Legal commentary by Frank Martin Laprade, avocat à la Cour, Partner at Jeantet, Associate Professor at the University of Paris-Saclay and Director of the DU in Stock Exchange and Listed Company Law.

On reading the decisions of the French Financial Markets Authority’s (AMF) Sanctions Committee, one might think that the answer is (obviously) yes, given that listed companies are often criticised for having disclosed information that is « incomplete »which the AMF’s guidelines also refer to as ’ imprecise », which (apparently) justifies financial penalties, some of which can be quite heavy.

In this regard, the Guide to Continuous Disclosure and the Management of Inside Information – drawn up by the AMF – states that: «  As regards In terms of the precision of information, it differs from accuracy in that information which is, in itself, accurate could, in fact, be imprecise if the issuer has also failed to disclose any other information or a piece of information that might have altered the market’s assessment of its situation. "[1]

Lack of « precision "

It is true that such a lack of « precision »could previously have been penalised for breaching the provisions of Article 223-1 of the RGAMF, which states: « The information provided to the public by the issuer must be accurate, precise and truthful », but it cannot be emphasised enough that this text now serves only a (purely) «educational» purpose»[2].

Indeed, this has now been the case – since 4 July 2016 and the entry into force of the European Regulation on market abuse (MAR) – that Article 12 defines the unlawful conduct liable to administrative sanctions, thereby also (retroactively) replacing the former Article 632-1 of the RGAMF, which concerned the dissemination of information « which give, or are likely to give, inaccurate information, inaccurate or misleading ".

However, as has been expressly acknowledged not only by the AMF’s Sanctions Committee[3], as well as the Paris Court of Appeal: «It is undisputed that Article 12.1(c) of the MAR Regulation is more restrictive than Articles 223-1 and 632-1 of the RGAMF, since the dissemination of information that is merely imprecise (…) can no longer to describe the breach, which will only be established in the event of false or misleading information regarding the offer, the »the demand for, or the price of, a financial instrument; or where such indications set, or are likely to set, the price of one or more financial instruments at an abnormal or artificial level”.[4]

(Bad) habits

Nevertheless, it has to be said that, in practice, the AMF appears to have retained its (bad) habits, as one still occasionally comes across notices of objections that « accuse Rallye of having failed to mention in this press release " information likely to be of interest to the market – which is (almost) always the case… -  "  According to them, the omission of these elements, which were among the key features of the Julia line, has led investors to an inaccurate or distorted view of the situation Rallye’s liquidity. "[5]

Similarly, the AMF has (recently) imposed sanctions on a listed company[6] for « having disseminated information which, quite apart from the fact that it did not contain inside information, was false or misleading in that it presented, in a press release and in a letter to shareholders, the situation of Pharnext in a way that does not reflect reality, in breach of Article 12 of the MAR Regulation. "[7]

The issuer was therefore accused of having « omitted »a piece of information, which (automatically) had the effect of making «" inaccurate » (within the meaning of Article 223-1 of the RGAMF) « the information contained in the press release dated 24 April 2019 »which« " did not reflect the level of available knowledge within Pharnext and presented the situation regarding the candidate drug in a more positive light than it actually was ". [8]

Abnormal or artificial level

From that point on, one has to admit that it really is the ’ inaccuracy » (admittedly indisputable) nature of the information disseminated, which served as the basis for the AMF’s finding of «market abuse», insofar as the AMF considered that: « In this context, this announcement was likely to be taken into account by investors when deciding whether to invest or divest and, as a result, was likely to influence the share price Pharnext at an abnormal or artificial level. " [9]

Thus, despite the amendment to the relevant legislation – which, incidentally, dates back 10 years (!) – the AMF has continued the practice of drawing a (logical) link between « the absence » of a piece of information and the « false or misleading »communications that do not mention it, pointing out, for example, that « the letter to shareholders dated 20 June 2019, which omitted the FDA’s recommendation to conduct a further study, did not enable investors to understand the situation General information on the PXT-3003 and to make an informed assessment the outlook upcoming marketing campaign. " [10]

Even more so than the (obvious) observation that withholding information – particularly if it is «inside information» – undermines the market’s ability to form a better view of « the situation »of the issuer; however, it would appear that what concerns the AMF is the fact that the issuer then (by definition) has a greater level of knowledge than the public.”.

Indeed, in the same case, the Sanctions Committee regrets (in particular) that : « Pharnext made a misrepresenting the extent of the information available by concealing the existence of the recommendations made by the FDA in the Minutes of 10 April 2019, on the alleged grounds that they are confidential. "[11]

A « lie "

Ultimately, the AMF therefore equates the (deliberate) withholding of information – which may, however, be «legitimate» under Article 17 of the Market Abuse Regulation (MAR) – with a « lie », as it concludes that : « Consequently, information on the exchanges that took place between Pharnext and the FDA’s comments regarding PXT-3003, as set out in the letter to shareholders dated 20 June 2019, were false or misleading. " [12]

In this regard, as part of its public consultation on the Listing Act[13], ESMA has nevertheless confirmed that a delay in the publication of information is permissible, provided that: « Information and/or data complete relating to the event or circumstances to which the inside information to be disclosed relates are not available straight away " [14].

These shortcomings do not necessarily mean that the information in question cannot be regarded as «privileged» within the meaning of Article 7 of the MAR, which does not require it to be « exact "[15]but «The issuer must collect information and data additional regarding the event or circumstance to be disclosed in order to enable market participants to carry out a proper assessment. "[16]

Under these circumstances, the AMF should no longer be able to criticise a listed company for knowing more than the market, since the new wording of Article 17 of the Market Abuse Regulation (MAR) allows it to defer the publication of «inside information» « without having to meet the former condition set out (until 2016) in Article 223-2 of the RGAMF, which required that such ‘omission »is not« not likely to mislead the public ".

