The German Bundesgerichtshof has recently referred questions to the European Court of Justice ("ECJ") on the question when (premature) information regarding an uncertain event amounts to inside information that must be disclosed to the market.

Under EU rules, for 'inside information' to exist the information has to be of a precise nature. Information is deemed to be of a 'precise' nature if it indicates a set of circumstances which may reasonably be expected to come into existence. Such information must be disclosed immediately. The Bundesgerichtshof has asked the ECJ at what point in time it is reasonable to assume that a set of circumstances will come into existence. The Bundesgerichtshof has 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 as yet uncertain whether that future event will actually occur. In referring this question, the Bundesgerichtshof appears to be reconsidering its earlier position that inside information does not have to be disclosed until there is a reasonable expectation that the event will actually take place.

These questions have arisen in a case where investors allege that they were informed too late about the departure of a company's CEO. Their relevance however extends to other cases considering uncertain future events, including in a merger context (e.g. a possible public bid or a takeover).