OPINION OF ADVOCATE GENERAL
BOBEK
delivered on 12 June 2018(1)
Case C‑594/16
Enzo Buccioni
v
Banca d’Italia
joined parties:
Banca Network Investimenti SpA in compulsory administrative liquidation
(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))
(Reference for a preliminary ruling — Access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms — Professional secrecy — Bankruptcy or compulsory winding up of credit institutions — Disclosure of confidential information in civil or commercial proceedings — Request for access to documents before the commencement of civil or commercial proceedings — Action for damages)
I. Introduction
1. Mr Enzo Buccioni had a current account with Banca Network Investimenti SpA. In 2012, that bank went into a compulsory winding up procedure. He only received a partial reimbursement of the money in his account made to him under the Italian deposit guarantee scheme. As a result, Mr Buccioni lost more than EUR 81 000.
2. Mr Buccioni lodged a request for access to documents concerning the supervision of that bank with the Banca d’Italia (the Bank of Italy), the Italian banking supervisor. He sought information in order to assess whether he could potentially bring proceedings against the Banca d’Italia for the pecuniary loss he had suffered. The latter refused access to some of the documents requested on the ground that they contain confidential information.
3. Mr Buccioni has challenged that decision before the administrative courts in Italy. Citing a number of EU law provisions, in particular Article 53 of Directive 2013/36/EU, (2) the Consiglio di Stato (Council of State, Italy) refers questions to this Court. It essentially enquires whether a person in the situation of Mr Buccioni, who contemplates filing a claim for damages against the national banking supervisor, to recover pecuniary loss which he allegedly suffered because of defective supervision resulting in the compulsory winding up of a bank, could be granted access to documents necessary for pursuing such a claim.
II. Legal framework
A. EU law
1. Directive 2013/36
4. Directive 2013/36 lays down rules concerning access to the activity of credit institutions and investment firms. It also sets out rules on supervisory powers and tools for the prudential supervision of these institutions.
5. Article 53 of the directive is entitled ‘Professional secrecy’. It states in paragraph 1 that:
‘Member States shall provide that all persons working for or who have worked for the competent authorities and auditors or experts acting on behalf of the competent authorities shall be bound by the obligation of professional secrecy.
Confidential information which such persons, auditors or experts receive in the course of their duties may be disclosed only in summary or aggregate form, such that individual credit institutions cannot be identified, without prejudice to cases covered by criminal law.
Nevertheless, where a credit institution has been declared bankrupt or is being compulsorily wound up, confidential information which does not concern third parties involved in attempts to rescue that credit institution may be disclosed in civil or commercial proceedings.’
B. Italian law
6. In Italy, access to administrative documents is governed by Legge 7 agosto 1990, n. 241, recante nuove norme in materia di procedimento amministrativo e di diritto di accesso ai documenti amministrativi, e successive modificazioni (Law No 241 of 7 August 1990, as subsequently amended, concerning new provisions on administrative procedure and the right to access administrative documents) (‘Law No 241/1990’).
7. According to Article 22(2) and (3) of Law No 241/1990:
‘2. In view of its important public interest objectives, the right of access to administrative documents constitutes a general principle underlying the activities of administrative authorities in order to promote participation and to ensure that such activities are impartial and transparent.
3. Access to all administrative documents shall be granted, with the exception of those referred to in Article 24(1), (2), (3), (5) and (6).’
8. Article 24 of Law No 241/1990 foresees exclusions from the right of access. Paragraphs 1(a), 2 and 7 thereof read as follows:
‘1. The right of access shall not be granted:
(a) in respect of documents covered by state secrets within the meaning of Law No 801 of 24 October 1977, as subsequently amended, and in respect of secrets or prohibitions on disclosure expressly provided for by law, by the government regulation referred to in paragraph 6, and by the public authorities, as provided for in paragraph 2 of this article.
…
2. Individual public authorities shall identify the categories of documents drawn up by them or which are, in any event, available to them, that are excluded from access in accordance with paragraph 1.
