As a rule, information is disseminated by active behaviour. However, markets can also be manipulated by withholding information. Although Articles 12 and 15 of the MAR do not explicitly refer to the possibility of committing an offence by merely refraining from doing something, under Article 2(4) of the MAR the prohibitions and requirements of the MAR apply to actions and omissions. What this means is that an omission can also meet the definition of market manipulation in line with Article 2(4) of the MAR and section 13 of the StGB.

A condition for this in all cases is that there is a legal obligation to make public the information concerned. Besides German laws and regulations, the disclosure obligation may also be established under European regulations, and in some cases also under foreign laws and regulations (e.g. where an issuer’s securities are also traded on a foreign stock exchange and are subject to the capital market legislation of such foreign jurisdiction). By contrast, non-binding codes of conduct or similar voluntary agreements do not establish any disclosure obligations.

The disclosure obligation may result, for example, from the rules governing ad hoc disclosure (Article 17 of the MAR), voting rights notifications (section 33 of the WpHG), notifications of own account transactions by persons discharging managerial responsibilities (Article 19(1) of the MAR), the provisions governing disclosures under commercial and accounting law, or other capital market rules. It may result from event-driven provisions (e.g. in the case of a takeover under sections 10, 27 and 35 of the WpÜG) or provisions governing standard disclosure obligations (e.g. the obligation to prepare and publish the company’s annual financial statements under sections 325 et seq. in conjunction with 264 et seq. of the HGB).

Where it concerns withholding information, the infringement can only be committed by persons who are themselves subject to a standalone disclosure obligation or who are responsible internally within the company for compliance with a statutory disclosure obligation applicable to the issuer. Other persons may be responsible if they participate in the infringement.

Omission through withholding always happens if the circumstances to be disclosed are not revealed at all, i.e. to nobody. However, withholding may also happen if the information is not disclosed to all persons vis-à-vis whom a disclosure obligation applies. This is the case, for example, if the form of disclosure stipulated for the disclosure obligation is not complied with, and the actual disclosure does not inform all the public equally.

Withholding within the meaning of the prohibition of manipulation may also happen if information is disclosed too late. Finally, withholding may also apply if a provision on delay of disclosure is exercised for a disclosure obligation although the conditions for this do not apply.