Comment on C-229-24, Brännelius

A couple of weeks ago, we commented on the Court of Justice of the European Union (‘CJEU’) case C‑363/24, Finansinspektionen v Carnegie Investment Bank AB on the OBLB. The judgment followed a request for a preliminary ruling from the Swedish Supreme Court on the interpretation of the EU Market Abuse Regulation (‘MAR’). We concluded that the ruling came as no surprise. On 16 April 2026, a new judgement was delivered in another case, also originating from the Swedish Supreme Court, C-229/24, Brännelius. This judgement does come as a surprise to many, and offers two possible—but very different—interpretations.

In the Brännelius case, the publicly traded company Hybricon had lost its bid for an important public procurement contract. The manager responsible for the procurement received the information of the rejection (‘the information’) and, shortly thereafter, sent a message urging his friend to sell his Hybricon shares. The friend forwarded the information to a colleague, and the two of them sold their shares, thereby avoiding losses following the price drop that occurred when the company disclosed the information later that day. 

Most would likely think that this is a case of insider dealing according to Article 14 MAR. However, on appeal to the Swedish Supreme Court, it was argued that the information about the rejected bid was not inside information under Article 7 MAR, since the information was deemed ‘public’ in the sense that it was covered by the Swedish law on public access to official records, and thus accessible to anyone upon request. The Supreme Court referred the question to the CJEU to determine if such accessibility negates its status as inside information. The Court answered this question by crucially stating that ‘in order for information to be considered to have been made public and thereby to have ceased being ‘inside information’ within the meaning of that provision [Article 7], it is necessary for public disclosure to have taken place in the manner and in compliance with the requirements laid down in Article 17 of that regulation and Article 2(1) of Commission Implementing Regulation (EU) 2016/1055 of 29 June 2016 (…)’.

This conclusion has already sparked some debate among academics, and may be interpreted in two different ways: 

(1) that in every case and always, information is to be regarded as non-public under Article 7 MAR until it has been disclosed by the issuer of the relevant securities according to Article 17 MAR, or 

(2) that the fact that the information had been accessible to the public due to the very liberal Swedish law on public access to official records did not in itself make the price-relevant information ‘public’ within the meaning of Article 7 MAR. This requirement was only met once the information had been publicly disclosed by the issuer according to Article 17 MAR later that same day.

The distinction between the two interpretations is crucial. Interpretation (1) would significantly increase the burden to disclose information on issuers, as well as eliminate competition among professional investors for information as they would have to wait for issuer disclosure according to Article 17 MAR before trading. This would be highly detrimental to price discovery. Interpretation (2) would be more of an in casu understanding, applicable more narrowly to cases similar to the Swedish one.

Although the above-quoted passage from the CJEU gives certain credence to interpretation (1), it seems unlikely that the Court intended to posit as a general rule that disclosure according to Article 17 MAR is always necessary to make inside information public within the meaning of Article 7 MAR. It goes against the established understanding among professionals and supervisory authorities that information is considered 'public' under Article 7 if it is ‘freely observable’. The classic example is found in the British FCA guidance that trading based on witnessing a factory fire does not constitute insider dealing, as the event is open to public observation. See, similarly, Module C of the BaFin issuer guidelines, I.2.1.1, and the well-reasoned proposal of GA Kokott in the Brännelius case. On the other hand, the CJEU’s conclusion, that the mere accessibility of the information does not in itself make the information ‘public’, must also hold true in certain cases. The Brännelius case exemplifies this, as the insider-trader seemingly knew full well that the information had just become available and that, at the time of the trading, no one could yet have accessed it, even though the information was publicly accessible by law.

Several paragraphs of the judgement also support interpretation (2). In paras 35–36, the CJEU emphasises that its judgement must be understood in the specific context of the question referred by the national court (was the information ‘public’ at the time of the trading or only upon the company’s formal announcement later that day). This pits ‘accessibility by petition from the public’ against the wider dissemination attained by the issuer’s announcement. In para 36, it also appears that the CJEU explicitly focused on ‘providing the referring court with a useful answer’, and in para 63, it reiterated that the dissemination of the information in the ‘present case’ was only to a few, and thus not to the wider public, the latter achieved only when the company made its announcement. Finally, in para 67, a distinction is drawn between ‘on the one hand, information which is accessible to the public and made available to a person individually further to a request to that effect and in compliance with a specific procedure provided for that purpose and, on the other hand, information made public, disseminated simultaneously to an unlimited and indeterminate circle of persons in a non-discriminatory manner, in accordance with the requirements laid down in Article 17 of that regulation and Article 2(1) of Implementing Regulation 2016/1055.’

The CJEU also stresses the ambition of MAR to ensure a level playing field and equality among the participants in the securities markets. Correct as this is, it cannot be taken to imply a parity of information doctrine, ie that all investors must have exactly the same information when trading. There is no support for such a doctrine in MAR or the case law of the CJEU, and it would also be unattainable in practice. Even after announcements made in accordance with Article 17 MAR, all that has been achieved is to make the inside information accessible to the wider public. Still, some investors may not be aware of it, but that does not hinder informed traders from trading with those who remain unaware.

If interpretation (2) of the Brännelius case is correct, the Court insightfully emphasises that what is important when assessing whether information has been made public under Article 7 is not just the accessibility of the information in itself, but whether it is likely that others have, in fact, accessed the information. In that case, the relevant question before trading on a stock exchange when in possession of new price-relevant information is whether it is likely that the counterparty has the same information, which, since that counterparty is usually unavailable for comments, is a question of whether the information is not just accessible but likely to have been accessed at least by professional traders. This interpretation of the judgement makes sense and secures an efficient, yet fair, securities market in the EU. If the judgement is understood according to interpretation (1), then competition is badly damaged, and MAR is in need of urgent repair.

Jesper Lau Hansen is a Professor of Financial Markets Law at the University of Copenhagen.

Erik Lidman is a Professor of Corporate Law at the University of Stockholm and SCGI.

Jesper Zackrisson is a PhD Candidate at the University of Gothenburg and SCGI.