…
7. However, applicants must be granted access to administrative documents where knowledge of such documents is necessary to safeguard or defend their own legal interests.’
9. Article 7 of Decreto legislativo 1º settembre 1993, n. 385, recante il testo unico delle leggi in materia bancaria e creditizia (Legislative Decree No 385 of 1 September 1993, as subsequently amended, concerning the Italian Banking Act), is entitled ‘Professional secrecy and cooperation between authorities’. It states in paragraph 1:
‘All information and data in the possession of Banca d’Italia by reason of its supervision activities shall be covered by official secret, including vis-à-vis public authorities, with the exception of the Ministry for the Economy and Finance, which presides over the Comitato interministeriale per il credito e il risparmio (the Interministerial Committee for Credit and Savings). Disclosure cannot be denied to judicial authorities on grounds of official secret where the information requested is necessary for preliminary investigations or proceedings relating to infringements for which criminal penalties may be imposed.’
10. According to Article 2(1)(a) of the Order of the Governor of the Banca d’Italia of 16 May 1994 on the rules governing exclusions to the right of access pursuant to Article [24(2)] of Law No 241/1990 (‘the Order of the Governor of the Banca d’Italia’):
‘The following shall not be disclosed, in accordance with Article 24(1) of Law No 241/1990:
(a) administrative documents, of general or specific content, containing information and data in the possession of Banca d’Italia by reason of its information-monitoring, regulatory, inspection and crisis-management activities in connection with banks, banking groups ..., and by reason of any other supervision activity relating to the provision of banking or financial intermediation services and the exercise of such intermediation activities, as covered by professional secrecy for the purposes of Article 7 of Legislative Decree No 385 of 1 September 1993 [and several other pieces of national legislation].’
III. Facts, national proceedings and questions referred
11. In 2004, Mr Buccioni (‘the Applicant’) opened a current account with the Banca Network Investimenti SpA (‘the BNI’), an Italian bank. On 5 August 2012, the balance of his current account was EUR 181 325.31. After the BNI went into a compulsory winding up procedure, only EUR 100 000 of the money held in his account was reimbursed to him by the Fondo Interbancario di Tutela dei Depositi (Interbank Deposit Protection Fund, the Italian deposit guarantee scheme).
12. On 3 April 2015, the Applicant lodged a request for access to documents with the Banca d’Italia, the Italian banking supervisor, which the latter held as the supervisor of the BNI. As confirmed by the interested parties at the hearing, he sought to obtain documents that would enable him to assess whether there was relevant information allowing him to bring proceedings against the Banca d’Italia, to establish its liability for the pecuniary loss he suffered as a result of the compulsory winding up of the BNI.
13. By decision of 20 May 2015, the Banca d’Italia granted access to some of the documents requested by the Applicant, but refused to disclose certain other documents. It argued that the latter documents concerned data it held for the purposes of banking supervision and therefore could not be accessed on the basis of the combined provisions of Article 24(1) and (2) of Law No 241/1990 and Article 2 of the Order of the Governor of the Banca d’Italia.
14. The Applicant brought a claim before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) seeking annulment of the decision of the Banca d’Italia and, as a result, the recognition of his right to consult and obtain copies of all the documents listed in his request for access. The first-instance court rejected this application by a judgment of 2 December 2015.
15. The Applicant then brought an appeal before the referring court, the Consiglio di Stato (Council of State, Italy). In the framework of this appeal, he alleged, inter alia, that the first instance court had incorrectly applied Article 53 of Directive 2013/36. (3) The Applicant also maintained that the documents he wished to access were no longer covered by professional secrecy, because the BNI was in a compulsory winding up procedure, and thus could not engage in banking activities anymore.
16. The Banca d’Italia submitted that the Applicant had yet to commence civil proceedings at the time that he submitted his request for access. Article 53 of Directive 2013/36 was therefore not applicable. The Banca d’Italia also stressed that the compulsory winding up of the BNI was still ongoing, so that the need for confidentiality remained unchanged.
