Provisional text
OPINION OF ADVOCATE GENERAL
M. CAMPOS SÁNCHEZ-BORDONA
delivered on 11 September 2025 (1)
Case C‑376/24
MT
v
Comité de direction de l’Autorité des Services et des Marchés Financiers (FSMA)
(Request for a preliminary ruling from the Cour d’appel de Bruxelles (Court of Appeal, Brussels, Belgium))
( Preliminary ruling proceedings – Financial Services – Regulation (EU) No 596/2014 – Disclosure of inside information and market abuse – Unlawfulness of the disclosure of inside information – Exceptions – Article 10 – Disclosure of inside information in the normal course of the exercise of a person’s profession or duties – Article 21 – Publication of inside information in the course of journalistic activities – Freedom of the press and freedom of expression – Disclosure by a political leader of inside information concerning the privatisation of a public company )
1. The proceedings which gave rise to this reference for a preliminary ruling are to decide on the validity of a penalty imposed on a political leader who, in interviews with the media, divulged information which could allegedly be classified as inside information, within the meaning of Directive 2003/6/EC (2) and Regulation (EU) No 596/2014. (3)
2. The information at issue concerned the imminent privatisation of an important Belgian public company. The person who divulged the information stated that he had acted in order to trigger a debate on that question of public interest and in the exercise of his duties as a political leader.
3. At the heart of the reference for a preliminary ruling lies a conflict between, on the one hand, the fundamental right to freedom of expression and information (of a political leader, in this case) and, on the other hand, the interest in protecting the integrity of the financial markets, given concrete expression in the prohibition on the disclosure of inside information.
I. Legal framework
A. European Union law
1. Directive 2003/6
4. In accordance with recital 44:
‘This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union [“the Charter”] and in particular by Article 11 thereof and Article 10 of the European Convention on Human Rights [“the ECHR”]. In this regard, this Directive does not in any way prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media’.
5. Article 2 provides:
‘1. Member States shall prohibit any person referred to in the second subparagraph who possesses inside information from using that information by acquiring or disposing of, or by trying to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates.
The first subparagraph shall apply to any person who possesses that information:
…
(c) by virtue of his having access to the information through the exercise of his employment, profession or duties; or
…’
6. Article 3 provides:
‘Member States shall prohibit any person subject to the prohibition laid down in Article 2 from:
(a) disclosing inside information to any other person unless such disclosure is made in the normal course of the exercise of his employment, profession or duties;
(b) recommending or inducing another person, on the basis of inside information, to acquire or dispose of financial instruments to which that information relates.’
2. Regulation No 596/2014
7. Recital 77 states:
‘This Regulation respects the fundamental rights and observes the principles recognised in the Charter … Accordingly, this Regulation should be interpreted and applied in accordance with those rights and principles. In particular, when this Regulation refers to rules governing the freedom of the press and the freedom of expression in other media and the rules or codes governing the journalist profession, account should be taken of those freedoms as guaranteed in the Union and in the Member States and as recognised pursuant to Article 11 of the Charter and to other relevant provisions.’
8. Article 7 (‘Inside information’) essentially reproduces the definitions set out in Directives 2003/6 and 2003/124/EC. (4)
9. Article 8 (‘Insider dealing’) reads:
‘1. For the purposes of this Regulation, insider dealing arises where a person possesses inside information and uses that information by acquiring or disposing of, for its own account or for the account of a third party, directly or indirectly, financial instruments to which that information relates. The use of inside information by cancelling or amending an order concerning a financial instrument to which the information relates where the order was placed before the person concerned possessed the inside information, shall also be considered to be insider dealing. …
…
4. This Article applies to any person who possesses inside information as a result of:
…
(c) having access to the information through the exercise of an employment, profession or duties; or
…
This Article also applies to any person who possesses inside information under circumstances other than those referred to in the first subparagraph where that person knows or ought to know that it is inside information.
…’
10. Article 10 (‘Unlawful disclosure of inside information’) provides:
‘1. For the purposes of this Regulation, unlawful disclosure of inside information arises where a person possesses inside information and discloses that information to any other person, except where the disclosure is made in the normal exercise of an employment, a profession or duties.
This paragraph applies to any natural or legal person in the situations or circumstances referred to in Article 8(4).
