On 10 July 2025, Advocate General Campos Sánchez-Bordona delivered his Opinion in Case C‑363/24, Swedish Financial Supervisory Authority (Finansinspektionen) v Carnegie Investment Bank AB. The case was referred to the Court of Justice of the European Union by the Supreme Court of Sweden (Högsta domstolen) The case concerns the interpretation of ‘inside information’ under Article 7 of the Market Abuse Regulation (Regulation 596/2014), and whether a communication stating that a person has been added to an insider list, without disclosing the reasons, can qualify as inside information.
Advocate General Campos Sánchez-Bordona concluded that such a communication, in principle, does not meet the threshold of ‘precise’ information required under Article 7(2) of the Regulation. While the inclusion of a person on an insider list is a regulatory obligation, it does not inherently signal market-sensitive information. However, he acknowledged that if the communication includes or implies the reasons for the inclusion, particularly if they suggest adverse developments, then it may qualify as inside information. He went on to distinguish between truthfulness and credibility, arguing that even if the information later proves incorrect, it may still be inside information if it was credible and precise enough to influence an investor’s decision at the time it was received.
Note: this is the second such Opinion in a Swedish case before the Court at present concerning the Market Abuse Regulation. The other related case, Case C-229/24, Brännelius, saw an Opinion delivered by AG Kokott (analysed here). Both cases are currently pending before the Fourth Chamber of the Court, but remain separate independent cases, and will receive separate judgments from the Court, despite their relatability.
Background and Facts
Before the referring national court is a dispute between the Swedish Financial Supervisory Authority (Finansinspektionen) and a legal person, Carnegie Investment Bank AB. At the heart of the matter is whether an email stating that a company executive had been added to an insider list, and was prohibited from selling shares, constitutes ‘inside information’ under the Market Abuse Regulation (Regulation 596/2014).
The background involves Varvtre AB, a company owned by BAK, and a major shareholder of the listed company Starbreeze AB. Varvtre had a credit facility with Carnegie, secured by Starbreeze shares. When the share price dropped, the collateral became insufficient, prompting Carnegie to initiate a sale of the pledged shares.
On 15 November 2018, Starbreeze’s head of communications emailed Carnegie, stating that BAK had been added to the company’s insider list, and could not sell shares. The insider list was officially updated minutes later. Carnegie paused the sale, but resumed it later that day, ultimately selling shares worth over SEK 16 million, limiting Varvtre’s losses.
In proceedings before a first instance district court (tingsrätt), it found that the email constituted inside information, but the appellate court, a court of appeal (hovrätt) disagreed, finding the message too vague.
The Supreme Court of Sweden (Högsta domstolen) referred four questions in a reference for a preliminary ruling to the Court, essentially asking whether such a communication, absent the reasons for inclusion, can be considered inside information, and whether the truth or correctness of the information matters. In legal terms, the questions were:
- Can a communication that a particular person has been included in an insider list and is prevented from selling shares in an issuer be of a sufficiently specific nature to constitute inside information under Article 7(2) of the Market Abuse Regulation, even if the reasons for the person’s inclusion are not clear?
- If that is the case, then under what conditions?
- Is it relevant to the assessment of whether a communication of the kind referred to in the above constitutes inside information, if the issuer’s assessment that the circumstances which led to the person’s inclusion in the insider list constituted inside information was correct?
- Is it relevant to the assessment of whether a communication such as that referred to in the above constitutes inside information, if the information contained in the communication was correct?
Opinion of the Advocate General
In his Opinion, Advocate General Campos Sánchez-Bordona gave his interpretation of ‘inside information’ under Article 7 of the Market Abuse Regulation. He set out Article 7(1)(a) of Regulation, which defines inside information as: non-public, of a precise nature, relating to an issuer or financial instrument, and likely to significantly affect prices if made public. He further set out Article 7(2) of the Regulation, which states that information is ‘precise’ if it refers to a set of circumstances or an event that exists or may reasonably be expected to occur, and is specific enough to allow a conclusion about its potential price impact. For him, he emphasised that all four criteria under Article 7(1)(a) must be met independently and cumulatively.