17. In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:
‘(a) Is the principle of transparency, which is clearly set out in Article 15 of the [Treaty on the Functioning of the European Union], with its binding general objective, if construed as meaning that (that principle) may be regulated by the sources of law or equivalent provided for in Article 15(3), the content of which could suggest an excessively broad discretion that lacks foundation in a higher source of European law as regards the need to predetermine minimum principles from which there is no derogation, not at variance with the restrictive objective in European legislation concerning the supervision of the credit institutions, to such a degree that the principle of transparency itself is rendered ineffective, including in circumstances in which the interest in access is founded on vital interests of the applicant that are clearly comparable to the interests that constitute exceptions, in his favour, to the restrictions in the sector?
(b) As a result of this, must Article 22(2) and Article 27(1) of Regulation (EU) No 1024/2013 of the Council of 15 October 2013, which confers on the European Central Bank specific supervisory tasks in relation to the credit institutions, be interpreted not as non-exceptional cases in which derogations from the non-accessibility of documents are permitted, but as provisions to be interpreted in the light of the broader objectives of Article 15 of the [Treaty on the Functioning of the European Union] and, as such, founded on a general legislative principle of European law according to which access cannot be restricted, following a reasonable and proportionate balancing of the needs of the credit institutions with the fundamental interests of a saver caught up in a case of burden sharing, depending on the relevant circumstances established by a supervisory authority with organisational tasks and responsibilities in the sector comparable to those of the European Central Bank?
(c) Consequently, must not Article 53 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (text with EEA relevance), and the provisions of national law that reflect it, be reconciled with the remaining rules and principles of European law, as set out in the first question, to the effect that access may be granted, where requested after the banking institution has been placed in compulsory liquidation, including where the request for access is not made exclusively in the context of civil or commercial proceedings that have actually been brought to protect the financial interests that have been prejudiced because the banking institution has been placed in compulsory liquidation, but also where the request is addressed to a judicial body authorised by the national State to safeguard the right of access and transparency, specifically in order to determine the actual possibility of bringing such civil or commercial proceedings, before they are in fact instituted, with a view to protecting in full the rights of defence and the right to bring proceedings, with specific reference to the request of a saver who has already suffered the effects of burden sharing in connection with the winding up of the credit institution with which he deposited his savings?’
18. Written submissions were lodged by the Banca d’Italia, the Italian and Portuguese Governments, and the European Commission. Mr Buccioni, the Banca d’Italia, the Italian Government, and the Commission presented oral argument at the hearing held on 21 March 2018.
IV. Assessment
19. This Opinion is structured as follows. I will start with the admissibility of the present request for a preliminary ruling (A). Second, I will seek to assess which of the EU law provisions cited by the referring court are applicable to the present case (B). I will then turn to the interpretation of the third subparagraph of Article 53(1) of Directive 2013/36 (C).
A. Admissibility of the preliminary reference
20. In the course of the written part of these proceedings, the Italian Government and the Banca d’Italia suggested that the present request for a preliminary ruling ought to be declared inadmissible. In their view, the request for access to documents made by the Applicant had been satisfied. There was thus no longer a pending dispute before the referring court.
21. It would indeed appear that on 10 March 2017, after the request for the preliminary ruling had been lodged with the Court, the Applicant informed the referring court that he had received all the documents listed in his initial request for access from the Banca d’Italia. This was confirmed by the Banca d’Italia on 14 March 2017.
22. By letter dated 18 July 2017, the Court asked the referring court whether in view of those circumstances it wished to maintain its request for a preliminary ruling. By an order of 22 September 2017, the referring court stated that it wished to maintain its request, confirming that it considers itself validly seised and that the case is still pending before it. It noted in particular that the Applicant indicated that he wished to continue with the main proceedings, as not all of his claims had yet been satisfied.
23. As a matter of principle, it should be recalled that questions on the interpretation of EU law referred by a national court enjoy a presumption of relevance. (4) Issues such as whether, how long and until when a national court is validly seised of a case, so that there is a case pending before that court in the sense of Article 267 TFEU, are a matter for the national court to determine, in view of its interpretation both of the facts of the case before it and of the national rules of procedure. (5) What is determinant for this Court is that, according to an unequivocal declaration made by the referring court, that court confirms that it still considers itself validly seised under national law. (6)
24. Therefore, having regard to that confirmation, it is my view that the Court ought to conclude that it is appropriate to answer the present request for a preliminary ruling.
