CJEU clarifies limits on disclosing inside information in the media
The Court of Justice of the European Union (CJEU) ruled on 18 June 2026 in Case C-376/24 on an important intersection between market abuse law, political expression and media freedom. The decision concerned the question of the conditions under which a politician may disclose inside information through the media when seeking to criticise an ongoing privatisation project and initiate a public debate.
The CJEU did not give a final ruling on the lawfulness of the sanction imposed in the main proceedings. However, it made clear that such disclosure may, under certain conditions, form part of the normal performance of political duties. What remains decisive is a case-by-case assessment by the national court.
Background to the main proceedings
Statements on a planned sale of state shareholdings
The starting point was Belgian proceedings relating to a planned sale of state shareholdings in a publicly listed postal company. At the time, the Belgian State held more than 50 percent of the shares in that company.
A former minister for public undertakings and influential member of an opposition party commented in the media on 27 May 2016 on a project then underway. According to the findings in the main proceedings, he initially stated in a radio programme of the public broadcaster that the State would sell part of its shares; this was only “a matter of hours”. To a journalist from an online medium and in a further interview, he added that the sale involved a stake of around 10 percent in connection with a rapprochement with a Dutch postal operator. It was also reported that the State’s shareholding could fall to 30 to 40 percent after the transaction.
At that time, according to the findings of the referring court, confidential negotiations were ongoing. Under the intended timetable, a press release on completion of the transaction was to be published on 6 June 2016.
Market reaction and sanction by the supervisory authority
Immediately after the statements, the publicly listed postal company concerned applied to the Belgian financial markets supervisory authority FSMA for suspension of trading in its shares. The negotiations with the Dutch postal operator were subsequently terminated; the planned merger did not take place.
The FSMA opened an investigation on 28 July 2016. After proceedings lasting around seven years, its Sanctions Committee imposed a fine of EUR 12,500 on the politician in May 2023. The authority took the view that he had disclosed inside information outside the exercise of his employment, profession or duties.
The person concerned appealed against that decision before the Appellationshof Brüssel (Brussels Court of Appeal). The proceedings are still pending. The Belgian court must now decide on the lawfulness of the fine by applying the guidance provided by the CJEU.
Reference to the CJEU
Questions from the Brussels Court of Appeal
The Appellationshof Brüssel (Brussels Court of Appeal) requested the CJEU to interpret the EU law requirements concerning the prohibition of unlawful disclosure of inside information. The focus was on Art. 3(a) of Directive 2003/6/EC, Art. 10(1) of the Market Abuse Regulation (MAR) and Art. 21 of the Market Abuse Regulation.
In essence, the Belgian court sought to determine whether a politician, former minister and member of an opposition party may disclose inside information in the media where he intends to criticise a privatisation project and initiate a debate on a matter of general interest. A further question was whether Art. 21 of the Market Abuse Regulation covers only journalistic activities or may also include other forms of expression in the media.
Importance of fundamental rights
In the CJEU’s view, the provisions of EU law had to be interpreted in the light of freedom of expression and information. Of particular relevance were Art. 11 and Art. 52 of the Charter of Fundamental Rights of the European Union and Art. 10 ECHR (European Convention on Human Rights). The principle of equal treatment also had to be taken into account.
In doing so, the CJEU referred to its earlier case law on the Market Abuse Regulation. According to that case law, Art. 21 of the Market Abuse Regulation is not an autonomous exception to the prohibition on disclosure. Rather, the provision specifies how Art. 10 of the Market Abuse Regulation is to be interpreted in the case of publications in the media.
Key statements by the CJEU
Disclosure may form part of the normal performance of duties
The CJEU held that the disclosure of inside information in the media by a politician may, under certain conditions, form part of the normal performance of his duties. This applies in particular where the disclosure serves to criticise an ongoing project to privatise a public undertaking and to encourage a public debate on a matter of general interest.
However, such a classification is not automatic. The CJEU emphasised that the exception to the prohibition on disclosure must, in principle, be interpreted strictly. A close connection between the disclosure and the normal performance of the relevant duties is required.
Necessity and proportionality remain decisive
According to the CJEU, disclosure may be exempted from the prohibition only if it is necessary for the performance of the duties and observes the principle of proportionality. The national court must therefore examine whether the specific communication of the information was necessary in order to enable the political statement or debate pursued.
In particular, the following factors must be taken into account:
- the context of the statement,
- the public interest in the debate,
- whether a public discussion already existed,
- the planned timing of an official publication,
- the scope and accuracy of the information disclosed,
- possible effects on the integrity of the financial markets,
- the risk of insider dealing or loss of confidence in the market.
The CJEU pointed out that freedom of the press and freedom of expression carry particular weight in the case of political statements and matters of general interest. At the same time, the objective of protecting the integrity of the financial markets may justify restrictions.
Art. 21 MAR does not apply only to journalists
The interpretation of Art. 21 of the Market Abuse Regulation is of particular significance. This provision concerns the disclosure or dissemination of information for journalistic purposes or other forms of expression in the media.
