Landmark Decisions Ruled by the CJEU in 2026
Decisions handed down by the CJUE must always be considered. However, some of them are more significant or formative than others. This is the case with the decisions of June 18 [Case C-376/24, MT v. Executive Board of the Financial Services and Markets Authority (FSMA)] and July 16 (Case C-51/25, Betaal Garant Nederland CV v. De Nederlandsche Bank NV), 2026, as they concern the freedom of political debate and the recurring issue of intermediation on behalf of third parties.
Market Abuses and Freedom of Political Debate
Freedom of political debate and freedom of the press are essential in a democracy. The integrity of financial markets and the confidence of investors, who help finance our economy, are equally essential and explain the prohibition on disclosing inside information. These freedoms and this prohibition may, however, come into conflict, as demonstrated by the FSMA ruling of June 18, 2026.
In this case, a Belgian politician—a former minister and member of the Socialist Party—was accused of disclosing inside information regarding the ongoing privatization of a public company. His goal was to defend the future of the public sector and to spark a democratic debate on the matter. However, the FSMA’s Sanctions Commission found that the politician had disclosed inside information outside the scope of his official duties. This led to the financial penalty imposed by the FSMA and the referral of the case to the Belgian courts, which in turn referred the matter to the CJEU.
At issue, in addition to the principle of equality, are provisions concerning market abuses (Article 3(a) of the former Directive 2003/6 of January 28, 2003; Articles 10(1) and 21 of Regulation No. 596/2014 of April 14, 2014) and fundamental rights (Articles 11 and 52 of the Charter of Fundamental Rights of the European Union; Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). The question reformulated by the Court is as follows: Is the disclosure of inside information in the media by a politician, with the aim of criticizing an ongoing privatization of a public enterprise and calling for a public debate on a matter of general interest, likely to fall within the normal scope of the exercise of his or her duties within the meaning of the provisions on market abuse, read in light of the provisions on fundamental rights?
The laws governing market abuse establish a fundamental principle: the disclosure of inside information is prohibited. However, this prohibition includes an exception: disclosure is lawful if it occurs within the normal course of one’s employment, profession, or duties. This exception must be interpreted strictly, given that the purpose of these laws is to ensure the integrity of financial markets and investor confidence: disclosure is justified only if a “close connection” exists between the disclosure of inside information and the “normal course” of one’s employment, profession, or duties, provided that it is strictly necessary for the performance of such duties and complies with the principle of proportionality. This led the Court to conclude that the disclosure of inside information by a politician may fall within the normal scope of the performance of his or her duties and is therefore lawful.
This approach is not surprising. As the Court notes, a politician plays an essential role in a democratic society and may, by disclosing privileged information, seek to challenge or denounce government policies: he must be able to make his views known and express criticism of the government as part of a debate in the public interest. This approach raises a related question: since the disclosure of privileged information by a politician may fall within the normal scope of his or her duties, does such disclosure—when made in the media—fall under Article 21, which requires that the disclosure of information for journalistic purposes or for other forms of media expression be assessed by considering the rules governing freedom of the press and freedom of expression in other media, as well as the rules or codes governing the journalism profession?
The Court, recalling the wording, context, and purpose of Article 21, finds that this article may be applied to the disclosure of inside information by a politician, provided that the politician derives no advantage or benefit therefrom within the meaning of that provision—terms that refer to gains of an economic nature and not to gains of an exclusively political nature. It further reinforces its reasoning by considering the provisions of the Charter of Fundamental Rights.
Payment services and intermediation on behalf of third parties
Does a professional (Betaal Garant) that offers to establish security to guarantee payment for a real estate property in installments and that uses a foundation affiliated with it (the Betaal Garant Foundation) for fund transfers provide a payment service (execution of credit transfers)? In its July 16, 2026, judgment, the CJEU answered in the negative: under certain conditions, such a service does not constitute a payment service.
In its July 16, 2026, ruling, the Court provides a standard rationale for its decision: it examines the text, context, and objectives of Directive 2015/2366/EU of November 25, 2015, known as PSD2. While certain grounds for the decision could be criticized, the ruling should be upheld. Indeed, while Betaal Garant benefits from the payment services provided by the customer and the foundation through their payment accounts, it does not technically intervene in the execution of these services—more specifically, the service of execution of credit transfers. Therefore, it is solely a provider of security services for customers and builders, and not a payment service provider.
The question that arises is whether the outcome would have been the same if the professional had not used a foundation—in which case he would have received the funds and then transferred them to the contractors through payment accounts held with payment service providers. The Court does not rule on this issue; in our view, the answer is yes. Indeed, one could argue that, through the foundation, it was the professional who was acting. However, it is clear that one could apply this reasoning to other payment services, such as the money remittance, and that the issue of collecting funds on behalf of third parties gives rise to divergent interpretations across the European Union.
