On 29 August 2002, the Banking Committee (a governing body of BCV) approved the restructuring plan presented by the general management. On 11 September 2002, the board of directors examined the plan. The board of directors decided to further examine the plan at the next board meeting to be held on 18 September 2002. It also instructed general management to expand on the contemplated strategy for BCV's restructuring.
On Saturday 14 September 2002, BCV learned that "Le Matin Dimanche" intended to publish on the following day a summary of BCV's restructuring plan. On Sunday 15 September 2002, "Le Matin Dimanche" ran an article containing confidential information about the restructuring of the BCV, in particular, with regard to BCV's general management. Text and images detailed which general managers were to lose their jobs.
Pursuant to Art. 72 of the Listing Rules of the SWX Swiss Exchange (LR), the issuer must inform the market of any price-sensitive facts which have arisen in its sphere of activity and are not of public knowledge. Price-sensitive facts means new facts which, because of their considerable effect on the issuer's assets and liabilities or financial position or on the general course of business, are likely to result in substantial movements in the price of the securities. A comprehensive restructuring of the issuer, as well as significant changes in the composition of its board of directors or at the general management level, all constitute potentially price-sensitive facts.
Pursuant to Art. 72 para. 2 LR, the issuer must provide information without delay as soon as it has knowledge of the main points of the price-sensitive facts in question. However and in accordance with Art. 72 para. 3 LR, it may postpone the disclosure of such information if, 1) the new facts are based on a plan or decision of the issuer, and 2) its dissemination is liable to prejudice the legitimate interests of the issuer. Art. 72 para. 4 LR stipulates that, if disclosure of the price-sensitive information is postponed, "the issuer must guarantee the complete confidentiality of such facts". Thus if confidentiality is breached in this regard, the issuer bears the responsibility to inform the public immediately, clearly and comprehensively while ensuring equal treatment of all market participants.
In the case at hand, the main points of the price-sensitive facts were known to BCV at latest on 11 September 2002 when the restructuring plan was presented to its board of directors. These price-sensitive facts pertain to the restructuring plan, the dissemination of which was liable to prejudice the legitimate interests of BCV. Thus BCV was entitled to postpone announcement under the condition that confidentiality remain ensured, which was not the case.
If the confidentiality surrounding price-sensitive information is breached, the issuer must immediately inform the public of the relevant price-sensitive facts. Following publication of the confidential information in the 15 September 2002 issue of "Le Matin Dimanche", BCV should have informed the public immediately instead of refusing to make any comment whatsoever on the information that had appeared in the media.
The Commission of the SWX Admission Board has ruled that Art. 72 LR is infringed if an issuer who has postponed disclosure of price-sensitive information fails to inform the public immediately upon learning that the confidentiality of such information is no longer ensured.