…’
11. Article 21 (‘Disclosure or dissemination of information in the media’) provides:
‘For the purposes of Article 10 …, where information is disclosed or disseminated and where recommendations are produced or disseminated for the purpose of [(5)] journalism or other form of expression in the media, such disclosure or dissemination of information shall be assessed taking into account the rules governing the freedom of the press and freedom of expression in other media and the rules or codes governing the journalist profession, unless:
(a) the persons concerned, or persons closely associated with them, derive, directly or indirectly, an advantage or profits from the disclosure or the dissemination of the information in question; or
(b) the disclosure or the dissemination is made with the intention of misleading the market as to the supply of, demand for, or price of financial instruments.’
B. National law. Loi du 2 août 2002 relative à la surveillance du secteur financier et aux services financiers (6)
12. Article 2 defines the concept of ‘inside information’ in the same terms as Directives 2003/6 and 2003/124 and, therefore, as Regulation No 596/2014.
13. In accordance with Article 25:
1. No one
(1) who possesses information which he or she knows, or ought to have known, constitutes inside information shall:
(a) acquire or dispose of, or attempt to acquire or dispose of, for his or her own account or for the account of a third party, directly or indirectly, financial instruments to which that information relates;
(b) disclose such information to another person, unless the disclosure is made in the normal exercise of his or her employment, profession or duties;
…
(4) shall disseminate information or rumours through the media, the internet or other means, which provide or are likely to give false or misleading indications about financial instruments, where [that person] knew or ought to have known that the information was false or misleading.
In the case of journalists who act in the course of their profession, that dissemination of information must be assessed by taking into account the rules applicable to their profession, unless those persons derive, directly or indirectly, an advantage or profit from the dissemination of such information.’
II. Facts, dispute and questions referred for a preliminary ruling
14. In 2016, Bpost, a public limited liability company in which the State held more than 50% of the shares, was the main operator in the Belgian postal sector and its shares were listed on the Brussels Stock Exchange (Belgium) (Euronext).
15. MT was a socialist political leader. He was the minister for public enterprise in the federal government from January 2013 to October 2014. After the 2014 parliamentary elections, the Socialist Party went into opposition and, in 2016, MT held leadership posts in that party and in the Union nationale des mutualités socialistes – Solidaris.
16. In 2015, the new Belgian government expressed its willingness to reduce State involvement in public undertakings to below 50%, and there was a debate about this in the Belgian parliament. The adoption of a new law on public undertakings in December 2015 (7) was criticised by a union leader in the following terms, as reported by a Belgian newspaper: ‘the adoption in the Chamber yesterday, Thursday, of the bill allowing the privatisation, without the need for a blocking minority, of public companies listed on the Stock Exchange, namely, Bpost and Proximus, signifies the end of public companies’. (8)
17. Bpost’s articles of association were amended at the ordinary and extraordinary general meetings of 11 May 2016 in order to enable the privatisation of Bpost. (9) On 12 May 2016, in comments on the outcome of those shareholders’ meetings, a Belgian newspaper referred to the ‘privatisation of Bpost’. (10)
18. On 27 May 2016, replying to a question asked during the radio programme Matin Première on RTBF, MT stated that Bpost was about to lose its public status and stated that ‘the State will sell some of its shares … it is really a matter of hours’. He added that it would lose its status as a public company as part of a merger transaction with another European postal operator, as negotiations were underway to sell 10% of Bpost shares to the Netherlands postal operator PostNL.
19. MT confirmed and supplemented that information on the same day to a journalist from the website www.lavenir.net and in an interview with the newspaper Le Soir.
20. On 27 May 2016, Bpost asked the Autorité belge des services et des marchés financiers (the FSMA) (Belgian Financial Services and Markets Authority) to suspend the trading of its shares on the stock market. The discussions about a merger between Bpost and PostNL stalled and the merger did not take place. (11)
21. On 28 July 2016, the FSMA opened a file on MT’s statements; MT was invited to submit observations, as was SL, general secretary of the postal sector of the Centrale Générale des Services Publics (CGSP). (12)
22. According to the order for reference, (13) the FSMA complained that MT had disclosed, on the morning of 27 May 2016:
‘(a) the existence of an imminent project to privatise Bpost to [a] radio journalist during the “Matin Première” programme broadcast live on RTBF and thus to all listeners of that programme; and
(b) that the State was preparing to sell off approximately 10% of Bpost as part of a merger with another European operator to a journalist from the website www.lavenir.net and therefore to all readers of the article which reproduced those comments.’
23. After a number of preliminary decisions which MT contested unsuccessfully, the Sanctions Committee of the FSMA ultimately decided on 11 May 2023:
‘…
2) to declare that MT has infringed Article 25(1)(b) of the Law of 2 August 2022, by disclosing information that he knew or should have known was inside information outside the exercise of his employment, profession or duties;
3) in accordance with Article 72(3) of the Law of 2 August 2002, to impose a fine on MT in the amount of EUR 12 500 …’
24. MT appealed against the decision of 11 May 2023 to the Cour d’appel de Bruxelles, section Cour des marchés (Court of Appeal, Markets Division, Brussels). The FSMA contested that appeal.
