The Court of Justice of the EU (ECJ) has ruled that national financial supervisory authorities may be obliged to disclose information covered by professional secrecy to safeguard the rights of the defence of an applicant or so that information may be used in civil or commercial proceedings. The rulings are on joined cases, Case C-594/16, involving interpretation of Article 53(1) of the CRD IV Directive, and Case C-358/16, interpreting Article 54 of MiFID.

Mr Buccioni brought a claim against the Italian national supervisor, Banca d’Italia (Bdl), for refusing to give access to documents, on grounds of professional secrecy. Mr Buccioni claimed the documents could help him assess whether he could bring a claim for damages against Bdl for monetary loss suffered due to Bdl’s flawed supervision of Banca Network Investimenti SpA’s compulsory winding up. The ECJ held that:

  • Article 53(1), governing rules on professional secrecy, includes an exception where a credit institution is bankrupt or is compulsorily wound up. Mr Buccioni’s claim falls within this exception;
  • Article 53(1) does not prevent competent authorities from disclosing information to a person who requests it in order to be able to institute civil or commercial proceedings with a view to protecting proprietary interests which were prejudiced as a result of the compulsory liquidation of a credit institution;
  • however, the request for disclosure must relate to information which is relevant for the purposes of civil or commercial proceedings, the subject matter of which must be specifically identified by the applicant and without which the information in question cannot be used; and
  • it is for the competent authorities and courts to weigh up the interest of the applicant in having the information in question and the interests connected with maintaining the confidentiality of the information covered by the obligation of professional secrecy.

Mr DV was required to resign from his post as a director in 2010 as the Luxembourg financial authority (CSSF) declared he was no longer of good repute due to his role played in the setting up of a company which was involved in fraudulent activities. CSSF denied Mr DV’s request to documents (on the grounds of professional secrecy, among others) which Mr DV intended to use to defend his position. The question posed to the ECJ was whether the exception of criminal cases to the professional secrecy under MiFID is applicable in this scenario given that CSSF had imposed an administrative sanction, requiring Mr DV to resign his directorship. The ECJ held:

  • cases covered by criminal law’ (Article 54(1) and (3) of MiFID) does not cover an administrative sanction;
  • the obligation of professional secrecy (Article 54(1)), read in conjunction with Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, must be guaranteed and implemented in such a way as to reconcile it with the rights of the defence. Accordingly, it is for the competent national court, when a competent authority invokes that obligation to refuse to disclose documents in its possession that are not in the file concerning the person who is the subject of a measure adversely affecting him, to ascertain whether that information is objectively connected to the complaints upheld against him. If this is the case, the court must weigh up the interest of the person in question in having access to the information necessary for him to be in a position to exercise fully his rights of defence and the interests in connection with maintaining the confidentiality of the information covered by the obligation of professional secrecy.