Defence in capital-market offences and abuses — market manipulation, insider dealing, inaccurate financial reporting — a technical, niche area where the economic stakes intertwine with financial regulation.
The capital market is one of the most regulated areas of business law. National and European legislation — in particular the market-abuse regime — establish strict transparency obligations and firm prohibitions on the use of information and conduct on the market. Breaching them can attract both administrative sanctions from the supervisory authority and criminal liability.
The particularity of these cases is their extreme technicality: they require an understanding of financial instruments, trading mechanisms, reporting obligations and how the price is formed on the market. A charge of manipulation or insider dealing cannot be rebutted without mastering these mechanisms — the ground on which it is in fact decided whether an operation was legitimate or abusive.
It is a niche area, covered by few professionals, and in which the intersection of the economic, financial and criminal components is particularly close.
Operations or the dissemination of information liable to give false signals or to fix artificially the price of a financial instrument. The defence concerns the economic reality of the operation and the intent.
The use, in trading, of non-public inside information. The defence concerns whether the information was genuinely inside information and its link with the trading decision.
The intentional presentation of unreal financial information about the issuer's economic situation — liable to mislead investors and affect the market.
Passing inside information to other persons outside the normal exercise of one's duties — a distinct offence, but linked to the regime of inside information.
In all of them, the question of substance is technical: was the information genuinely inside information, was the operation liable to distort the market, was there intent — or is it a legitimate transaction and decision, tendentiously read.
A particularity of this field is the coexistence of two levels: the market supervisory authority can apply administrative sanctions, and the same acts can attract, in their serious forms, criminal liability. The two procedures can run in parallel and influence each other.
The defence must therefore be thought through on both levels simultaneously — challenging the administrative sanction and the criminal defence — with a coordinated strategy, so that a position taken in one procedure does not undermine the other. A technical understanding of the market is, here too, the foundation on which everything is built.
The defence starts from the question of whether the information was genuinely inside information — that is, precise, non-public and liable to influence the price significantly — and whether the decision to trade was actually based on it. Many trades are based on public analysis, on one's own reasoning or on information that does not legally meet the inside character.
Reconstructing the moment and the real basis of the trading decision is the essence of the defence.
These are operations or information liable to give false or misleading signals about demand, supply or price, or that fix artificially the price of a financial instrument. The key is the distinction between a legitimate trading strategy and conduct intended to distort the market.
Many perfectly lawful operations can seem suspicious in isolation; the defence consists of demonstrating the real economic rationale and the absence of an intent to manipulate.
The two levels — administrative and criminal — can coexist. A sanction by the supervisory authority does not exclude, in serious forms, a criminal procedure for the same acts. This is why the defence must be coordinated: the position in the administrative procedure can directly influence the criminal one, and vice versa.
A unified strategy on both levels is essential so as not to compromise one through the other.
Because capital-market charges are, at their core, about how financial instruments, trading and price formation work. Without understanding these mechanisms, a defence cannot attack the substance — it can only talk around it. Economic and tax training provides the technical reading such a file requires.
An assessment of the situation establishes whether the contested operation was legitimate, whether the intent the law requires exists and how the defence is coordinated on the administrative and the criminal level.