In the financial field, the competent authorities and courts have an obligation to weigh up, on the one hand, the interests of an individual to have access to information covered by business secrecy and, on the other, the interests connected with keeping this information confidential, the Court of Justice of the European Union stated in a judgment returned on Thursday 13 September (joined cases C-358/16 and C-594/16).
Case C-358/16. In 2010, the Luxembourg financial supervisory authority dismissed Mr DV from his position as director of a regulated entity due to his role in the company Luxalpha, which was allegedly involved in the fraudulent activities of Bernard Madoff. Invoking its obligation of professional secrecy, it denied him access to documents relating to the supervision of Luxalpha and its depositary bank, UBS. Mr DV considers that these documents were necessary for his defence in the framework of an administrative procedure.
The 'MiFID' directive (2004/39) on the financial instruments markets stipulates that professional secrecy may be exceptionally disregarded in cases covered by criminal law.
Case C-594/16. One Mr Buccioni, the holder of a current account with the Banca Network Investmenti Spa (BNI), which was liquidated in 2012, received a partial reimbursement from the Italian interbank deposit protection fund. To allow him to assess whether it would be appropriate to bring legal proceedings, he asked the banking supervisor, Banca d'Italia, to disclose documents relating to the supervision of BNI, and this request was partially rejected on the grounds that some of the documents are covered by professional secrecy obligations.
The Italian Council of State asked the court whether the banking prudential directive (2013/36) prevents national competent authorities from disclosing confidential information to a person who so requests in order to be able to bring civil or commercial proceedings.
In its judgment, the Court states that in line with well-established case-law, there must be a strict interpretation of the derogations from the general prohibition on disclosing information covered by professional secrecy obligations.
The request made must therefore concern information on which the applicant puts forward precise and consistent evidence plausibly suggesting that it is relevant for the purposes of civil or commercial proceedings which are underway or to be initiated, the subject matter of which must be specifically identified.
The Court goes on to stress that it is also for the competent authorities and courts to weigh up the interests of the applicant in having access to information covered by professional secrecy obligations against the interests connected with maintaining the confidentiality of this information, before disclosing each piece of confidential information requested. (Original version in French by Mathieu Bion)