5.9 Listing and the Information Management Regime 215they repurchase their common stock in accordance with the rule’s timing, price, manner of
purchase and volume conditions.^396
Whistle-blowing. The Directive on market abuse requires a whistle-blowing obli-
gation. Any person professionally arranging transactions in financial instruments
who reasonably suspects that a transaction might constitute insider dealing or
market manipulation must notify the competent authority without delay.^397
5.9.8 Enforcement
Rules on the enforcement of securities markets laws have only to a limited extent
been approximated at Community level. The allocation of responsibility for com-
pliance can depend on the regulation of corporate governance in the Member State
in question, and sanctions for the breach of duty largely depend on the governing
law.
The Member States have different approaches to sanctions in this area.^398 Each
Member State has adopted its own mix of civil, administrative, and criminal sanc-
tions. As a minimum requirement, sanctions should be “effective, proportionate
and dissuasive”. There is no room for an analysis of different approaches to sanc-
tions in the Member States here.
There can also be differences depending on the context: prospectus liability, li-
ability for financial information, liability for ad-hoc disclosure, and market abuse
have been regulated separately even in Community law.
Prospectuses and listing particulars. The “persons responsible” must be clearly
identified in the prospectus.^399 Member States must ensure that their laws, regula-
tions and administrative provisions on civil liability apply to those persons respon-
sible for the information given in a prospectus.^400
Member States must ensure that “the appropriate administrative measures can
be taken or administrative sanctions be imposed against the persons responsible,
where the provisions adopted in the implementation of this Directive have not
been complied with. Member States shall ensure that these measures are effective,
proportionate and dissuasive.” This is without prejudice to the right of Member
(^396) See, for example, Cole J Jr, Kirman I, Takeover Law and Practice. In: PLI, Doing Deals
2008: Understanding the Nuts & Bolts of Transactional Practice. New York City (2008)
pp 157–158.
(^397) Article 6(9) of Directive 2003/6/EC (Directive on market abuse). See also CESR, Mar-
ket Abuse Directive. Level 3 – first set of CESR guidance and information on the com-
mon operation of the Directive (May 2005).
(^398) See, for example, CESR, Report on Administrative Measures and Sanctions as well as
the Criminal Sanctions available in Member States under the Market Abuse Directive
(28 February 2008).
(^399) Article 6(1) of Directive 2003/71/EC (Prospectus Directive).
(^400) Article 6(2) of Directive 2003/71/EC (Prospectus Directive).