The Advocate General tackled the first two questions together on whether a communication about someone being added to an insider list, without explanation, can be ‘precise’ enough to qualify as inside information. He acknowledged that insider lists are important regulatory tools, but their mere existence or update does not automatically imply the presence of inside information. For him, the inclusion of a person on such a list is often a compliance measure, not a market signal. Thus, the communication in question lacked context, as it did not explain why BAK was added to the list. Without knowing the underlying reason, the recipient (Carnegie) could not assess the price sensitivity of the information. The message was neutral in tone, and did not contain any negative or specific financial data. Thus, the Advocate General concluded that such a communication, in isolation, is not sufficiently precise to qualify as inside information. However, he left room for nuance: if the communication had included or implied the reason for the inclusion, such as adverse developments, it might have crossed the threshold into inside information.
He then addressed the third and fourth questions on whether it matters whether the issuer’s assessment was correct, or whether the information was factually accurate? Here, the Advocate General made a distinction between truthfulness and credibility: truthfulness refers to whether the information is factually correct, whereas credibility refers to whether the information appears reliable and plausible at the time it is received. He argued that credibility is the decisive factor. Even if the information later turned out to be false or mistaken, it can still be inside information, if it was credible and precise enough to influence an investor’s decision at the time. For him, this aligned with the ex ante perspective of Regulation, in that what matters is whether the information could reasonably influence an investor’s decision when it was received, and not whether it was ultimately confirmed. In this case, the Advocate Gneral noted that the email was sent at 13:32, and BAK was officially added to the insider list at 13:37. The five-minute gap did not undermine the credibility of the message. However, the lack of detail in the email meant that it still failed the precision test.
The Advocate General emphasized that insider information must be assessed on a case-by- case, considering: the content of the communication, the context in which it was sent, and the recipient’s ability to draw conclusions about price impact.
And thus, given this, he was evidently skeptical about any assumptions being drawn on whether all insider list updates are inherently price-sensitive. Such an assumption would, for him, undermine the purpose of Regulation, which is to ensure market integrity and equal access to information.
Given this analysis, he reasoned that the Court should answer the Supreme Court of Sweden’s reference for a preliminary ruling in the following way:
‘Article 7(2)…[of the Market Abuse Regulation]…must be interpreted as meaning that the mere communication that a company executive has been included on the insider list is, in principle, not sufficiently precise to qualify as inside information. However, the information contained in a communication about the inclusion of an executive on the insider list with a prohibition on selling financial instruments could be sufficiently precise to qualify as inside information only if it can be shown to be capable of objectively influencing the price of the financial instruments concerned in such a way that the recipient derives a benefit from that information that places him or her in a more favourable position compared to other investors in terms of trading in those financial instruments.
For the information sent to an investor in a communication such as that described to be classified as inside information, it is sufficient that – having met the other requirements of Article 7(2) of…[the]…Regulation…its content is credible, even if it is subsequently revealed to be erroneous, provided that the recipient is likely to derive a benefit from that information through being placed in a more favourable position than other investors in trading in financial instruments.’
This in plain terms means that he leans toward Carnegie’s position (and not the Swedish Financial Supervisory Authority), that the email stating BAK had been added to the insider list, without further context or explanation, did not constitute inside information under Article 7 of the Regulation given that such communication was, in principle, not sufficiently precise to qualify as inside information, unless it included or implied additional details that could objectively influence the price of the financial instruments. This supports the appellate court’s view that the information was too vague.
The judgment of the Court (Fourth Chamber) is awaited.
Read the Opinion
The Opinion of Advocate General Campos Sánchez-Bordona, delivered on 10 July 2025 in Case C‑363/24, Swedish Financial Supervisory Authority (Finansinspektionen) v Carnegie Investment Bank AB, referred to the Court of Justice of the European Union by the Supreme Court of Sweden (Högsta domstolen), can be read here.