25. In MT’s submission:
– He did not infringe Article 25 of the Law of 2 August 2002 because the disclosure of inside information relates to disclosure to ‘another person’, unless it is done in the ‘normal exercise of an employment, a profession or duties’. In his case, he disclosed the information generally and indiscriminately to the public and, a fortiori, the information disclosed in that way was not intended to mislead investors.
– The prohibition on the disclosure of inside information does not apply to persons acting in the normal exercise of their duties, as was the case here.
– Even if it were admitted that he disclosed inside information, the exception to the prohibition on the disclosure of such information (Article 21 of Regulation No 596/2014) would be applicable to him in order to guarantee freedom of expression. The disclosure or dissemination of information ‘in the media’ should be interpreted as meaning that it is not limited to the publication of information by journalists.
– His public statements were made in the course of the exercise of his duties as a former minister for public enterprise and a member of the national council of the Socialist Party. He did not benefit from those statements – quite the contrary, in fact – and he had no intention of misleading the market. Moreover, those statements were necessary for the accomplishment of his political duties and tasks and constitute the exercise of his freedom of expression, which is protected under Article 11 of the Charter and Article 10 ECHR.
26. The FSMA submits that:
– Article 21 of Regulation No 596/2014 lays down an exception to the prohibition on the dissemination of inside information which applies exclusively to journalists or, at most, to disclosures made for the purposes of journalism, and, therefore, it concerns only those who, although not journalists by profession, are able to show that they perform an equivalent job, profession or duties.
– That exception cannot be applied to speeches or statements made by persons who claim to be political figures and who act for ‘political purposes’.
– The disclosure of the transaction Bpost was preparing to carry out was neither necessary nor proportionate for the purposes of ‘political’ opposition to a government ‘policy’ of privatising public companies. MT could have opposed the privatisation of a Belgian public company in ways other than the disclosure of inside information.
– The exception laid down in Article 21 of Regulation No 596/2014 requires the existence of a close connection between the disclosure of inside information and the performance by the person concerned of his or her employment, profession or duties.
27. In those circumstances, the Cour d’appel de Bruxelles, section Cour des marchés (Court of Appeal, Markets Division, Brussels) has referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 3 of Directive 2003/6, read in the light of Articles 11 and 52 of [the Charter], Article 10 ECHR and the principle of equality, in so far as it concerns the prohibition on “disclosing inside information to any other person unless such disclosure is made in the normal course of the exercise of his employment, profession or duties”, be interpreted as prohibiting the disclosure of inside information in the media (radio and websites of printed media outlets) by a person who has the status of politician, former minister and member of an opposition party, who intervenes in the media in that capacity, and who seeks, by that disclosure, to incite public debate on a question of general interest in such a way as to criticise a privatisation project, even though his or her duties do not normally involve such a disclosure of inside information in the media?
(2) Must the scope of Article 21 of [Regulation No 596/2014], read in the light of the same principles as those set out in the preceding question, be interpreted as being limited to disclosure or dissemination of inside information by journalists, or does it also apply to the disclosure or dissemination of inside information in the media by a person, such as a politician, former minister and member of an opposition party, who seeks, by that disclosure, to incite public debate on a question of general interest in such a way as to criticise a privatisation project?’
III. Procedure before the Court of Justice
28. The request for a preliminary ruling was received at the Registry of the Court of Justice on 28 May 2024.
29. Written observations were lodged by MT, the FSMA and the European Commission, who all participated in the hearing which was held on 22 May 2025.
IV. Assessment
30. The two questions referred for a preliminary ruling can be answered together. First of all, it is necessary to determine which provision of EU law is applicable ratione temporis to the dispute.
A. The applicable legislation
31. The referring court cites Directive 2003/6 and Regulation No 596/2014 interchangeably.
32. Articles 10 and 21 of Regulation No 596/2014 have been applicable since 3 July 2016. (14) When the alleged disclosure of inside information occurred (27 May 2016), Directive 2003/6 was, however, still in force; Article 3 of that directive is, therefore, the decisive provision for adjudicating on the dispute.
33. The referring court appears to suggest that it would be possible to apply Articles 10 and 21 of Regulation No 596/2014 because they contain ‘more lenient’ provisions than its predecessor. (15)
34. The retroactive application of the later, more favourable law would be feasible if Belgian law provided for this in relation to unlawful conduct which is punishable under administrative law on penalties. That is a matter on which the national court must rule.
