MAR | Simplified Buy-Back Reporting Rules and CJEU Ruling on insider lists as inside information

Two recent developments under the Market Abuse Regulation (Regulation (EU) No 596/2014) ("MAR") deserve attention. First, on 27 February 2026, ESMA published a report (the "Report") proposing amendments to Commission Delegated Regulation (EU) 2016/1052 (the "Buy-Back Delegated Regulation") following the revision of MAR by Regulation (EU) 2024/2809 (the "Listing Act"). Second, on 19 March 2026, the Court of Justice of the European Union ("CJEU") ruled in Case C‑363/24 (Finansinspektionen v Carnegie Investment Bank AB) that a notification of a person's inclusion on an insider list can constitute inside information under Article 7 of MAR.

Buy-Back regulation amendments

Article 5 of MAR provides a safe harbour for buy-back programmes and stabilisation measures conducted in accordance with prescribed conditions. The Buy-Back Delegated Regulation sets out the corresponding regulatory technical standards ("RTS"). The Listing Act amended the MAR buy-back framework — notably centralising NCA reporting and moving to aggregate public disclosure — necessitating updates to the Buy-Back Delegated Regulation. In the Report, ESMA proposes targeted amendments to the RTS to align them with these changes, principally by streamlining the reporting and public disclosure requirements applicable to buy-back transactions. Given the limited scope of the proposed amendments, ESMA did not carry out a public consultation.

The amended draft RTS will be submitted to the European Commission, which has three months to decide on adoption.

Can an insider list notification be inside information? The CJEU says yes

The facts: Carnegie Investment Bank AB ("Carnegie") held pledged shares in listed company Starbreeze AB as collateral under a loan with Varvtre AB — a company owned by Starbreeze's then CEO and main shareholder ("BAK"). When the Starbreeze share price fell, Carnegie began selling the pledged shares on 15 November 2018 to cover the shortfall. That afternoon, Starbreeze's head of communications emailed Carnegie with a brief but consequential message: BAK had been placed on the insider list and could not sell shares. No reason was given. Carnegie paused the sale, but soon resumed it. The Swedish Financial Supervisory Authority (Finansinspektionen) took the view that the email constituted inside information and sought a SEK 35 million fine for insider dealing under Articles 8 and 14 of MAR.

The Swedish Supreme Court referred four questions to the CJEU, which can be grouped into two themes. 

• The first concerns precision: can a notification of insider list placement — without any explanation of the underlying event — be "of a precise nature" under Article 7(1) and (2) of MAR? The Court answered yes, in certain circumstances. Mere placement on an insider list is, in itself, neutral. However, when combined with a sales prohibition, the communication necessarily implies that the person has knowledge of an adverse event affecting the issuer — information capable of influencing a reasonable investor's decisions. 
• The second theme concerns accuracy: does the information need to be correct? Again, the Court took a broad view. Information that turns out ex post to be incorrect may still qualify as inside information, provided it was credible at the time and capable of conferring an economic advantage on its holder. In this case, the email was sent just minutes before BAK was formally added to the insider list — a discrepancy the Court considered immaterial.

Three practical points stand out:

1. Insider list notifications that include trading restrictions should be treated as potentially constituting inside information — even where the underlying event is not disclosed. Firms should ensure their compliance procedures flag and assess such communications under MAR.
2. Inside information is assessed objectively and ex ante. The issuer's own classification is irrelevant, and information need not ultimately prove correct to be "precise" — what matters is whether it was credible at the time.
3. The Court confirmed that Article 9(3) of MAR may provide a defence where a transaction is carried out in discharge of an obligation that became due in good faith, arising from an order placed or agreement concluded before the person possessed inside information. However, Article 9(6) preserves the possibility of an infringement finding where the competent authority establishes an illegitimate reason for the trading. Whether the defence is available will depend on the facts of each case.