B. Applicable rules of EU law
25. By its first question, the referring court requests the interpretation of Article 15 TFEU. By the second, it asks for the interpretation of Article 22(2) and Article 27(1) of Regulation (EU) No 1024/2013, (7) read in conjunction with Article 15 TFEU. The third question concerns Article 53 of Directive 2013/36, also read in the light of Article 15 TFEU. In essence, these questions seek to ascertain whether the abovementioned provisions authorise the disclosure of documents such as those requested by the Applicant.
26. As regards the first two questions, I consider that neither Article 15 TFEU nor Regulation No 1024/2013 is in fact applicable in the present case.
27. Article 15(1) TFEU sets out the principle of openness in the conduct of the work of the Union institutions, bodies, offices and agencies. Similarly, Article 15(3) TFEU establishes ‘a right of access to documents of the Union institutions, bodies, offices and agencies’. The wording of these provisions, as well as the case-law of this Court, confirm that Article 15 TFEU only applies to the EU institutions, bodies, offices and agencies, and to documents held by them, even where those documents were drawn up by another institution or by a Member State. (8) Even if Article 15 TFEU is read in conjunction with other provisions of primary law touching upon the principle of openness, such as the second paragraph of Article 1 TEU and Article 298 TFEU, or with Article 42 of the Charter of Fundamental Rights of the European Union, (9) the fact remains that those provisions lay down, in a similar vein to Article 15 TFEU, the objective of an open European — rather than national — administration. (10)
28. As a result, access to documents in the possession of national administrations is not governed by Article 15 TFEU, but by national rules on access to documents. In the main proceedings, this means that Italian law will govern, as a matter of principle, a request made to the Banca d’Italia for access to documents drawn up or held by the latter.
29. As far as the second question is concerned, the first subparagraph of Article 1 of Regulation No 1024/2013, entitled ‘Subject matter and scope’, states that ‘this Regulation confers on the [European Central Bank (‘the ECB’)] specific tasks concerning policies relating to the prudential supervision of credit institutions …’. It is thus clear that Regulation No 1024/2013 only applies to the ECB, and not to national competent authorities entrusted with the prudential supervision of credit institutions, such as the Banca d’Italia. This is further confirmed by the fifth subparagraph of the same article, which states that ‘this Regulation is without prejudice to the responsibilities and related powers of the competent authorities of the participating Member States to carry out supervisory tasks not conferred on the ECB by this Regulation’. Thus the facts of the present case, which involve an examination of the obligations of a national supervisory authority concerning the disclosure of confidential information, do not appear to fall within the scope of application of Regulation No 1024/2013.
30. Therefore, the only EU law provision directly relevant for the present case seems to be the one invoked by the referring court in its third question: Article 53(1) of Directive 2013/36. However, before turning to the interpretation of that specific provision, I wish to clarify two points.
31. First, as Article 15 TFEU is not applicable to requests for access to documents made to national authorities, I do not think it is possible to interpret Article 53(1) of Directive 2013/36 in the light of Article 15 TFEU or, more generally, of an EU principle of openness or transparency. That would come dangerously close to a circumvention of the scope of application of EU law and to an extension of it to areas and issues that it clearly does not intend to govern.
32. However, second, as I have already mentioned in point 28 of the present Opinion, a request (such as the one made by the Applicant) to a national supervision authority (such as the Banca d’Italia) to obtain access to documents held by it for banking supervision purposes will be subject to the relevant national rules on access to documents. Hence, the first level of rules to apply in the present case is constituted by the national rules on access to documents. The second level of rules is then formed by the general provision on professional secrecy foreseen by the first subparagraph of Article 53(1) of Directive 2013/36. This provision constitutes an EU law-induced exception to the general principle of access to documents apparently provided for by national law. Finally, the third-level rule is the third subparagraph of Article 53(1), which provides for an exception to the second-level rule. Therefore, in the present case, as well as, for that matter, in any case of a similar nature in which an applicant seeks access to documents held by a national authority, the provision of the third subparagraph of Article 53(1) of the directive amounts, in practice, to reverting back to the principle of the first-level rule: the general principle of access to documents.