35. If domestic law does provide for that approach, Articles 10 and 21 of Regulation No 596/2014 would apply retroactively to events which occurred before those provisions entered into force, provided that their content was more favourable than that of Article 3 of Directive 2003/6.
36. Article 3(a) of Directive 2003/6 has similar wording to that of the first subparagraph of Article 10(1) of Regulation No 596/2014. Both prohibit the unlawful disclosure of inside information to third parties, except where the disclosure is made in the normal exercise of a person’s employment, profession or duties. Accordingly, in that respect, the two provisions contain the same exception. (16)
37. Article 21 of Regulation No 596/2014 included a requirement which strengthens the protection of the disclosure or dissemination of information in the media. For the purpose of assessing whether a person has carried out the conduct punishable under Article 10 of that regulation (unlawful disclosure of inside information), account must be taken of the rules governing the freedom of the press and freedom of expression.
38. The Court has held that Article 21 of Regulation No 596/2014 and Article 3 of Directive 2003/6 do not have ‘the same meaning and scope as regards the disclosure of inside information by a journalist.’ (17) The Court has further held that, depending on the interpretation which is given to Article 21 of Regulation No 596/2014, it will be possible to determine whether its ‘provisions … are more lenient … than those of Directive 2003/6’. (18)
39. In my view, the rules laid down in relation to the disclosure of inside information in the course of journalistic activities (Article 21 of Regulation No 596/2014) are more favourable than those applicable, in general, to other professionals in the course of their employment, profession or duties. (19)
40. I shall focus, therefore, on examining whether, when a political leader makes statements which are liable to reveal inside information to the public within the meaning of Article 10 of Regulation No 596/2014, that person may rely on the provisions of Article 21 of that regulation.
B. Replies to the questions referred for a preliminary ruling
41. My assessment will take the following form: (a) firstly, I shall examine the interpretation of Article 21 of Regulation No 596/2014, on its own and in relation to the facts of this case; and (b) secondly, I shall consider the potential effects of Article 10(1) of Regulation No 596/2014, including the requirements flowing from the protection of the freedoms of expression and information. (20)
1. Interpretation of Article 21 of Regulation No 596/2014
(a) General considerations
42. Article 21 of Regulation No 596/2014 lays down a special rule for assessing the existence of ‘unlawful disclosure of inside information’, where information is disclosed or disseminated for the purpose of journalism or other form of expression in the media.
43. In those circumstances, the disclosure or dissemination of information is to be assessed:
– ‘taking into account the rules governing the freedom of the press and freedom of expression in other media and the rules or codes governing the journalist profession’;
– as not complying with those rules on freedom of the press and freedom of expression, if the persons concerned (or persons closely associated with them) derive, directly or indirectly, an advantage or profit from the disclosure or the dissemination of the information in question, or the disclosure or the dissemination is made with the intention of misleading the market as to the supply of, demand for, or price of financial instruments.
44. The Court has already interpreted Articles 10 and 21 of Regulation No 596/2014 in relation to the disclosure of information for the purposes of journalism. (21) The Court held, essentially, that the exception laid down in Article 21 of Regulation No 596/2014 covers the dissemination of inside information in the course of journalistic activities, construed in the broad sense. (22)
45. Unless I am mistaken, there has not yet been a judgment on the disclosure of inside information for the purpose of ‘… other form of expression in the media’, within the meaning of Article 21 of Regulation No 596/2014. Since the provision does not refer to national law, it needs to be interpreted uniformly within the framework of EU law, taking account ‘not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part’. (23)
46. The parties which lodged observations have adopted opposing positions on the expression to be interpreted:
– MT and the Commission propose a broad interpretation, such that the expression applies not only to journalists but also to the disclosure of inside information by politicians or experts acting in the course of journalistic activities carried out in the media.
– Conversely, the FMSA submits that the expression is limited and applies solely to journalists and activities which are necessary and proportionate for the performance of their work. In the FMSA’s opinion, only journalists are able to be independent and comply with the rules and codes governing the profession of journalist.
47. I believe that the interpretation proposed by the Commission and MT is the most appropriate, for the reasons which I shall set out below.
48. From a literal point of view, the reference to the purpose of ‘other form of expression in the media’, as an alternative to ‘the purpose of journalism’, relates to the dissemination of information which: (a) takes place in the media, construed in the broad sense; (b) is not confined to dissemination by journalists; and (c) may cover purposes of expression that are not directly journalistic, that is, of ‘[an]other form’.
