Some Reflections on the Self-Insider and the Market Abuse Regulation – The Self-Insider as a Monopoly-Square Insider

Abstract

This article deals with the self-insider, i.e. the possible creation of the inside information by a person and its (abusive) exploitation. It describes the situation in Italy and Germany and then provides a taxonomy of the several cases of self-insider. The article then analyzes the case law of the ECJ and the MAR regulatory provisions for justifying/neglecting the existence of the self-insider (Article 9.5 and 9.6 MAR). Given the unclear regulatory answer regarding its sanctionability, the article proposes, based on the economics of MAR, a law and economics reason of why the self-insider sometime should be sanctioned, by describing it as a peculiar monopolistic behavior able to distort investors’ confidence and market integrity. Finally, the article suggests that the European legislator should explicitly deal with the problem.

Keywords: Market Abuse Regulation, MAR, insider dealing, insider trading, self-insider, selfinsider, inside information, insider of itself, insider di se stesso; selbstgeschaffene innere Tatsachen, takeover, takeover for delisting

JEL Classification: G38, K22