33. Put differently, if the default rule on access to documents provided for by national law is to grant access, then it is actually the general principle of (the first subparagraph of) Article 53(1) of Directive 2013/36 (and the national rules implementing that provision) that is the exception to that rule.
C. The third subparagraph of Article 53(1) of Directive 2013/36
1. The origin of the rule
34. The present case is the first occasion that the Court has had to interpret the third subparagraph of Article 53(1) of Directive 2013/36 or its equivalent predecessors, namely Article 44(1) of Directive 2006/48 and Article 30(1) of Directive 2000/12/EC. (11)
35. Prior to that, an equivalent provision also existed in Article 12(1) of the First Council Directive 77/780/EEC (12) (‘the First Council Directive’). However, that provision did not exist in the initial version of the First Council Directive. The latter only contained a provision that was largely similar to the one currently found in the first subparagraph of Article 53(1) of Directive 2013/36. It established the general obligation to maintain professional secrecy, prohibiting confidential information from being ‘divulged to any person or authority except by virtue of provisions laid down by law’.
36. In 1989, the Second Council Directive 89/646/EEC (13) (‘the Second Council Directive’) amended the First Council Directive, replacing Article 12(1) with a new text that included the rules currently found in the second and third subparagraphs of Article 53(1) of Directive 2013/36.
37. The amendment brought about by the Second Council Directive was adopted after the Court’s decision in Hillenius. (14) The claimant in that case was the municipality of Hillegom, in the Netherlands. It had deposited money in a Dutch bank that was later declared insolvent. The claimant applied for and obtained an order for the provisional examination of witnesses, a procedure which in Dutch law was available before proceedings for substantive relief were commenced. The defendant, Mr Hillenius, worked for De Nederlandsche Bank (the Dutch Central Bank), which was the supervisory authority under the First Council Directive. He was one of the witnesses called to give evidence about the insolvency. The purpose of the questions put to him was to substantiate the claimant’s conviction that the central bank had failed to properly supervise the activities of the bankrupt entity. He refused to answer some questions on the grounds of banking secrecy, as the questions concerned the manner in which the Dutch Central Bank had exercised its supervision.
38. In its judgment, the Court held that the obligation to maintain professional secrecy under Article 12(1) of the First Council Directive also covered statements made by employees of a supervisory authority as witnesses in civil proceedings. (15) Concerning the exception in that provision to the prohibition to divulge confidential information — ‘except by virtue of provisions laid down by law’ — the Court held that, in the absence of clear guidance in national law, it was for the national court to find the balance ‘between the interest in establishing the truth, which is fundamental to the administration of justice, and the interest in maintaining the confidentiality of certain kinds of information ... In weighing up those interests the national court must in particular decide, should it be necessary in the case in point, what importance is to be attached to the fact that the information in question was obtained from the competent authorities of other Member States in accordance with Article 12(2) of the Directive’. (16)
39. Four years after the judgment in Hillenius, Article 12(1) was substantially amended by the Second Council Directive. The term ‘except by virtue of provisions laid down by law’ was replaced by a prohibition to divulge confidential information ‘except in summary or collective form, such that individual institutions cannot be identified, without prejudice to cases covered by criminal law’. This was therefore very similar to the wording of the current second subparagraph of Article 53(1) of Directive 2013/36. Moreover, the rule currently contained in the third subparagraph of Article 53(1) was added, and has remained virtually unchanged.
40. The history and the context of Article 53(1) of Directive 2013/36 demonstrate two points.
41. First, the history of Article 53(1) of Directive 2013/36 shows that, initially, the EU legislature did not consider it necessary to provide for specific, EU law based exceptions to the principle of the protection of professional secrecy. It simply deferred to exceptions foreseen by national law. It was only later that the exceptions themselves also became ‘Europeanised’.
