Background
MT, a Belgian Socialist politician and former Federal Minister for Public Enterprises, served as Secretary-General of a major socialist mutual organization and as a leading member of the opposition Socialist Party. In May 2016, with confidential negotiations underway between the Belgian State and Dutch postal operator PostNL for the sale of a roughly 10% stake in Bpost — Belgium’s publicly listed state-controlled postal company — MT gave statements on RTBF radio and to journalists from lavenir.net and Le Soir. He disclosed that the State would sell shares, that it was “a matter of hours,” and that after the transaction the State’s holding would fall to between 30% and 40%. A formal press release announcing the deal had been planned for 6 June 2016.
MT’s disclosures caused Bpost to immediately request the FSMA to suspend trading in its shares. The market disruption ended the negotiations entirely — the merger with PostNL never occurred. The FSMA opened an investigation, and its Sanctions Committee ultimately imposed an administrative fine of €12,500 on MT in May 2023 for unlawfully disclosing inside information in breach of Article 25(1) of the Belgian Law of 2 August 2002 (which transposed Directive 2003/6/EC). MT had acted, he argued, to provoke democratic debate about a sensitive privatization of a major public-sector employer and derived no financial benefit.
MT appealed to the Brussels Court of Appeal, which stayed proceedings and referred two preliminary questions to the CJEU: first, whether Article 3(a) of Directive 2003/6 (applicable at the time of the conduct) bars a politician’s media disclosure of inside information made to spark public debate on a privatization; and second, whether the media-specific safe harbor in Article 21 of the Market Abuse Regulation (MAR, Regulation 596/2014) is confined to professional journalists or may also protect politicians who speak in the media.
The Court’s Holding
The Court (Fourth Chamber) consolidated the two questions and held that Article 3(a) of Directive 2003/6, Article 10(1) of MAR, and Article 21 of MAR — read in light of Article 11 of the Charter of Fundamental Rights, Article 52(1) and (3) of the Charter, and Article 10 ECHR — must be interpreted as permitting, in principle, a politician’s disclosure of inside information in the media to fall within the “normal exercise of duties” exception, and that Article 21 MAR is not confined to professional journalists but may apply to such a disclosure made for purposes of political expression.
The Court reaffirmed that the exception for disclosure “in the normal exercise of an employment, a profession or duties” must be interpreted strictly, requiring a close link between the disclosure and the exercise of those duties, with the disclosure being strictly necessary and proportionate. However, it recognised that a leading opposition politician who discloses inside information precisely to challenge government policy, to denounce a transaction affecting the public interest, and to bring voters’ demands into public debate may satisfy the “normal exercise of duties” criterion — even where such media disclosures are not a routine feature of those duties — because the role of an opposition party is essential in a democratic society. The Court noted MT’s statements of 27 May 2016 appeared to fit this characterisation, subject to verification by the referring court.
On Article 21 MAR, the Court held that its reference to “journalism or other form of expression in the media” is not limited to professional journalists: a politician who discloses or disseminates information in the media for purposes of political expression can potentially benefit from the requirement that the assessment be conducted in light of press freedom and freedom of expression rules, provided the person does not derive any financial advantage and does not intend to mislead the market. Article 21 does not function as an independent safe harbor derogating from Article 10 MAR, but rather informs how the Article 10 proportionality analysis is applied to media disclosures.
Key Takeaways
- The “normal exercise of duties” exception in Article 10(1) MAR (and its predecessor Article 3(a) of Directive 2003/6) is not categorically unavailable to politicians: an opposition politician acting in a democratic role to challenge government policy and spark public debate may, depending on the facts, satisfy the close-link and proportionality requirements.
- Article 21 MAR — the media safe harbor — extends beyond professional journalists to any person disclosing inside information “for the purpose of journalism or other form of expression in the media,” including politicians speaking in a political capacity, so long as no personal financial benefit is derived and there is no intention to manipulate the market.
- Even where Article 21 potentially applies, the disclosure must still be assessed for necessity and proportionality under Article 10 MAR; the referring national court must carry out that contextual fact-specific verification.
- The Court signalled that market disruption caused by the disclosure — including the collapse of the Bpost-PostNL merger — is a relevant factual consideration for proportionality, but does not automatically disqualify a politician’s disclosure from the exception.
Why It Matters
This ruling draws a significant constitutional line between market integrity rules and democratic political freedoms. It confirms that EU market abuse law does not operate as a blanket prohibition on opposition politicians speaking publicly about transactions affecting state-owned enterprises, even where those statements involve inside information. Regulators across the EU can no longer assume that fining a politician for media statements about a privatization is straightforwardly correct; they must now undertake a structured proportionality analysis that accounts for the democratic function of political opposition and the fundamental rights guarantees of press freedom and free expression under Article 11 of the Charter and Article 10 ECHR.
For compliance purposes, the decision creates meaningful uncertainty at the boundary between lawful political speech and unlawful market disclosure. Issuers, listed state-controlled entities, and their advisers will need to assess whether politicians involved in privatization discussions present a distinct inside-information leakage risk that standard confidentiality protocols — designed for market participants, not opposition politicians — may not adequately address. National financial regulators in particular must now calibrate enforcement decisions against a more nuanced, freedom-of-expression-sensitive framework when the accused is a political actor rather than a traditional market insider.