Sergio Gilotta (University of Bologna) has posted Insider Trading and the Non-Public Character of Information: Reflections on the CJEU’s Brännelius Judgment on SSRN. Here is the abstract:
The Court of Justice of the European Union marked a significant development in EU insider trading law. In its April 2026 Brännelius judgment, it adopted a restrictive interpretation of the non-public character of inside information, holding that information ceases to qualify as inside information only once it has been publicly disclosed by the issuer in accordance with Article 17 of the Market Abuse Regulation (MAR). While this approach effectively prevents insiders and tippees from exploiting information that is merely accessible but not yet reflected in market prices, it also gives rise to significant conceptual and practical difficulties. This article identifies two major shortcomings of the judgment. First, it produces paradoxical consequences for inside information that concerns issuers only indirectly and for issuers’ failures to comply with their disclosure obligations. Second, if interpreted broadly, Brännelius risks extending the insider trading prohibition to informed outsiders who independently uncover material information, thereby undermining information-search incentives and market efficiency. The article advocates a narrow reading of the judgment and concludes by highlighting the structural limits of the current formulation of the EU insider trading prohibition.
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