SUBJECTS OF INSIDER DEALING AND THEIR RESPONSIBILITY IN EU LAW

Abstract

The regulation of the circle of insiders, prohibited actions and sanctions by the provisions given in the EU Directives from 1989 and 2003 (IDD and MAD) and their analysis indicate the direction in which the regulation of the field of insider dealing in European law has changed. The determination of the circle of insiders given in the IDD was resolved by accepting two circles of insiders, primary and secondary, and as a result of that division, the actions and responsibilities of insiders are regulated and prohibited depending on the group they belong to. The new Instruction (MAD) took a step further in the regulation of this area. The treatment of insiders is equal and there is no division into primary and secondary insiders. The prohibition of disposing of privileged information applies equally to all persons, regardless of the group of persons into which they may be classified. Furthermore, as we have shown, the question of the assumption of knowledge of privileged information and the question of responsibility related to that question remains unresolved. The particular importance of the new Instruction (MAD), which shows a step forward in regulating the field of insider dealing, is the obligation to publish privileged information. Deadlines and a new way of publishing privileged information (obligation to publish on the issuer's website) are introduced. A very significant novelty compared to earlier solutions is the possibility of self-initiated postponement of the obligation to publish privileged information by the issuer. In the part of sanctions, the novelty in relation to the previous decision is the mandatory introduction of administrative sanctions. As criminal sanctions do not fall within the jurisdiction of the EU, some authors26 believe that with this approach the EU has come to the edge of its legislative competences, especially by ordering member states that administrative sanctions must be effective, proportionate and deter potential perpetrators from committing crimes. In addition, as a special remark, some authors point out that many important terms are regulated or will be regulated by second-level implementing Instructions, and when adopting them, member states no longer have a primary role. The analysis of the given solutions in the area of insider dealing in both EU Directives that regulate this area will enable an easier analysis and observation of the trend of protection in the area of abuse of privileged information. The domestic securities market is still underdeveloped, which can be easily seen from the fact that the competent Securities Commission has not recorded the existence of misuse of privileged information in any of its annual reports, let alone imposed a sanction for possible misuse. All this indicates that there is a current need to follow the new EU regulation in this area.