49. The provision is worded in such a way that it encompasses the dissemination of information which, although not disclosed by journalists, is disclosed in the media by persons having different attributes (for example, politicians, experts or commentators).
50. To my mind, a political leader who makes statements which contain information of interest to the general public via the radio, the press or digital media, and which are gathered and disseminated by any of those media, falls within the scope of that provision.
51. Admittedly, journalistic activities are, in principle, carried out by journalists themselves. However, Article 21 of Regulation No 596/2014 is not intended to limit the protection it affords to journalists alone and instead extends that protection to those who disclose certain information in the media.
52. It is specifically the ‘disclosure or dissemination of information in the media’ which is protected, in objective and subjective terms. For those purposes, it makes no difference whether the information is disclosed or disseminated directly by journalists or by other persons who use the media to do so.
53. In my view, the reference to ‘the rules or codes governing the journalist profession’ does not mean that the application of Article 21 of Regulation No 596/2014 should be confined to journalists. While it is true that the provision refers to the rules and codes governing the journalist profession, it also refers to the rules ‘governing the freedom of the press and freedom of expression in other media’. Those other rules are not solely the rules of professional ethics and conduct which apply to journalists per se but also those which govern generally the activities of any media outlet.
54. A systematic and purposive interpretation of the expression at issue leads me to the same conclusion.
55. The objective of Regulation No 596/2014 is to protect the integrity of the EU financial markets and to enhance investor confidence. That confidence depends on, inter alia, investors being placed on an equal footing and protected against the improper use of insider information. (24)
56. At first sight, that objective would be better safeguarded if the protection (under Article 21 of Regulation No 596/2014) against penalties for the disclosure of inside information were limited to journalists and not available to non-journalists. That would remove the possibility that non-journalists, such as political leaders or experts, could benefit from the privilege laid down by Article 21 of Regulation No 596/2014.
57. However, that approach ignores the fact that the objectives of protecting the integrity of the EU financial markets and investor confidence must be achieved through respect for ‘the freedom of the press and the freedom of expression in other media … as guaranteed in the Union and in the Member States and as recognised pursuant to Article 11 of the Charter …’. (25)
58. The importance of the fundamental freedoms in a democratic society requires that the concepts which use those freedoms as a point of reference must be interpreted broadly. In introducing a specific exception (to the prohibition on the dissemination of inside information) for disclosure for the purpose of journalism or for the purpose of other form of expression in the media, Article 21 of Regulation No 596/2014 links that exception to the freedom of the press and freedom of expression. (26)
59. The Court has interpreted the expression ‘processing of personal data carried out solely for journalistic purposes’, which was contained in Article 9 of Directive 95/46, using very open criteria: (27)
– ‘Journalistic activities’ are those which have as their purpose the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. (28)
– The derogation is not limited to media undertakings but also applies to every person engaged in journalism. (29)
– The fact that a person is not a professional journalist does not appear to be capable of excluding the possibility that the recording of a video and its subsequent publication on a website may come within the scope of the exception relating to journalistic activities. (30)
– The medium which is used to transmit the processed data, whether it be classic in nature, such as paper or radio waves, or electronic, such as the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’. (31)
60. Whilst that case-law was laid down in relation to a provision which limited its application solely to journalistic purposes, there is all the more reason to extend it to cover another provision (such as Article 21 of Regulation No 596/2014) which does not use that adverb and refers, in much broader terms, to the dissemination of information ‘for the purpose of journalism or other form of expression in the media’. (32)
61. From that perspective, the application of Article 21 of Regulation No 596/2014 to political leaders who speak to the media (through interviews, press conferences or similar acts) and, in that context, disclose allegedly inside information of public interest is also supported by the case-law of the ECtHR on Article 10 ECHR.
62. The meaning and scope of Article 10 ECHR, in so far as it corresponds to Article 11 of the Charter, (33) should guide the interpretation of that provision of the Charter, pursuant to Article 52(3) thereof, as a minimum level of protection. (34)
63. The ECtHR has repeatedly recognised the crucial role of the media in facilitating and promoting the public’s right to receive and communicate information and ideas. (35) The ECtHR has also held that the function of creating various ‘platforms for public debate is not limited to the [conventional] press …’. (36)
64. I will apply that case-law below to confirm that an interpretation of Article 21 of Regulation No 596/24 which precludes political leaders from disclosing information of public interest through the media, in circumstances like those of this case, is incompatible with Article 11 of the Charter.