42. Second, the wording of Article 53(1) of Directive 2013/36 (seen together with its previous incarnations) has undergone a considerable evolution, especially as regards the exceptions it foresees. Thus, the wording of these exceptions has certainly not been carved in stone.
43. This statement is further enhanced by the fact that parallel instruments of EU law that contain provisions of a similar nature appear to be worded differently. For instance, Article 76(1) and (2) of Directive 2014/65/EU (17) (which replaced the identical provisions of Article 54(1) and (2) of Directive 2004/39/EC (18)) has a similar wording to Article 53(1) of Directive 2013/36. More specifically, the provision that is similar — but not identical — to the third subparagraph of Article 53(1) of Directive 2013/36 is Article 76(2) of Directive 2014/65. (19) Another similar — but not identical — provision is Article 102(1) of Directive 2009/65/EC. (20) This is in stark contrast with the approach of Article 25(1) of Directive 2004/109/EC, (21) which simply defers to the possible exceptions provided by national law, following the same logic as the original version of the First Council Directive. As far as disclosure by the European supervisory authorities is concerned, both Article 70 of Regulation (EU) No 1093/2010 (22) and Article 70 of Regulation (EU) No 1095/2010 (23) contain the general rule on the obligation of professional secrecy and the derogation for criminal law and for disclosure in summary or aggregate form, but allow for no derogation relating to civil or commercial proceedings.
44. In sum, in view of such historical and contextual diversity, not only in exact wording but also in approaches, I would suggest that a healthy dose of scepticism is called for in relation to arguments that insist on suggesting that if the third subparagraph of Article 53(1) of Directive 2013/36, as it happens to be worded today, were not to be interpreted as restrictively as possible, the effective supervision of credit institutions and investment firms would be fatally compromised. It would appear that both in the past as well as in parallel regimes (which are certainly not less sensitive) the rules were or are worded differently, sometimes less restrictively, apparently without the entire edifice immediately crumbling and falling apart.
2. The interpretation of the notion of ‘in civil or commercial proceedings’: Altmann
45. The referring court takes it for granted that the information the Applicant wishes to access is confidential and that it does not concern any third parties involved in attempts to rescue the BNI. The referring court also states (and it was confirmed at the hearing) that the BNI is (still) being compulsorily wound up. Thus the only remaining issue with regard to the interpretation of the third subparagraph of Article 53(1) of Directive 2013/36 (24) in the present case is the scope of the expression ‘in civil or commercial proceedings’.
46. In that regard, the Applicant considers that he has a right of access to the documents he requested from the Banca d’Italia in so far as he intends to use them for the purposes of (potential) civil or commercial proceedings. As for the Banca d’Italia, it considers that access to these documents could only be granted in the course of (pending) civil or commercial proceedings.
47. The present case is the first occasion for the Court to interpret the notion of ‘in civil or commercial proceedings’ under Article 53(1) of Directive 2013/36. However, a parallel notion was already interpreted by the Court in the context of a similar provision contained in Article 54(1) and (2) of Directive 2004/39 in the judgment in Altmann and Others. (25)
48. Mr and Mrs Altmann and other investors requested access to documents and information held by the Bundesanstalt für Finanzdienstleistungsaufsicht (the German Federal Financial Supervisory Authority, ‘the BaFin’), regarding Phoenix Kapitaldienst GmbH (‘Phoenix’), an investment firm whose business model was aimed primarily at defrauding investors on a large scale. Phoenix was dissolved and later subjected to a compulsory winding up procedure. There was an initial criminal procedure against two of Phoenix’s executives. Subsequently, Mr and Mrs Altmann and the other investors made the request for access to documents, which was only partially granted by the BaFin. Access to some of the documents was refused on the ground that they were covered by the obligation of secrecy as provided by German legislation transposing Directive 2004/39. The applicants then brought an action before a German court against the decision of BaFin. That court referred a question to the Court asking whether, considering that the information requested related to criminal acts and other serious transgressions of the law, it could, as an exception, disregard the obligations of professional secrecy arising out of the directive.
