Under EU law, issuers of securities listed on a regulated market in the European Union are obliged to promptly and publicly disclose any inside information which affects them directly. The German Bundesgerichtshof has referred questions to the European Court of Justice (ECJ) regarding the timing of disclosure of such information. In this particular case investors claim that they were prejudiced because the departure of a company's CEO was only made public after the meeting of the company's supervisory board, where the decision was taken. The investors claim that the CEO had announced already at an earlier date his intention to leave to the chairman of the supervisory board.

The Bundesgerichtshof has now asked the ECJ at what point in time it is reasonable to expect that a set of circumstances will come into existence, i.e. when is the legal criterion for 'inside information' to exist fulfilled. The Bundesgerichtshof also asked the ECJ if there is a duty to immediately disclose the steps preceding a future event (such as the signing of a letter of intent for a proposed acquisition), even if it is yet uncertain whether that future event will actually take place. These two questions address unclear aspects of the duty to disclose inside information. If the ECJ follows the position suggested by the Bundesgerichtshof, inside information would in certain instances have to be disclosed at an earlier stage than is currently assumed in the market. Any relevant developments regarding this case will be included in our future Europe Updates or Legal Alerts.

The document of the Bundesgerichtshof (in German only)