The information concerning a company under supervision received or drafted by a national financial supervisory authority is protected by the rules on business secrecy, said Advocate General Yves Bot in conclusions adopted on Tuesday 12 December (case C-15/16).
A Mr Baumeister, who considered that he had been harmed by the fraudulent financial activities of the company Phoenix, requested access to certain documents concerning this company (special audit report, official auditors' report, internal documents, reports and correspondence) received or drafted by the German Federal Financial Supervisory Authority (BaFin) as part of its supervision of the company. BaFin rejected the request.
The German court to which Baumeister brought the case asked the Court of Justice of the EU about the scope of business secrecy applicable in this case. Does all of the information notified by a company under supervision to the competent authority, without any other conditions, constitute confidential information and therefore business secrecy within the meaning of the directive (2004/39/EC) on the financial instruments markets (MiFID)? Are the statements of the supervisory authority in the file also covered by the concept of prudential confidentiality, by which the supervisory authorities are bound?
In his conclusions, Advocate General Bot responds in the affirmative. He explains that the authorities in question carry out a supervisory mission of general interest and in order to do this, they must have access to full, faithful and reliable information on the situation, developments and longevity of the company under supervision. For this supervision to be effective and efficient, supervised companies must be completely transparent towards the competent authorities. This implies a confidential treatment of the information concerning these companies.
These reasons may therefore justify a legitimate breach of the fundamental right of access to documents held by competent authorities in order to ensure the correct functioning and stability of the financial markets supervision system, the Advocate General concludes. (Original version in French by Mathieu Bion)