49. Citing the judgment in Hillenius, the Court noted that ‘the effective monitoring of the activities of investment firms ... requires that both the firms monitored and the competent authorities can be sure that the confidential information provided will, in principle, remain confidential’, (26) adding that the absence of such secrecy was ‘liable to compromise the smooth transmission of confidential information necessary for monitoring’. (27)
50. Nevertheless, Article 54 of Directive 2004/39 also provided for exceptions to the general prohibition on disclosing confidential information. Examining these exceptions, the Court looked at the ‘without prejudice to cases covered by criminal law’ exception of Article 54(1), (28) as well as the ‘in civil or commercial proceedings’ exception of Article 54(2) of the directive. On the latter, the Court stated that ‘the obligation to maintain professional secrecy may be disregarded, without prejudice to cases covered by criminal law, only where the three conditions [foreseen by Article 54(2)] — namely that the confidential information must not concern third parties, that that information is divulged in civil or commercial proceedings and that that information is necessary for carrying out that proceeding — are fulfilled’. (29) The Court concluded as follows: ‘it does not appear from the order for reference that the dispute in the main proceedings, which concerns an administrative procedure relating to a request for access to information and documents held by a national supervisory authority on the basis of the [pertinent German legislation], …is made in the course of civil or commercial proceedings brought by the applicants in the main proceedings’. (30)
51. It is interesting to note that the expression ‘in the course of’, used in the English version of the judgment, does not appear in the wording of Article 54(2) of Directive 2004/39. (31) Moreover, the Court added that the request in that case was not made in proceedings ‘brought by the applicants’, which could be read as implying that proceedings ought to have already been brought in order for the rule to apply.
52. However, the Court did not expressly state that civil or commercial proceedings must already be pending in order for Article 54(2) of Directive 2004/39 to apply. This contrasts with the Opinion of Advocate General Jääskinen in that case, who underlined the need for a strict interpretation of the rule. He stressed that ‘the legislature permitted disclosure in civil or commercial proceedings and not for the purposes of such proceedings. Therefore, according to the wording of the exception, which is to be construed strictly, there must always be pending civil or commercial proceedings in order for Article 54(2) of Directive 2004/39 to apply’. (32) In his view, ‘the exception does not extend to requests whose purpose is to obtain confidential information held by the competent supervisory authority, so as to discover whether any of that information might assist in a subsequent, independent claim, not being part of existing civil or commercial proceedings’. (33)
3. Why Altmann should not be extended any further
53. The third subparagraph of Article 53(1) of Directive 2013/36 and Article 54(2) of Directive 2004/39 are largely similarly worded. It could thus be argued that the approach of Altmann should be applied to the present case, as suggested by the Banca d’Italia, the Italian and Portuguese Governments, and the Commission. Indeed, they all consider that Altmann should be read as requiring, in order for Article 54(2) of Directive 2004/39 to be applicable, that civil or commercial proceedings are already pending.
54. If such an interpretation were applied by analogy to the present case, it would mean that the exception in the third subparagraph of Article 53(1) of Directive 2013/36 to the (general) prohibition to disclose information would not be applicable. The request for access to documents was not made in the course of civil or commercial proceedings, but rather for the purposes of civil or commercial proceedings. Thus, the Applicant would be barred from gaining access to any document or information.
55. I would wish to stress again the fact that the Court in the judgment in Altmann — in contrast to Advocate General Jääskinen in his Opinion — did not expressly state that proceedings had to be pending as a condition for the application of that provision. However, even assuming that the Court implicitly established such a condition, I see a number of reasons why an application by analogy of such a rule to the present case would be problematic, leading to highly questionable results. Before outlining several such problems (c), I shall set out the legal (a) and factual differences (b) that distinguish Altmann from the present case.
(a) Legal differences
56. While indeed being largely similar provisions, the third subparagraph of Article 53(1) of Directive 2013/36 and Article 54(2) of Directive 2004/39 also differ in their precise wording.
