| Tittel: | Mosaikteori i markedsmisbrugsforordningen – Når vurderinger og analyser bliver intern viden | | Ansvar: | Peter Ring, Dan Moalem, Henning Hedegaard Thomsen, og Jeanette Kjeldgaard Rasmussen | | Forfatter: | Ring, Peter  / Moalem, Dan / Hedegaard Thomsen, Henning | | Materialtype: | Artikkel - elektronisk | | Signatur: | Nordisk tidsskrift for Selskabsret | | Utgitt: | København : DJØF Forlag, 2021 | | Omfang: | S. 64-75 | | Serie: | Nordisk tidsskrift for Selskabsret ; 3/2021 | | Emneord: | Innsidehandel | | Stikkord: | Forordning (EU) nr. 596/2014 - Markedsmisbruksforordningen 2014 om innsidehandel (MAR) | | Innhold: | RESUME/UDDRAG
In the USA, although still debated, the CFA Institute recognizes that in connection with investment analyzes etc. not only 1) significant publicly available knowledge, and 2) not significant publicly available knowledge, can be included but also 3) non-significant, not publicly available knowledge. By combining these three types of information, a “mosaic” emerges that provides a broader and thus better picture of a stock or an issuer. This approach is thus also referred to as the “mosaic theory”. In a Danish and European context, such a theory raises several issues, primarily of a capital market law nature under the Market Abuse Regulation (“MAR”), but also in relation to other areas of law, such as the regulation of trade secrets and confidentiality obligations. In relation to MAR, the relevant issues relate primarily to the definition of inside information and the associated prohibitions against unlawful disclosure and insider dealing. MAR does not contain a specific indication of how much non-publicly available information can be collected and whether this, when compiled, can be considered inside information. MAR also does not contain a requirement that the inside information, if such comes into existence, must originate from or be known at all by the issuer, provided the knowledge in question relates to the issuer or a financial instrument. In addition, MAR’s “safe harbor” provision with respect to research, estimates, and transactions based upon such, specifically states that the provision only applies if the research etc. is based on publicly available data. The aim of this article is to analyze whether the application of the mosaic theory in a Danish context can result in an investor or investment analyst through the collection and compilation of sufficient knowledge, including non-public data, can result in such person having acquired inside information as defined by MAR, and thus subject to the consequent restrictions. In this connection, it is considered whether the sources of the knowledge in question, and how this knowledge has otherwise been obtained, can be given importance in the assessment. It is concluded that application of the mosaic theory involving collection of non-public information, may result in the result itself being considered inside information, regardless of the source of information, and how this is obtained, triggering the prohibitions and restrictions under MAR. | | Del av verk: | Nordisk tidsskrift for selskabsret 3/2021 |
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