The CJEU made clear that Art. 21 MAR is not limited to journalists. The wording “other forms of expression in the media” may also cover statements by other persons. This may include a politician who comments in the media on a matter of general interest.
The condition remains that the further requirements are satisfied. In particular, the person concerned must not derive any direct or indirect advantage from the disclosure, and must not act with the intention of misleading the market.
Concept of advantage within the meaning of Art. 21 MAR
Economic advantage as the relevant point of reference
The CJEU also clarified the concept of advantage or profit within the meaning of Art. 21 MAR. According to the Court, the advantage must, in principle, be economic in nature. It must be capable of having a direct or indirect positive effect on the financial position of the person making the disclosure or of a person closely associated with him.
According to the decision, a purely political benefit is not sufficient. A mere gain in political attention or approval is therefore not automatically an advantage within the meaning of Art. 21 MAR.
Findings of the referring court
According to the CJEU’s account, the referring court had found that the politician had not derived any financial advantage from the disclosure. Furthermore, based on the documents before the CJEU and subject to review by the national court, there was no indication of any intention to mislead the market.
However, precisely these negative conditions are essential. If they are not satisfied, Art. 21 MAR cannot operate in favour of the person making the disclosure.
Classification of the decision
No general exemption for political statements
The decision does not establish a general exemption for political actors from the prohibition on disclosing inside information. A politician is also, in principle, subject to the requirements of market abuse law if he possesses inside information.
The CJEU merely opens up the possibility that disclosure in the media may, in certain constellations, form part of the normal performance of duties. This requires a careful balancing exercise. The politician’s freedom of expression and the public interest in the debate must be weighed against the protection of market integrity and the equal treatment of investors.
Significance for capital market-related political communication
The decision makes clear that capital market-related information may increasingly also become the subject of political disputes. This applies in particular to privatisations, state shareholdings, strategically important companies or transactions that are sensitive from an economic policy perspective.
For practice, it remains significant that inside information may not be disclosed merely because it is politically relevant. Rather, the decisive issue is whether the specific disclosure was necessary and proportionate and whether Art. 21 MAR can apply, taking freedom of the press and freedom of expression into account.
Criticism and open questions
Status as a politician is not decisive on its own
The decision refers several times to disclosure by a politician. Nevertheless, the person’s status alone is unlikely to be decisive. The term “politician” does not describe a uniform set of duties. It covers different offices, functions and roles at various levels.
A function-based assessment therefore appears more convincing. The decisive question is whether the specific statement falls within the framework of a public debate on a matter of general interest and whether the disclosure was necessary and proportionate for that communication.
Necessity still requires interpretation
It remains open how strictly necessity is to be determined in the individual case. In particular, the question may arise whether disclosure is necessary only if it enables a public debate for the first time, or whether it is sufficient that it deepens a debate already underway or brings it forward in time.
The timing of the assessment is also important. An ex post assessment may lead to later developments being given greater weight than was possible at the time of the statement. The CJEU leaves this assessment to the national court, but provides criteria for the balancing exercise.
Distinction between economic and political advantages
The CJEU distinguishes economic advantage from a merely political benefit. This distinction may be difficult to apply. Political influence, public attention or approval within a party may have indirect economic consequences without there being a sufficiently specific financial advantage.
For Art. 21 MAR, therefore, not every remote economic knock-on effect is likely to be sufficient. The decisive issue remains whether a sufficiently specific economic advantage for the person making the disclosure or persons closely associated with him is identifiable.
State of the proceedings and further decision in Belgium
The CJEU has answered the questions referred by the Appellationshof Brüssel (Brussels Court of Appeal), but has not itself ruled on the fine. The Belgian court must now examine whether the conditions specified by the CJEU are satisfied in the specific case.
In doing so, it must in particular assess whether the disclosure was necessary for the performance of the political duties and whether it observed proportionality. It must also take into account that the national court had previously made findings as to the absence of any advantage and the absence of any intention to mislead. A final decision on the lawfulness of the sanction in the main proceedings is therefore still pending.
Significance for companies, investors and market participants
The judgment is of considerable relevance for capital market-oriented companies, state-owned investment companies, investors and persons with access to price-sensitive information. It shows that the protection of market integrity cannot be viewed in isolation, but in certain constellations must be balanced against fundamental communication rights.
At the same time, the CJEU confirms the strict basic structure of market abuse law. The disclosure of inside information remains prohibited in principle unless the narrowly interpreted conditions for lawful disclosure are met.
MTR Legal advises on capital markets law
The CJEU’s decision makes clear how demanding the distinction between lawful communication, political debate and unlawful disclosure of inside information can be. MTR Legal Rechtsanwälte advises companies, investors and high-net-worth private individuals on issues of market abuse law, capital markets law obligations and regulatory risks. Further information is available at Legal advice in capital markets law.
