The Court of Justice of the European Union (the “ECJ”) recently delivered an important judgment on the interpretation of inside information under Article 7(1)(a) of the Market Abuse Regulation (“MAR”): Brännelius. The judgment addresses what should be understood as non-public information—one of the requirements for information to constitute inside information under the MAR. According to the ECJ, inside information loses its non-public character within the meaning of Article 7(1)(a) MAR only when it is made public in accordance with the issuer’s disclosure duty under Article 17(1) MAR and Article 2(1) of Implementing Regulation 2016/1055. In other words, only after the issuer has published the information as inside information does it cease to be non-public—even if it has become public through other means. What makes the Brännelius judgment remarkable is that it must, in our view, be understood differently from what the literal wording of its key consideration might suggest. We explain this below by setting out what we consider to be the correct interpretation, contrasting it with an interpretation based on that literal wording.
The facts are as follows (see paras 18-23 of the judgment). In 2018, Umeå kommunföretag AB (“the municipal undertaking”) launched a call for tenders for the purchase of electric buses and charging stations. Two companies submitted bids, one of which was Hybricon Bus Systems AB (“Hybricon”), a public limited company governed by Swedish law. Three other companies had expressed interest in the contract but were not admitted to bid. By a decision of May 14, 2018, the contract was awarded not to Hybricon but to the other tenderer. By email sent at 2:34 pm on the same day, the municipal undertaking informed the five interested companies and 22 other persons who had expressed interest in following the procedure without participating. That email was received at Hybricon by an operating officer with primary responsibility for contacts with the municipal undertaking regarding the public contract in question. The officer promptly recommended to shareholder OP to sell his shares, and OP passed the same recommendation on to fellow shareholder, TK. At 2:37 pm, TK placed an order to sell 73,000 Hybricon shares; at 2:40 pm, OP sold 31,000 Hybricon shares. At 3:22 pm, Hybricon published a press release on its website announcing that it had been unsuccessful in the tendering procedure, after which its share price fell sharply. Thanks to the early sale, OP and TK had limited their losses.
OP and TK were both criminally prosecuted and convicted of insider dealing (see paras 24-28 of the judgment). The case ultimately reached the Högsta domstolen (the Supreme Court of Sweden). The central question was at what point the information contained in the award decision should be regarded as having been made public—and thus as no longer constituting inside information within the meaning of Article 7(1)(a) MAR (see para 29 of the judgment). Given the lack of clarity on what constitutes non-public information under Art. 7(1)(a) MAR, the Högsta domstolen referred the following two questions to the ECJ for a preliminary ruling:
(1) Is it necessary for public disclosure to have taken place in the manner referred to in Article 17 [MAR] in order for information to be considered to have been made public in accordance with Article 7(1)(a) of [MAR]?
(2) 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) [MAR]?
The ECJ answered the first question in para 68 as follows:
Article 7(1)(a) [MAR] must be interpreted as meaning 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, it is necessary for public disclosure to have taken place in the manner and in compliance with the requirements laid down in Article 17 [MAR] and Article 2(1) of Implementing Regulation 2016/1055 (emphasis added).
In view of the affirmative answer to the first question, the ECJ found it unnecessary to answer the second question.
This judgment can, in our view, be interpreted in two different ways (see also J.L. Hansen, E. Lidman & J. Zackrisson, ‘Comment on C-229/24, Brännelius’, Oxford Business Law Blog, 24 April 2026). The first interpretation is that the ECJ has formulated, as a general rule of law, that information can only be considered to have been made public—and thus can no longer be characterized as inside information within the meaning of Article 7(1) MAR—where it has been disclosed in the manner and in compliance with the requirements of Article 17(1) MAR and Article 2(1) of Implementing Regulation 2016/1055 (“Interpretation 1”). In other words, regardless of whether the information had previously become known to a broader public in some other manner, it loses its non-public character under the MAR only once the issuer has published it in accordance with those requirements.
The second interpretation (“Interpretation 2”) is more case-specific. It amounts to the proposition that, in this particular case, the fact that the award decision was sent to the two tenderers (including Hybricon), three other interested parties, and 22 other interested persons does not in itself mean the information has been made public within the meaning of Article 7(1) MAR. Nor does the fact that the information was—at least in theory—accessible to the general public under Swedish legislation on access to government documents mean it had lost its non-public character under Article 7(1) MAR. The information lost that character only when, at 3:22 pm on May 14, 2018, Hybricon disclosed it through a press release in accordance with the MAR requirements. Interpretation 2 thus leaves open the possibility that, in another case with different facts (for example, where the information is known to a much larger group of investors), information may lose its character as inside information before the issuer has published it.
