Not all the information in the file of a financial supervision authority is necessarily confidential, as professional confidentiality generally loses its confidential nature after at least five years, the Court of Justice of the EU stated in a judgement returned on Tuesday 19 June (case C-15/16).
Having suffered losses due to the fraudulent financial activities of the Phoenix Kapitaldienst company, a Mr Baumeister applied for access to certain documents concerning that company (special audit report, auditors' reports, internal documents, correspondence) received or sent by the German Federal Financial Supervisory Authority (BaFin) in the framework of the supervision of the company.
The German court, to which Baumeister brought proceedings following BaFin’s refusal, asked the Court of Justice of the EU whether professional confidentiality within the meaning of the directive (2004/39/EEC) on the financial instrument markets (MiFID) could be invoked in this case.
While the Advocate General holds that there is an unconditional right to professional confidentiality (see EUROPE 11924), the Court sees the matter as less black and white.
It considers that all information that the supervised enterprise has communicated to the competent authority and all the declarations of that authority in the company's surveillance file do not constitute, unconditionally, confidential information covered by the obligation to maintain professional secrecy.
This obligation refers to information that could, if disclosed, harm the interests of the person who provided it, third parties or the proper functioning of the supervision system instituted by the 'MiFID' directive.
The Court then observes that business secrets cease to be secret after at least five years. In exceptional cases, this can be increased if the information in question still constitutes essential elements of the commercial position of the company in question or others.
Such considerations do not apply to information on supervisory methodology or strategy.
Finally, the member states remain free to extend confidentiality to the entire content of the supervision file or, conversely, to allow access to the information in the possession of the competent authorities if this information is not confidential within the meaning of the directive.
It is ultimately up to the German court to verify whether the information held by BaFin on Phoenix Kapitaldienst comes under the obligation of professional confidentiality which that authority is required to observe. (Original version in French by Mathieu Bion)