65. Where a political leader discloses information of public interest during an interview on a radio programme or in comments to a newspaper, whether printed or digital, that person is performing either an activity for journalistic purposes (in the sense explained above) or, ultimately, an activity for the purpose of other forms of expression in the media.
(b) Considerations relating to the case
66. MT was seeking to inform the public about the imminent privatisation of the undertaking Bpost (the shares in which were majority-owned by the State) through its partial merger with the undertaking PostNL. In doing so, he was attempting to incite a public debate about the appropriateness of those actions of the Belgian Government.
67. The referring court believes that, as such, that information could be classified as inside information for the purposes of Regulation No 596/2014. In particular, it rejects the arguments put forward by MT to the effect that the privatisation of Bpost was already public information.
68. In the referring court’s view, the amendments to the law on public undertakings (December 2015) and to the articles of association (11 May 2016) made the privatisation of Bpost possible, but ‘that did not mean that there was a concrete plan to implement the privatisation of the undertaking’. (37)
69. As the FSMA stated at the hearing, MT’s comments revealed specific aspects of the privatisation of Bpost, referring to its imminence, its link to another European postal operator and the sale of one tenth of the Belgian State’s shares in that public company. Those details are, in principle, capable of supporting the referring court’s position regarding the inside nature of the information disclosed by MT.
70. Given that the request for a preliminary ruling does not contain any questions about the nature of the information disclosed, the Court must respect the referring court’s assessment in relation to that matter. (38)
71. Therefore, on the assumption that the information concerned was inside information, its disclosure or dissemination in the media would be lawful if the (positive and negative) conditions stipulated in Article 21 of Regulation No 596/2014 were met.
72. I have already considered the positive conditions above: they are satisfied if the person who divulges or disseminates information does so for the purpose of journalism or other form of expression in the media. That is what happened in this case.
73. As concerns the negative conditions, the application of Article 21 of Regulation No 596/2014 requires (a) that the persons concerned, or persons closely associated with them, do not derive, directly or indirectly, an advantage or profit from the disclosure or the dissemination of the information in question; or (b) that the disclosure or the dissemination is not made with the intention of creating confusion on, or of misleading the market as to, the supply of, demand for, or price of financial instruments.
74. The referring court explicitly states that those negative conditions were not met in this case: ‘it is not disputed that [MT] did not derive any advantage or benefit from the disclosure he is alleged to have made, nor did he make that disclosure with the intention of misleading the market’. (39)
75. The referring court also appears to have decided (this time implicitly) that the disclosure of inside information led to an indirect advantage or benefit for MT, his political party and the mutual organisation to which it belonged, which consisted in the abandonment of Bpost’s privatisation.
76. I believe that the ‘advantage or profits’ to which Article 21 of Regulation No 596/2014 refers are fundamentally financial in nature, that is, they affect the financial position of the person who disseminates the information or of persons associated with that person. Accordingly, any political gain which MT may have obtained in disseminating the information cannot be categorised as a profit within the meaning of Article 21 of Regulation No 596/2014. A contrary interpretation would limit considerably the scope of that exception, because almost any disclosure of information is likely to have some kind of indirect – not necessarily financial – benefit for whoever discloses it.
77. The referring court echoes the arguments put forward by MT to ask:
– whether ‘Article 21 of Regulation No 596/2014 could apply to MT, as a more favourable legal provision and to the extent that [MT] claims to have acted within the framework of his duties as a former minister and opposition party politician, and with the objective of drawing public attention to the proposed privatisation of a leading public undertaking’, or
– whether, ‘more generally, … he could take advantage of the exception relating to disclosure made in the course of his duties. Either way, it is necessary to take into account the fact that the alleged disclosure concerned the disclosure of information in the media, which he says he made for the purpose of inciting political debate’. (40)
78. The reply to that twofold question must be in the affirmative if the disclosure of information fulfilled the conditions which Article 21 of Regulation No 596/2014 lays down.
79. When he disclosed information concerning future action by the government as the majority shareholder of Bpost, MT was acting in his capacity as leader of an opposition political party, (41) opposed to the privatisation of that public company. He did not reveal merely commercial information adopted by the representative bodies of a private company but rather an imminent political decision of the government, and he did so with the intention of triggering, while there was still a solution, a ‘political debate’ about it.
80. That factor transfers the dispute to the political field, where positions adopted by different parties on questions of importance to public life must not be restricted, except for overriding reasons.
2. The impact of Article 10 of Regulation No 596/2014
81. Article 21 of Regulation No 596/2014 is a special rule (lex specialis) which treats more favourably one of the situations covered by the general exception laid down in Article 10.
