Case C-19/11

Markus Geltl

v

Daimler AG

(Reference for a preliminary ruling from the Bundesgerichtshof)

(Directives 2003/6/EC and 2003/124/EC — Inside information — Notion of ‘precise information’ — Intermediate steps in a protracted process — Reference to circumstances or an event which may reasonably be expected to come into existence or occur — Interpretation of the wording ‘may reasonably be expected’ — Public disclosure of information relating to change of a manager of a company)

Summary of the Judgment

1.        Approximation of laws — Insider dealing and market manipulation (market abuse) — Prohibition — Inside information — Precise information — Definition — Reasonable probability of the existence of the set of circumstances or the occurrence of the event covered by the information — Possibility of drawing a conclusion from that information as to their possible effect — Cumulative conditions

(Commission Directive 2003/124, Art. 1(1))

2.        Approximation of laws — Insider dealing and market manipulation (market abuse)  — Prohibition — Inside information — Precise information — Definition — Intermediate steps in a protracted process, connected with the bringing about of a circumstance or an event — Included

(European Parliament and Council Directive 2003/6, Art. 1(1); Commission Directive 2003/124, Art. 1(1))

3.        European Union law — Interpretation — Texts in several languages — Uniform interpretation — Consideration of different language versions — Directive 2003/124

(Commission Directive 2003/124, Art. 1(1))

4.        Approximation of laws — Insider dealing and market manipulation (market abuse)  — Prohibition — Inside information — Reasonable probability of the existence of a set of circumstances or the occurrence of an event — Definition — Overall assessment of the existing factors — Criteria — Taking into consideration of the magnitude of the possible effect of that set of circumstances or that event on the prices of financial instruments — Not included

(Commission Directive 2003/124, Art. 1(1))

1.        See the text of the judgment.

(see paras 29, 39)

2.        Point 1 of Article 1 of Directive 2003/6 on insider dealing and market manipulation (market abuse) and Article 1(1) of Directive 2003/124 implementing Directive 2003/6 as regards the definition and public disclosure of inside information and the definition of market manipulation must be interpreted as meaning that, in the case of a protracted process intended to bring about a particular circumstance or to generate a particular event, not only may that future circumstance or future event be regarded as precise information within the meaning of those provisions, but also the intermediate steps of that process which are connected with bringing about that future circumstance or event.

This interpretation does not hold true only for those steps which have already come into existence or have already occurred, but also concerns, under Article 1(1) of Directive 2003/124, steps which may reasonably be expected to come into existence or occur.

(see paras 38, 40, operative part 1)

3.        See the text of the judgment.

(see para. 43)

4.        Article 1(1) of Directive 2003/124 implementing Directive 2003/6 as regards the definition and public disclosure of inside information and the definition of market manipulation must be interpreted as meaning that the notion of ‘a set of circumstances which exists or may reasonably be expected to come into existence or an event which has occurred or may reasonably be expected to do so’ refers to future circumstances or events from which it appears, on the basis of an overall assessment of the factors existing at the relevant time, that there is a realistic prospect that they will come into existence or occur. That article, in using the terms ‘may reasonably be expected’, cannot therefore be interpreted as requiring that proof be made out of a high probability of the circumstances or events in question coming into existence or occurring. Similarly, precise information is not to be considered as including information concerning circumstances and events the occurrence of which is implausible.

However, that notion should not be interpreted as meaning that the magnitude of the effect of that set of circumstances or that event on the prices of the financial instruments concerned must be taken into consideration. An interpretation to the effect that, the greater the magnitude of the possible effect of a future event on the prices of the financial instruments concerned may be, the lower the degree of probability required in order for the information in question to be held to be precise, would imply that the two elements required for information to be inside information, set out in Article 1(1) and (2) of Directive 2003/124 respectively, namely that the information must be precise and must be likely to have a significant effect on the prices of the financial instruments concerned, are co-dependent. Those criteria are minimum conditions which must each be satisfied in order for information to be held to be ‘inside’ information within the meaning of point 1 of Article 1 of Directive 2003/6.

(see paras 46, 48, 52, 53, 56, operative part 2)