Ten Years After: The Spector Presumption of Insider Dealing in MAD, MAR and MAD II

Abstract

The 10-year-old Spector Photo Group decision from the European Court of Justice has been the subject of considerable debate in EU insider dealing theory. Since the decision, the EU has drafted and implemented a new regulation, the Market Abuse Regulation (MAR), as well as a separate Directive on criminal sanctions for insider dealing, (MAD II). This article examines and analyses the use-presumption, developed in the case, with special attention to the distinctions between primary and secondary insiders as well as between criminal and administrative procedural contexts. It argues that the Spector-presumption was designed to be applied to primary insiders exposed to an administrative sanction only, but its scope is both more uncertain and broader than that, especially after MAR. The article also argues that the presumption does not make much sense within the MAD II regime. It ends in a concluding section asking whether the Spector-presumption plays an important role in today’s modern, traceable and well-documented trading world.