82. Article 10 of Regulation No 596/2014 defines the unlawful disclosure of inside information (‘where a person possesses inside information and discloses that information to any other person’) and provides for a very broad exception: ‘except where the disclosure is made in the normal exercise of an employment, a profession or duties’. (42)
83. That exception becomes more nuanced in Article 21 of Regulation No 596/2014 with respect to the disclosure or dissemination of information for the purpose of journalism or other form of expression in the media. Article 21 singles out, because of its particular importance, an activity (journalism, in the broad sense) which must benefit from the exception in order to protect the freedom of the press and freedom of expression.
84. The considerations which the Court set out in the judgment in Autorité des marchés financiers concerning the relationship between Articles 10 and 21 of Regulation No 596/2014 are supplemented in paragraphs 78 and 81 of the judgment, to the effect that the general requirements of necessity and proportionality (of the disclosure of inside information) (43) must be observed and have to be assessed in the light of Article 11 of the Charter. (44)
85. I shall approach the examination of both requirements from that perspective.
(a) Necessity
86. The need to disseminate inside information, where the person disclosing that information is a political leader who is participating in a journalistic activity, is dependent on whether that dissemination is the most appropriate method of informing public opinion about an important piece of information concerning political life.
87. Therefore, necessity is not assessed on an abstract basis but rather on the basis of the particular circumstances of each case. In the judgment in Autorité des marchés financiers, the Court referred to the need to verify the information of which the journalist had become aware. (45)
88. The information disclosed by MT could have affected the stock market listing of the public company Bpost, although it appears that its actual effects were insignificant. The alternative to announcing that that company was going to be privatised immediately was to wait until Bpost notified the financial authorities and the public of this.
89. However, MT was a political leader who was a member of an opposition party, and his responsibilities as such, as he understood them, prompted him to disclose in advance the imminent privatisation of Bpost, which was to be carried out as a result of a governmental decision. His intention in doing so was to trigger a public debate on the subject and, based on his political beliefs, to prevent that privatisation.
90. Did the normal exercise of his political responsibilities make the disclosure of the inside information which MT had in relation to Bpost necessary?
91. The FSMA argues that the disclosure of the inside information by MT was not necessary because the controversy regarding the privatisation of public companies had already arisen in Belgium in the course of the debates preceding the adoption of the Law of 16 December 2015 on the reform of public companies. The FMSA adds that MT could have ‘revived’ that debate once more in 2016 without having any reason to disseminate in the media information as specific as that which he disclosed.
92. MT puts forward the opposing view and submits that the best way to attain the objective of triggering a public debate about the privatisation and (partial) merger of Bpost with PostNL was to disclose and disseminate the secret negotiations that were underway.
93. It falls to the referring court to make the final decision on the need to disclose the information. Without wishing to take over the referring court’s assessment, I believe that that disclosure may be classified as necessary if regard is had to the aim which MT was seeking to attain when he disclosed the imminent privatisation of Bpost.
94. The privatisation of a public undertaking as important as Bpost, the main postal operator in Belgium, together with a reduction of the State’s shareholding, was a politically sensitive matter of concern to the public interest. The normal performance of a political leader’s duties involves, inter alia, triggering debates about issues of that kind.
95. It is also an inherent part of the responsibilities of a politician in opposition to reveal imminent government decisions of general interest which are hidden from public opinion with a view to presenting those decisions later as a fait accompli. If the most effective method of preventing such a decision from becoming a fait accompli was to disclose the information via the media, that disclosure may be considered to be necessary.
96. In the light of the situation which arose, having another general discussion about whether it was appropriate to privatise Bpost would not have had the same effect as revealing, as MT did, that the government was intending to approve that privatisation imminently.
(b) Proportionality
97. In the examination of proportionality, I shall use the same approach as was used in the judgment in Autorité des marchés financiers.
98. In order to determine whether the dissemination of the alleged inside information meets the proportionality test, it is necessary ‘to examine whether the restriction on the freedom of the press resulting from the prohibition of such a disclosure would be excessive in relation to the harm which such a disclosure risks causing to the integrity of the financial markets.’ (46)
99. As regards the harm (to the integrity of the financial markets), the referring court makes an assertion which, at the very least, casts doubt on whether such harm actually occurred. Albeit with some reservations, the referring court raises the possibility that, in fact, it was not the integrity of the markets which was jeopardised when the information was disclosed but rather Bpost’s interest in keeping the transaction it was planning quiet for the time-being. (47)
100. If the referring court finds that there is a possibility of harm to the integrity of the markets, it will have to examine again the extent to which the prohibition on the dissemination of the information entailed an excessive limitation of the freedom of the press, in relation to such harm. As I observed above, I do not believe that, in the light of the imminent privatisation of Bpost, a political leader can be required to remain silent if he considers that transaction to be even more harmful than its disclosure to the public.
