Political leak in postal merger may qualify as protected speech in EU

(CN) — A politician who torpedoed a secret deal between Belgian and Dutch postal giants by talking to reporters may not have broken EU market-abuse rules after all, Europe’s highest court said Thursday.

The Belgian opposition politician, identified in court records only as MT, is trying to overturn a 12,500-euro (about $14,300) fine for revealing confidential information about a planned deal between Belgian postal operator Bpost and Dutch counterpart PostNL. He says he spoke out not to make money, but to force a public debate over the privatization of a major state-owned company.

The Court of Justice of the European Union largely agreed that such a defense is legally possible. Judges said “the disclosure of inside information in the media by a politician, with a view to criticizing an ongoing transaction involving the privatization of a public undertaking and seeking public debate on a matter of public interest, may fall within the normal course of the exercise of his or her duties” under the EU Market Abuse Regulation.

That does not mean politicians can leak market-sensitive information whenever they want. National courts must still ask whether the disclosure was genuinely necessary for the politician’s public role and proportionate to the potential harm to financial markets.

By May 2016, Bpost was on the verge of a major overhaul. Belgium had cleared the way for partial privatization of the state-controlled postal operator, while confidential negotiations were underway with Dutch rival PostNL over a merger and the sale of part of the government’s stake. According to the judgment, the deal was expected to be unveiled publicly on June 6, 2016.

Nine days earlier, MT went public.

During a radio interview, he said the Belgian state would soon sell part of its Bpost stake and that the company was about to lose its public status. He later went further, telling reporters and a newspaper that the Belgian state’s share would fall to between 30%-40%.

The comments landed in the middle of sensitive negotiations. Bpost immediately asked for trading in its shares to be suspended. The talks later collapsed and, according to the court, “the merger did not take place.”

Belgium’s financial regulator investigated, then fined MT in 2023 for disclosing inside information outside the normal exercise of his duties. MT challenged the penalty before the Brussels Court of Appeal, arguing he had acted as an opposition politician trying to inform the public, not as a market player seeking personal gain.

The Luxembourg-based court said Belgian judges cannot brush that aside. Opposition politicians, it said, may need room to challenge government policy and pull controversial decisions into public debate. In some circumstances, disclosing inside information can be part of that democratic function.

The judges also narrowed what counts as the kind of “advantage” that can defeat the media-expression exception. The benefit generally must be economic. A purely political boost, even one that helps the speaker’s party, is not enough by itself.

But the court also handed the Belgian judges a road map for pushing back. Market integrity remains a central goal of EU law, and the national court must decide whether MT really needed to reveal confidential details, particularly when privatization had already been publicly debated and an official announcement was only days away.

Barbora Bukovská, senior director for law and policy at free expression group ARTICLE 19, welcomed the ruling as recognition that media freedom is about more than protecting journalists.

“Democratic debate depends on many voices and sources, including politicians, whistleblowers, experts, activists and civil society who also communicate through the media,” Bukovská said. She said the court reaffirmed the importance of protecting financial markets but rejected the idea that market-abuse rules can serve as “a blanket reason to shut down speech that contributes to public debate and serves the public interest.”

The judges nevertheless left plenty of work for the Belgian courts.

Alain Pietrancosta, a business and securities law professor at Paris 1 Panthéon-Sorbonne University, said the ruling gives politicians more room to invoke media expression protections, but does so cautiously. The court repeatedly said the exception “may apply,” he noted, while leaving the decisive necessity-and-proportionality analysis to the Brussels Court of Appeal.

Pietrancosta also pointed to a question the judges sidestepped: Whether EU rules on unlawful disclosure apply to information broadcast to the public at all, or only to selective disclosures made “to any other person.” Rather than settle that issue, he said, the court assumed MT’s radio and newspaper comments fell within the rule and moved directly to the exception.

That may not be the last boundary-testing question raised by the case.

Katja Langenbucher, a corporate and securities law professor at Goethe University Frankfurt, said the judgment could end up reaching beyond politicians altogether. By grounding its analysis in free expression rights and recognizing protections beyond traditional journalism, she said, the court may have opened the door to future arguments involving activists and other public interest speakers online.

If politicians can invoke those protections when speaking through the media, Langenbucher said, future courts may eventually be asked why similar safeguards should not also extend to social media voices acting in the public interest.

MT’s lawyers and Belgium’s financial markets regulator did not respond to requests for comment.

The case now heads back to Belgium for the answer that matters most to MT. The Court of Justice’s ruling on the questions of EU law is final and cannot be appealed, but Luxembourg stopped short of deciding whether he broke the rules. The Brussels Court of Appeal must now decide whether the disclosure was justified and whether the penalty stands.

Although the judgment identifies the politician only as MT, Belgian media have previously reported that he is Jean-Pascal Labille, a former Belgian minister for public enterprises and a senior figure in the French-speaking Socialist Party. The court itself does not name him.

Courthouse News reporter Eunseo Hong is based in the Netherlands.