The new CJEU MAR-case C-363/24, Carnegie v Finansinspektionen: a comment

On 19 March 2026, the Court of Justice of the European Union delivered its judgment in Case C-363/24, Finansinspektionen v Carnegie Investment Bank AB. The judgment concerns the interpretation of the requirement of precise nature in Articles 7.1 a) and 7.2 of the Market Abuse Regulation.

The background to the case was that the CEO of the listed company Starbreeze AB owned shares in Starbreeze through his holding company Varvtre AB. Varvtre had a depository loan with Carnegie Investment Bank AB. As collateral for the loan, Varvtre had pledged shares in Starbreeze. According to the loan terms, Carnegie had the unilateral right to realise the pledged shares in the event that the collateral for the loan was no longer adequate. 

Following a drop in the Starbreeze share price, an under-collateralisation of approximately SEK 5 million arose, and on November 15, 2018, Carnegie initiated a sale of the collateral. At 13:32, Starbreeze’s Head of Communications, who also assisted the CEO and his holding company Varvtre in relation to Carnegie, informed Carnegie by email that the CEO had been added to an insider list, and could therefore not sell Starbreeze shares as of 13:33. 

The same day, at 13:35, an insider list was opened in Starbreeze and the CEO was registered at 13:37. According to the Head of Communications, the CEO’s inclusion on the insider list was due to the CFO’s resignation—a detail not communicated to Carnegie. Upon receiving the email, Carnegie suspended the sale of Starbreeze shares, but resumed it again in the afternoon. 

On November 23, Starbreeze publicly disclosed that the company’s revenues were lower than expected and that the CFO had stepped down. The Swedish Financial Supervisory Authority later issued an administrative sanction against Carnegie. The authority claimed that Carnegie had breached Articles 8 and 14 of MAR since it had sold shares in Starbreeze while having access to inside information in the company. The authority’s decision was upheld by the Swedish lower court, but overturned by the appeal court before being brought before the Supreme Court of Sweden. The Supreme Court then referred four questions to the Court of Justice of the European Union (‘the CJEU’): 

• The first question concerned whether a communication stating that a person is included in an insider list and prohibited from selling shares constitutes information of a precise nature under Article 7(2) of MAR, even if the reasons for the inclusion are unclear.
• The second question sought to clarify under what specific conditions such a communication qualifies as inside information.
• The third and fourth questions concerned whether this classification depends on the legal or factual accuracy of the issuer’s original assessment regarding the circumstances leading to the insider list inclusion.

In relation to questions 1 and 2, the CJEU held that information that a person has been added to an insider list cannot in principle, by itself, constitute inside information. For it to constitute inside information, more information must be added. The addition that ‘the person on the list may not sell shares’ may, according to the CJEU, constitute such additional information which turns the information into inside information, as it could indicate the price direction that the information is expected to cause on the securities in question upon disclosure. The CJEU added that it is also necessary to establish that a reasonable investor would use the information as part of their investment decision and that the information places the recipient in a better position of knowledge than others in the market, thereby enabling them to use the information in their trading.

The CJEU’s conclusion comes as no surprise. Admittedly, it is now clear that the mere fact that someone has been included in an insider list cannot in itself constitute information of a precise nature. However, it must have been clear even before that the assessment may change if further information—which makes it possible to draw conclusions about the meaning of the information—allows for a more complete assessment of the information. Of more general interest, the court, in answering questions 1 and 2, seems to continue its distancing from the hard separation between ‘precise nature’ and ‘significant price effect’ that the Court laid down in case C-144/04 (Geltl). In the Carnegie-decision, the Court does not isolate the tests concerning ‘precise nature’ and ‘significant price effect’, but instead seems to rely on the reasonable investor test when determining the specificity of the information. Here, the court seems to be drawing on the reasoning in C-302/20 (AMF). That the Court states that it may be relevant to consider if the information allows one to draw conclusions regarding the direction of the possible effect on the share price when determining if information constitutes inside information also raises the question of how the case relates to the Court’s decision in case C-628/13 (Lafonta), where the Court held that information on the direction of the price effect is not a necessary element to decide if information constitutes inside information. 

Regarding questions 3 and 4, the CJEU held that the information must be assessed in its entirety and at the time of its communication to the public. The fact that the information later proves to be incorrect or does not materialise despite having been assessed as likely to occur is irrelevant. Information can qualify as inside information if, at the time that it was disclosed, it could be regarded as credible and likely to provide an economic advantage to the recipient. When assessing whether the information is credible, particular importance must be attached to the reliability of the source of the information. The fact that the CEO was not included in the insider list at the time when the email reached Carnegie was therefore irrelevant.

The ruling that the information does not need to be proven correct in retrospect comes as no surprise either. It follows from Articles 7.1 and 7.2 of MAR that even events which have not yet occurred may be classified as inside information if it is deemed probable that the event to which the information relates will occur. It logically follows that the information could be precise enough even if the expected event ultimately fails to materialise. Further, though the CEO was not yet ‘formally’ included in the insider list, the inclusion was certain. 

Whereas the categorisation of the information in the email of 15 November as inside information was not novel, it is interesting that the Court did not simply answer the Swedish Supreme Court’s question, but went further by observing that even when the information about a person’s inclusion on the insider list does constitute inside information due to an assessment of any additional information provided in that context—here, that the CEO was prevented from selling shares—the sale of the shares by Carnegie did not necessarily constitute insider dealing. The Court pointed to Article 9(3) of MAR, noting that possession of inside information does not in itself constitute insider dealing under Article 8 of MAR, as per Recital 23, if the transaction is justified by circumstances already in place before the inside information was received. 

It will be up to the national court to make the assessment according to Article 9(3) of MAR. This may prove important as Carnegie’s sale of shares was conducted in accordance with a preexisting agreement with Varvtre and was carried out to cover accrued losses on Varvtre’s account. It may be argued that the sale was done to cover a loss and not to make use of any inside information that had subsequently come into Carnegie’s possession. In that case, the sale would not constitute insider dealing regardless of whether Carnegie possessed inside information or not.

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.