A chief financial officer buys shares in his own company three weeks before the announcement of a major contract. He told no one, used no intermediaries, bought openly, through the broker he has used for ten years. What follows is not a classic fraud case: it is an automatic alert from the monitoring systems, a request for information from ASF and, potentially, two parallel proceedings, one administrative, one criminal, for the same act.
This is what makes market abuse distinctive: it has no identifiable victim and no loss that can be calculated in the classic sense. What it does have is a reputational stake that often outweighs the legal one, for a listed issuer, a manipulation investigation translates immediately into price.
The starting point is not Romanian law, but Regulation (EU) No 596/2014 on market abuse (MAR), directly applicable, with no need for transposition. It defines inside information, prohibits its use and disclosure, defines and prohibits market manipulation, and sets out the obligations of issuers.
On top of it sits national legislation, which provides the sanctions: Legea nr. 24/2017 on issuers of financial instruments and market operations (republished, amended including by Legea nr. 158/2020), Legea nr. 126/2018 on financial instruments markets, and ASF Regulation no. 5/2018, whose Chapter II contains specific provisions implementing MAR. The competent authority is ASF, the Financial Supervisory Authority.
The sanctioning architecture has a feature that matters for the defence: the same conduct, for instance a breach of Article 14 or 15 of MAR, can be either an administrative violation or an offence, the dividing criterion being the form of fault. Where the act is committed without the form of fault required by law for it to qualify as an offence, it remains an administrative violation and is punished by ASF with a fine. The European directive on criminal sanctions for market abuse requires, for the serious forms, a maximum penalty of at least four years.
A note on method. In this area, penalty ranges and administrative fine amounts must be checked against the text in force, as published in Monitorul Oficial, by category of subject and by type of obligation breached, not against online compilations and summaries, which circulate with divergent figures. A wrong figure changes the whole strategy, and this material describes the mechanism, not the table.
Under Article 7 of MAR, the information must be precise, must not have been made public and, if it were made public, must be likely to have a significant effect on the price of the financial instrument or of the related derivatives. Each condition is contested separately.
An ongoing negotiation can be precise if its intermediate stages are themselves sufficiently concrete. A vague intention, an idea discussed at a meeting, a working hypothesis, is not.
The fact that information circulated within a narrow circle does not take it out of the category of inside information. What matters is whether it was published through the means required by EU law.
This is assessed by reference to the reasonable investor, not to how the share price actually moved after the announcement. It is an ex ante judgment, not a retrospective check.
MAR no longer uses the term “initiated person”, ASF has expressly pointed out that the term comes from the earlier regime and no longer appears in the current legislation.
Two 2026 rulings shifted the line. In its judgment of 19 March 2026, Case C-363/24 (Finansinspektionen v Carnegie Investment Bank AB), the Court of Justice of the EU revisited the precision criterion, examining when an e-mail containing information about a person's involvement in a transaction has “a precise nature” within the meaning of Article 7(1) and (2) of MAR.
In its judgment of 16 April 2026, Case C-229/24, the same Court held that national courts cannot treat information as having left the sphere of inside information merely because it was known to certain persons or could be obtained through a national mechanism for access to documents: it must be checked whether publication took place through the means and with the safeguards required by EU law. This is good news for the authorities and bad news for a defence relying on the argument that “everyone knew anyway”.
The useful distinction remains that between the primary insider, someone who holds the information by virtue of their status (member of the governing bodies, shareholder, employee, or through the exercise of their profession or duties), and the secondary insider, who receives it from someone else. Three types of conduct are prohibited: trading on the basis of the information (including cancelling or amending an order given before obtaining it), recommending or inducing another person to trade, and unlawful disclosure, outside the normal exercise of one's profession or duties. Disclosure is a stand-alone offence: no one needs to have actually traded.
Transactions between accounts controlled by the same person, creating the appearance of liquidity without any real transfer of risk.
Large orders, with no intention of execution, placed to move the price, then cancelled, with the real order executed in the opposite direction.
Concentrating orders in the last minutes of trading, in order to influence the reference price.