From now on, in accordance with the new provisions of the Listing Act, it is POSSIBLE to delay the publication of «inside» information whenever this takes into account the issuer’s legitimate interests – for example, if the issuer still needs time to clarify/elaborate before publishing it – including if the « inside information which the issuer intends to delay the publication of differs significantly »from the issuer’s previous public announcement on the subject to which it relates’[17], as long as it doesn’t « contradictory »with such a notification (Article 17.4 of the MAR).".

In the event of a « contradiction "

In these circumstances, the mere fact that the market does not (temporarily) access to all the material information enabling it to assess the issuer’s situation is not objectionable under the (new) provisions of the MAR Regulation, as amended by the Listing Act, provided there is no « contradiction »between these different pieces of information.".

This applies only in the event of « contradiction »that the publication of such a press release could amount to a « market manipulation »by disseminating false or misleading information, as ESMA had in fact pointed out in 2016 in its guidance on the MAR Regulation: «ESMA has also considered including in the list of situations in which a delay in the disclosure of inside information is likely to mislead the public where issuers delay the disclosure of inside information in accordance with Article 17(4) of the MAR Regulation and disclose information incompatible alongside those affected by the delay. However, ESMA considers that this situation is already covered by the ban on market manipulation and finally decided not to mention it explicitly in the guidelines. "[18]

In criminal matters, the situation is different, insofar as the provisions of Article L 465-3-2 of the Monetary and Financial Code are not intended to be «clarified» by the new wording of Article 17 MAR resulting from the Listing Act, since the obligation - imposed on listed issuers to publish « as soon as possible »inside information relating directly to them” – does not appear in EU Directive 2014/57 of 16 April 2014 (MAD).

Furthermore, the scope of the OFFENCE of «disseminating false or misleading information» differs from that of the corresponding BREACH, as this offence is defined as: « the act, by any person, of disseminating, by any means, information which provide false or misleading information on an issuer’s situation or prospects or on the offer, the the price or value of a financial instrument, or which determine or are likely to determine the price of a financial instrument »at an abnormal or artificial level.'

When the MAD Directive was transposed into French law, the national legislature did indeed emphasise the difference in terminology compared with the European texts, with Mr Albéric de Montgolfier stating in Report No. 575 (tabled on 4 May 2016) that: « regarding the criminalisation of the dissemination of false information, your committee on The Finance Committee has, on the initiative of your rapporteur, adopted an amendment aimed at clarifying ‘false information’ also means information relating to the an issuer’s situation or prospects, rather than strictly on its value of an asset.»[19]

This may be why the Criminal Division of the Court of Cassation[20] was able to confirm that this offence was committed where information was published which, whilst (admittedly) accurate, had been presented in such a way as to mislead the reader, for example because of the « omissions » (voluntary) affecting them: thus, financial information may be regarded as « misleading »when it is presented in an ambiguous way – and this is because it is « incomplete » – if it is to the extent that it affects the understanding of « the situation »of the issuer by the market"[21].

[1] Position Statement DOC-2016-08

[2] F Martin Laprade, When a former regulatory obligation is transformed into a simple educational recommendation, Expert opinion - Finascope.fr  - July 19, 2022

[3] AMF CDS, 21 December 2017, SAN-2017-15; AMF CDS, 7 May 2018, SAN-2018-06; AMF CDS, 5 July 2018, SAN-2018-08; AMF CDS, 18 July 2018, SAN-2018-10

[4] Paris Court of Appeal, Chambers 5–7, 17 September 2020, No. 19/11033

[5] CDS Decision of 7 November 2023, para. 169

[6] Represented by the law firm Jeantet

[7] CDS Decision of 20 January 2025, paragraph 128

[8] CDS Decision of 20 January 2025, paragraph 139

[9] CDS Decision of 20 January 2025, paragraph 142

[10] CDS Decision of 20 January 2025, paragraph 152

[11] CDS Decision of 20 January 2025, paragraph 153

[12] CDS Decision of 20 January 2025, paragraph 154

[13] F Martin Laprade, We can’t wait for the (retroactive) implementation of the new provisions on ongoing market disclosure! Finascope Expert Opinion, April 2026

[14] Exhibit No. 10: ESMA74-268544963-1567 – Consultation Paper – MAR Guidelines on the time limit for the disclosure of inside information (19 February 2026) § 62

[15] F Martin Laprade, The Avanquest Case: Is Inside Information «Accurate, Precise and Truthful»?; Note for the AMF Sanctions Committee, 20 June 2017, Bull Joly Bourse – September 2017, p. 315

[16] Exhibit No. 10: ESMA74-268544963-1567 – Consultation Paper – MAR Guidelines on the time limit for the disclosure of inside information (19 February 2026) § 62

[17] (Former ESMA guidelines, which are now obsolete)

[18] Exhibit No. 11: ESMA/2016/1130 – Guidelines on the Market Abuse Regulation («MAR») – Delay in the disclosure of inside information – 16 July 2016, paragraph 86

[19] Senate Report No. 575, 2015–2016, by A. de Montgolfier, on the draft bill reforming the system for combating market abuse, p. 51

[20] Court of Cassation, Criminal Division, 4 February 2026, no. 24-84.091.

[21] Jeantet Newsletter March 2026