Clifford Chance
Spector Photo Group NV: Towards a common view on insider dealing?
13 October 2009
On 10 September 2009, Advocate General Kokott issued her opinion in the case of Spector Photo Group NV v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA) (case C-45/08). Having considered the interpretation of the insider dealing restriction in Article 2 of the Market Abuse Directive (2003/6/EC) ("MAD"), she concluded that, as a general rule, possessing inside information which a person knows or ought to know is inside information and acquiring or disposing of financial instruments to which the information relates is sufficient to constitute insider dealing – there is no requirement of intent to use the information. However, at the same time, the Advocate General acknowledged that certain exceptions exist to this general rule.
If the European Court of Justice ("ECJ") follows the Advocate General's opinion, the Member States and the European regulatory authorities may be forced to find a common view on insider dealing. Belgium may find that its current insider dealing legislation is too stringent, while the regulatory authorities of other Member States may find it significantly easier to take enforcement action for insider dealing.