101. In the event that the referring court decides, at the end of its examination concerning the necessity and proportionality tests, that grounds exist for the prohibition on the disclosure of inside information, it will have to determine whether the conduct at issue was justified by the exercise of the freedom of expression.
(c) Pre-eminence of the freedom of expression
102. The imposition of a fine for the disclosure of information in the media constitutes a restriction of the freedoms of expression and information. MT’s right to exercise those freedoms in the context of ‘political journalism’ was limited.
103. It is therefore necessary to determine whether, in accordance with Article 11 of the Charter and Article 10 ECHR, that limitation was justified. The justification may be based, in principle, on Article 10(2) ECHR and on Article 52(1) of the Charter.
104. I do not believe that it is necessary to reiterate that the freedom of expression constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which the European Union is founded, in accordance with Article 2 TEU, (48) to which the Charter (Article 11) attributes the status of fundamental right. As I have already pointed out, that article of the Charter must be interpreted taking into account Article 10 ECHR, which is very similar, and the case-law of the ECtHR thereon. (49)
105. The ECtHR has been particularly exacting with regard to protection of that right: ‘Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10 [ECHR], it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.’ (50)
106. As the Court has recalled when referring to various judgments of the ECtHR, the latter ‘emphasises the fundamental role played by the press in a democratic society, with the result that the guarantees to be given to it are of particular importance. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Were it otherwise, the press would be unable to play its vital role of “public watchdog”. Thus, considerable weight must be attached to the interest of a democratic society in ensuring and maintaining a free press in the determination, as is required under Article 10(2) ECHR, of whether the interference in question is proportionate to the legitimate aim pursued’. (51)
107. It is true that the exercise of that right may be made subject to restrictions, (52) but the permitted interferences must pass the triple filter of being provided for by law, aimed at the protection of one of the legitimate interests referred to in Article 10(2) ECHR and be necessary in a democratic society.
108. As far as EU law is concerned, the freedom of expression and information enshrined in Article 11 of the Charter may be limited pursuant to Article 52(1) thereof. The Charter ‘… allows limitations to be placed on the exercise of those rights and freedoms, provided that those limitations are provided for by law, that they respect the essence of those rights and freedoms and that, in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.’ (53)
109. In the present case, the limitation imposed on MT’s freedom of expression: (a) is provided for by law, that is, by Regulation No 596/2014 and the Law of 2 August 2002; (b) respects the essence of the right, as the prohibition on the disclosure of inside information is not expressed in absolute terms; (54) and (c) pursues, in principle, the general interest objective of protecting the integrity of the financial markets.
110. The uncertainties arise when it comes to reconciling that limitation with the protection of the fundamental right to freedom of expression, which includes the right of a political leader to disclose to the public information on matters of public interest.
111. Any restrictions of a political leader’s freedom of expression must be assessed in accordance with particularly stringent criteria, according to the case-law of the ECtHR. Article 10(2) ECHR ‘allows hardly any limitations of the freedom of expression in the course of political debate or matters of public interest’. (55)
112. That being so, I believe that precedence must be given to the freedom of expression of the leader of an opposition political party who, in disclosing that the government is going to privatise an important public undertaking, the main postal operator in Belgium, seeks to trigger a public debate on that matter. (56)
V. Conclusion
113. In the light of the foregoing considerations, I propose that the following reply be given to the Cour d’appel de Bruxelles, section Cour des marchés (Court of Appeal, Markets Division, Brussels, Belgium):
Articles 10 and 21 of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, in conjunction with Article 11 of the Charter of Fundamental Rights of the European Union,
must be interpreted as meaning that:
(1) Article 21 of Regulation No 596/2014 applies to the disclosure of inside information by a political leader who is a former minister and a member of an opposition party, who speaks to the media in that capacity and who, in doing so, seeks to trigger a public debate about a question of public interest, for the purpose of criticising the imminent privatisation of the main national postal operator of which the State was, until that time, the majority shareholder.
(2) The disclosure of that information through the media may be regarded as having been made in the normal exercise of a political leader’s duties, in accordance with Article 10 of Regulation No 596/2014. It is for the referring court to determine whether that disclosure is necessary and proportionate for the purpose of the attainment of its objectives and, in any case, whether the freedoms of expression and information, as guaranteed by Article 11 of the Charter, take precedence.