Professional secrecy may be invoked by a national supervisory authority to justify its refusal to grant access to confidential documents in its possession, as long as the rights of defence of the requester may be preserved by other means, the Advocate General states in conclusions returned on Wednesday 26 July (case C-358/16).
In 2010, the Luxembourg financial sector supervisory body (CSSF) dismissed a Mr DV from his position as administrator of a business it supervised due to his role in the creation and operation of Luxalpha, a company alleged to have been involved in the fraudulent activities of Bernard Madoff. Mounting his defence, Mr DV requested access to documents collected in the framework of the supervision of Luxalpha and its custodian bank, UBS.
The administrative court, to which the dispute was brought, asks whether the CSSF may invoke professional secrecy to refuse to provide Mr DV with the documents, as the 'MiFID' Directive (2004/39) on the financial instrument markets stipulates that professional secrecy may not be invoked by a supervisory authority in criminal cases. Under Luxembourg law, the sanction handed down to Mr DV is not of a criminal nature.
In her conclusions, Advocate General Juliane Kokott finds that the expression 'criminal law', which is used in the directive, must be applied strictly. The expression cannot have the purpose of accepting that in criminal cases, the 'MiFID' directive authorises confidential information to be transmitted for any reason and to any authority or individual. Moreover, this particular case does not come under criminal law.
Kokott adds that it should be verified whether the right of access to the file should take precedence over professional secrecy in order to allow Mr DV to defend himself. She argues that the defence rights may be assured by other means than by providing Mr DV with access to documents likely to have exculpatory effect, as the directive allows authorities such as the CSSF to provide a competent court with such documents. It is then up to the judge to determine whether the documents in question do have exculpatory effect. (Original version in French by Mathieu Bion)