Press releases, “analyses”, forum posts and social media messages, including through anonymous accounts. This is close to directors spreading false news, under the Companies Law.
Submitting false information that contributes to the calculation of an index, benchmark manipulation.
The common element is not the loss, but the distortion of the price-formation mechanism. The defence cannot be built on “no one lost any money”.
When the financial flows generated by a manipulation scheme are later transferred or reinvested, the discussion can move up a level: money laundering as a stand-alone charge is frequently added, with its own evidentiary requirements.
Many investigations do not start from a transaction, but from a filing. These are technical obligations, but their consequences are not technical at all.
Article 17 MAR. ASF has clarified, by reference to Article 234(1) of ASF Regulation no. 5/2018, that information must be published as soon as possible, but within no more than 24 hours of the event occurring or of becoming aware of it.
ASF gives an express example: announcing a substantial acquisition or disposal of assets (at least 10% of the issuer's assets) does not satisfy the completeness requirement if the price is not also disclosed.
Possible, but strictly conditional: immediate publication would prejudice the issuer's legitimate interests, the delay is not likely to mislead the public, and confidentiality can be ensured. The decision is documented at the time it is taken, not reconstructed at the time of an inspection. ASF applies the ESMA Guidelines through Norma nr. 23/2022.
Article 18 MAR, in the format set out in Implementing Regulation (EU) 2022/1210. A document that is checked quickly and that, on its own, says who knew what.
Article 19 MAR: persons discharging managerial responsibilities and persons closely associated with them must notify the issuer and the authority promptly and no later than 3 business days. The obligation is triggered once the threshold of 5,000 euros, cumulative over the calendar year, is reached.
30 calendar days before the announcement of an interim or year-end report, during which managers cannot trade. Plus the reporting of suspicious orders and transactions (Article 16 MAR), which falls on intermediaries.
A confidentiality clause does not protect you. Transparency obligations cannot be limited by contractual clauses, ASF has expressly stressed that a confidentiality clause does not reduce or remove the substance of the information that must be reported. The argument “I had an NDA with the partner” does not work as a defence to non-disclosure. And inaccurate financial reporting separately opens up the discussion of forgery of documents and financial reporting.
A substantial ASF fine is not an “administrative tax”: by its nature and severity, it can have criminal character in the autonomous sense of Article 50 of the Charter of Fundamental Rights of the EU. If it does, combining it with criminal proceedings for the same act falls under the prohibition on double punishment.
The leading case law is from 20 March 2018, when the Grand Chamber of the CJEU handed down three judgments on the same day: C-524/15, Menci; C-537/16, Garlsson Real Estate and Others v Consob, concerning market manipulation specifically, in a case where an administrative fine of 10.2 million euros followed a final criminal conviction for the same acts; and joined cases C-596/16 and C-597/16, Di Puma and Zecca.
The resulting line is this: combining the two is not absolutely prohibited, but is permissible only if it serves an objective of general interest, is governed by clear rules, is coordinated between the authorities and remains proportionate, and Article 50 of the Charter has direct effect, so it can be invoked directly before the national court.
A practical point for the defence: if the company or individual has already been finally sanctioned by ASF, and the criminal charge concerns the same material acts and the same person, invoking ne bis in idem is a substantive defence, not a formality. The outcome, however, depends on the specific characterisation of the administrative sanction and on the proportionality of the whole, and cannot be promised. For what follows procedurally, the stages of criminal prosecution are the same as in any economic case.
In an investigation, the supervisory authority requests information, documents, explanations. Refusing to cooperate is, as a rule, punishable. But in its Grand Chamber judgment of 2 February 2021, Case C-481/19, DB v Consob, the CJEU held that the right to silence and the right not to incriminate oneself also apply in administrative proceedings capable of leading to sanctions of a criminal nature. In that case, the Italian authority had sanctioned a person both for insider dealing and for refusing to answer questions.
The consequence: an individual cannot be sanctioned for refusing to answer questions whose answers could establish their liability for an offence punishable under criminal law. The distinction remains a fine one, the obligation to hand over pre-existing documents is not the same as the obligation to give explanations, and this is why the line between cooperation and self-incrimination is drawn with legal assistance, from the first request, not afterwards.
