions, it may not be sufficiently accessible to the market.
Instead, for her, the focus should be on whether a reasonable investor, acting with due diligence, could have accessed the information in time to make an informed investment decision. This standard excludes both insiders with privileged access (active investors), as well as passive investors who fail to monitor relevant sources.
Applying this reasoning to the facts, AG Kokott concluded that the email sent to the five tenderers did not constitute public disclosure. The group of recipients was too limited, and there was no evidence that the information was accessible to the broader market or to other reasonable investors.
Moreover, public procurement law in the Member State required a formal publication of the contract award decision within 30 days, which would have reached a wider audience. Until such publication occurred, or until Hybricon’s press release, the information remained non-public. She also rejected the argument that the information was public simply because it could have been requested under national law. The need for a specific request, combined with potential confidentiality restrictions, meant that the information was not readily accessible in practice.
Operative part
Given the findings, she advised the Court to rule that:
Article 7(1)(a) of Regulation must be interpreted as meaning that:
‘(1) In order to consider information to have been ‘made public’, it is not essential for it to have been disclosed in accordance with Article 17 of that regulation.’
‘(2) Information is deemed to be ‘made public’ where it is known by or accessible to a reasonable and normally diligent investor, taking into account the circumstances of the case and the relevant rules governing its disclosure, such as those applicable to public procurement. The circumstances in which the existence of such knowledge or accessibility must be recognised in a given case are at the discretion of the national authorities and courts.’
The Opinion of AG Kokott found that only information that is actually accessible to a reasonable and diligent investor can be considered ‘made public’. Her position eseentially supports the view of the public prosecutor in this case on the interpretation of the Regulation.
Read the Opinion
The Opinion of Advocate General Kokott in Case C-229/24, Brännelius referred to the Court of Justice of the European Union by the Supreme Court of Sweden (Högsta domstolen), delivered on 10 July 2025, is available here.