The first argument in favor of Interpretation 1 is the literal wording of para 68. The key paragraph in which the ECJ answers the first question is formulated in general terms and without qualification. A further argument is that the ECJ appears to be diametrically opposed to the Opinion of Advocate General Kokott. She arrives at an answer that moves much more in the direction of Interpretation 2:
Information must be considered to have been “made public”, within the meaning of Article 7(1)(a) [MAR], where it is known by or accessible to a reasonable investor, acting with the necessary diligence, even if no disclosure to a wider public, within the meaning of Article 17 [MAR], has yet taken place’; ‘[t]he concept of information not “made public” referred to in Article 7(1)(a) [MAR] is not defined solely by the absence of public disclosure within the meaning of Article 17 [MAR], but that disclosure may occur in other ways. (see paras 61-62 of the opinion).
In other words, if Interpretation 2 is correct, and the ECJ intended an answer tailored to the specific facts and circumstances of this case, one would have expected it to align with the Advocate General’s Opinion rather than take the opposite approach in its key paragraph.
But there are also arguments in favor of Interpretation 2. The principal argument is that—although para 68 is formulated in very general terms—the judgment also offers points supporting the view that the ECJ intended to say no more than that, in this particular case, the information only lost its character as inside information when Hybricon published it as such. For example, the ECJ holds that “[i]n the present case, the fact that the decision to award the contract at issue in the main proceedings was addressed by the municipal undertaking to Hybricon, to the other undertakings who had participated in the public procurement procedure and to the 22 persons who had expressed their interest in following the procedure without participating therein, does not cause that information to no longer qualify as ‘inside information”’(see para 63 of the judgment; emphasis added). And in para 66, the ECJ holds that “the fact that, under Swedish law, the information contained in the decision to award the contract in question was accessible to the public, inasmuch as any interested person could request the competent authority to grant access thereto and gain knowledge of the content thereof, is not tantamount to that information having been made public within the meaning of Article 7(1)(a) [MAR], and thereby no longer qualifying as ‘inside information’.
A further argument in favor of Interpretation 2 is that it is, from a practical standpoint, the most workable, whereas Interpretation 1 has various undesirable consequences. If Interpretation 1 were correct, this would mean—setting aside the requirement of price sensitivity—that investors in possession of information that has in principle entered the public domain but has not yet been published by the issuer as prescribed by the MAR would be unable to trade. Under Interpretation 1, information loses its character as inside information only once the issuer has published it as such, and investors may trade on that information only from that point onward.
Consider, for example, the situation where the CEO of a listed company makes a slip of the tongue during a general meeting of shareholders or another investor meeting and inadvertently discloses inside information. As a result, the information will quickly lose its non-public character, but under Interpretation 1 it retains its character as inside information until the company publishes it as such. Or consider the situation where an unlisted bidder makes—pursuant to the national bidding rules implementing Directive 2004/25/EC on takeover bids—a public announcement on a proposed public takeover bid, which information qualifies as inside information for the listed target company but has not yet been published by the target pursuant to Article 17(1) MAR. Or consider the (somewhat theoretical) scenario where a number of investors witness the company’s most important production facility burning down and post accounts of this on social media (cf. the example cited under MAR 1.2.14 of the ‘Sourcebook — MAR Market Conduct’published by the UK FCA, February 2026). As long as the company has not yet published the relevant information as inside information, investors would—under Interpretation 1—not be permitted to trade on the basis of what they have witnessed or learned through social media. More generally, Interpretation 1 has the effect of discouraging investors from seeking out price-sensitive (or price-relevant) information. It could therefore be highly detrimental to the process of price discovery and thus to market efficiency.
Furthermore, we note that Interpretation 2 contributes to one of the MAR’s principal objectives: safeguarding and promoting the integrity of markets for financial instruments and ensuring a level playing field among investors. That integrity and level playing field may already be at stake when inside information is known to only a small number of market participants—such as a selected group of parties involved in a tendering procedure—but even more so where this subsequently leads to insider dealing by one or more investors who possess the information while the rest of the investing public remains unaware. At the same time, a regime under which information accessible and available to a large group of investors can lose its character as inside information before the issuer has formally published it does not appear contrary to this objective. Information known to a large group of investors but not yet published by the issuer cannot, as a rule, harm market integrity. Nor is it readily conceivable that the level playing field among investors would be at stake regarding such information.
Weighing the arguments in favor of Interpretation 1 and Interpretation 2 against each other, we arrive at no other conclusion than that Interpretation 2 is the only correct interpretation. Interpretation 1 has undesirable consequences, leads to absurd results, and is, from a practical standpoint, unworkable. Had the ECJ formulated its key paragraph in somewhat less general and categorical terms and instead tailored it to the facts of this case, the uncertainty discussed above would not have arisen. Our overall impression is that the judgment ultimately raises more questions than it answers.
Mathijs Giltjes is an associate at De Brauw Blackstone Westbroek and a PhD candidate at Erasmus University Rotterdam. Arnoud Pijls is a professor of European financial law at Radboud University Nijmegen.