Crypto: MiCA brings market abuse onto new ground. Regulation (EU) 2023/1114 (MiCA) extends, through Title VI, the rules against market abuse, the use of inside information, unlawful disclosure, manipulation, to crypto-asset markets. In Romania, the framework for applying it was set out in OUG nr. 10/2025, in force since 13 March 2025, which places MiCA powers with ASF, and the transitional period provided for by MiCA expired on 1 July 2026: after that date, crypto-asset service providers without a MiCA authorisation can no longer serve clients from the Union.
On 1 July 2026, the financial press reported that, in the absence of a complete national framework, authorisation applications could not actually be processed in Romania. For an operator, the practical conclusion does not change: institutional uncertainty does not suspend the substantive prohibitions in Title VI, which are directly applicable.
On any of the three conditions: lack of precision (a hypothesis, not a concrete stage), the information already being public (with the care required by the judgment of 16 April 2026), or the absence of any capacity to have a significant effect on the price.
MAR expressly recognises conduct that does not amount to abuse: performing an obligation that has fallen due, undertaken before obtaining the information; transactions carried out in performance of a mandate; market-making activity; acquisitions made in a public takeover bid on the basis of information from due diligence.
These benefit from an exemption, subject to strict compliance with the conditions in the applicable delegated regulation: a stated purpose, publication, volume and price limits, reporting. The exemption is “all or nothing”: failing to meet a single condition makes it inapplicable.
This does not lead to exoneration, but moves the case from criminal to administrative, which, in this field, is often the decisive difference.
The most effective tool. Who knew what, when, from which source, what order was given and when. A decision log kept up to date is worth more, in cases like these, than any closing argument.
Alongside the accusation, precautionary measures and confiscation, including extended confiscation, are discussed in parallel. And building the defence in an economic case starts with the order of these fronts, not with the closing argument.
The presumption of innocence is not a matter of politeness: anyone under investigation benefits from it until a conviction becomes final, and the burden of proof rests entirely with the prosecution.
If the matter involves a criminal complaint or an open file, the related analyses are grouped under economic criminal law. For how the defence is built, see defence in market abuse cases.
The burden of proof lies with the prosecution: it must be shown that you held the information and that you traded on the basis of it. The defence is built on objective elements: the timing of the decision, an investment strategy documented beforehand, a recurring purchase plan, the absence of access to that information. Timing alone is not evidence.
The notification obligation under Article 19 of MAR is triggered for transactions carried out after the 5,000-euro threshold is reached, a value cumulated over the calendar year. Below the threshold, the obligation has not arisen. Above it, every subsequent transaction must be notified, including small ones. The calculation is kept on an annual basis, not per transaction.
This is exactly the situation examined by the CJEU in its March 2018 judgments, including Garlsson, concerning market manipulation. Combining the two is not automatically prohibited, but it must be proportionate and coordinated, and Article 50 of the Charter of Fundamental Rights can be invoked directly before the court. The analysis is strictly individual and depends on the specific nature of the sanction applied.
An individual cannot be sanctioned for refusing to give answers that could establish their liability for an offence punishable under criminal law, this is the conclusion of the DB v Consob judgment. The right, however, is not a blanket refusal to cooperate: obligations to provide pre-existing documents or purely factual information remain. The line is drawn question by question, with legal assistance.
Yes. Title VI of MiCA extends to crypto-assets the prohibitions on the use of inside information, unlawful disclosure and manipulation. These prohibitions are directly applicable and do not depend on the stage reached by the national institutional framework. And from 1 July 2026, with the expiry of the transitional period, providers without a MiCA authorisation can no longer serve clients from the Union.
Informational material, updated on 18 July 2026. It does not constitute legal, tax or investment advice; individual situations must be analysed specifically, and no statement amounts to a promise of a result. Anyone under investigation benefits from the presumption of innocence until a conviction becomes final.
Time limits run from the date of communication. A first conversation clarifies what is being alleged, what you need to substantiate and how the defence is built, before an estimate becomes a tax assessment decision.