Case C‑15/16
Bundesanstalt für Finanzdienstleistungsaufsicht
v
Ewald Baumeister
(Request for a preliminary ruling from the Bundesverwaltungsgericht)
(Reference for a preliminary ruling — Approximation of laws — Directive 2004/39/EC — Article 54 (1) — Scope of the obligation of professional secrecy on national financial supervision authorities — Concept of ‘confidential information’)
Summary — Judgment of the Court (Grand Chamber), 19 June 2018
Freedom of establishment—Freedom to provide services—Markets in financial instruments—Directive 2004/39—National financial supervision authorities—Obligation of professional secrecy—Scope—Concept of ‘confidential information’
(European Parliament and Council Directive 2004/39, Art. 54(1))
Freedom of establishment—Freedom to provide services—Markets in financial instruments—Directive 2004/39—National financial supervision authorities—Obligation of professional secrecy—Time when the confidentiality of information is to be assessed
(European Parliament and Council Directive 2004/39, Art. 54(1))
Freedom of establishment—Freedom to provide services—Markets in financial instruments—Directive 2004/39—National financial supervision authorities—Obligation of professional secrecy—Limits—Presumption of inapplicability to commercial information that is historical
(European Parliament and Council Directive 2004/39, Art. 54(1))
Article 54 (1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC must be interpreted as meaning that all information relating to the supervised entity and communicated by it to the competent authority, and all statements of that authority in its supervision file, including its correspondence with other bodies, do not constitute, unconditionally, confidential information that is covered, consequently, by the obligation to maintain professional secrecy laid down in that provision. Information held by the authorities established by the Member States to perform the functions laid down by that directive that is information (i) which is not public and (ii) the disclosure of which is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the system for monitoring the activities of investment firms that the EU legislature established in adopting Directive 2004/39, is to be so classified.
It must also be stated that Article 54 of Directive 2004/39 establishes the general rule that disclosure of confidential information held by the competent authorities is prohibited and lists exhaustively the specific cases where, exceptionally, that general prohibition does not preclude their communication or use (see, to that effect, judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraphs 34 and 35). It is, accordingly, not the aim of Article 54 to create a right of access that can be exercised by the public to information held by the competent authorities or to regulate in detail how any such right of access that may be recognised in some cases by national law is to be exercised. It must, last, be emphasised that, since the sole aim of Article 54 (1) of Directive 2004/39 is to impose on the competent authorities the obligation to refuse, as a general rule, to disclose confidential information, within the meaning of that provision, the Member States remain free to decide to extend the protection against disclosure to the entire contents of the supervision files of the competent authorities or, conversely, to permit access to information that is in the possession of the competent authorities which is not confidential information within the meaning of that provision.
(see paras 38, 39, 44, 46, operative part 1)
Article 54 (1) of Directive 2004/39 must be interpreted as meaning that the confidentiality of information relating to the supervised entity and communicated to the authorities established by the Member States to perform the functions laid down by that directive must be assessed at the time of the examination which those authorities must undertake in order to decide on a request for disclosure relating to that information, irrespective of how that information was classified at the time when it was communicated to those authorities.
(see para. 51, operative part 2)
Article 54 (1) of Directive 2004/39 must be interpreted as meaning that information held by the authorities established by the Member States to perform the functions laid down by that directive that could constitute business secrets, but is at least five years old, must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties. Such considerations have no bearing in relation to information held by those authorities the confidentiality of which might be justified for reasons other than the importance of that information with respect to the commercial position of the undertakings concerned.
(see para. 57, operative part 3)