Sisäpiiritiedon määritelmä ja sisäpiiritiedon määrittäminen yritysjärjestelyssä
Avainsanat:
arvopaperimarkkinaoikeus, sisäpiirintieto, tiedonantovelvollisuus, markkinoiden väärinkäyttö, yritysjärjestelytAbstrakti
The definition of inside information and defining inside information in the context of an M&A transaction
The aim of the article is to define the notion of inside information in an M&A context. In its decisions in the Geltl case and the Lafonta case the Court of Justice of the European Union (CJEU) clarified that the definition of the notion of inside information comprises four elements, which all need to be met in order to consider a piece of information as inside information. Accordingly, the information must (i) be of a precise nature, (ii) not have been made public; (iii) relate, directly or indirectly, to one or more financial instruments or their issuers, and (iv) if it were made public, be likely to have a significant effect on the prices of the financial instruments to which it relates or on the price of related derivative financial instruments. In an M&A context, the question lies usually with the first and the fourth element of inside information, namely the “precise nature” of the information and the “materiality” of the information. In Geltl, the CJEU clarified that the phrase “may reasonably be expected” in the definition of the preciseness requirement means that there must be a “realistic prospect” for a set of circumstances to come into existence or an event to occur. In Lafonta, the CJEU clarified that a piece of information can be regarded as being of a precise nature if it is sufficiently exact or specific to constitute a basis on which to assess whether the set of circumstances or the event in question is likely to enable a conclusion to be drawn that the information is likely to have a significant effect on the pricing of the financial instruments to which it relates. As regards the assessment of the materiality requirement, it seems well-founded, at least in an M&A context, that a probability/magnitude test is being applied. A piece of new information can be considered material if it is such that it would alter the existing mix of available material information; and it would be likely picked up by a reasonable investor and used as a part of the basis for making an investment decision.