57. First, whereas Article 54(2) of Directive 2004/39 allows confidential information to be divulged only if it ‘does not concern third parties’, the third subparagraph of Article 53(1) of Directive 2013/36 allows confidential information to be disclosed provided it ‘does not concern third parties involved in attempts to rescue that credit institution’ (emphasis added). Therefore, the latter provision narrows down the scope of the ban on disclosure of information concerning third parties: this ban only covers confidential information regarding not just any third party (as in the case of Directive 2004/39), but only third parties involved in attempts to rescue the credit institution that has been declared bankrupt or is being compulsorily wound up. In other words, this means that, under Directive 2013/36, the possibility to allow for disclosure is broader than under Directive 2004/39.
58. Second, whereas Article 54(2) of Directive 2004/39 allows confidential information to be disclosed in civil or commercial proceedings ‘if necessary for carrying out the proceeding’, (34) Directive 2013/36 does not contain, significantly, any such restriction. The wording of Directive 2004/39 is therefore narrower than that of Directive 2013/36. The absence of such a requirement in the third subparagraph of Article 53(1) of Directive 2013/36 again allows greater leeway for disclosure than under Directive 2004/39.
59. Third, on a rather ancillary note, in some linguistic versions, the notion ‘in civil or commercial proceedings’ itself is not equivalent in both directives. This is notably the case of the Italian version of the directives, as the Applicant pointed out at the oral hearing, as well as other linguistic versions. (35) For other linguistic versions, however, the notion used in both directives is the same. (36)
60. To sum up, the third subparagraph of Article 53(1) of Directive 2013/36 is a broader provision than Article 54(2) of Directive 2004/39. Or, seen from the other side of the coin, the possibility of non-disclosure, in cases where a credit institution has been declared bankrupt or is being wound up compulsorily, is narrower. This difference, again if viewed in the context both of the historical evolution of this provision and of the other parallel instruments governing the same issue, (37) casts doubts as to whether the EU legislature intended, if indeed any such legislative coordination was present, for both provisions to have the same scope.
(b) Factual and contextual differences
61. Besides the legal differences between the present case and the one which gave rise to the judgment in Altmann, I would like to highlight a twofold factual and contextual difference between these cases at the national level.
62. First, in terms of procedure, the present case concerns a pure access to documents scenario, largely detached from the insolvency procedure as such. During the oral hearing, it was confirmed that the winding up procedure concerning the BNI is still ongoing and that the Applicant has participated in this procedure as an unsecured creditor. However, access to documents such as the ones he requested from the Banca d’Italia could apparently not have been granted to him within the winding up procedure by means of a request to the liquidators. The reason is simply that liquidators do not possess the type of documents requested. Thus, the discussion of whether the insolvency procedure could in itself be considered as ‘civil or commercial proceedings’ in the sense of Article 53(1) of Directive 2013/36, and whether or not perhaps access to the type of documents sought by the Applicant could have been requested there, is rather futile, since within the framework of that procedure the Applicant could never have received the type of documents he is seeking to access.
63. Second, in terms of the nature of documents sought, both the Applicant and the Banca d’Italia confirmed at the oral hearing that the Applicant’s request for access to documents concerned only and exclusively documents drafted by the Banca d’Italia relating to its supervision of the BNI. The Applicant is thus seeking to gain access to documents drawn up by a public authority in the framework of its supervisory tasks, in order to ascertain whether there might be a substantial basis for a State liability action against that authority.
64. By contrast, in Altmann, the documents the applicants were trying to gain access to were audit reports and internal opinions, reports, correspondence, documents, agreements, contracts, file notes and letters concerning the internal life of the company which had been subjected to a compulsory winding up procedure. (38) The documents at stake were therefore private or company internal documents in the possession of the German supervisory authority, the BaFin.
65. These differences bring sharply to the fore a fundamental and broader question underlying the present case: when adopting Article 53(1) of Directive 2013/36, did the EU legislature intend to completely exclude, by remaining silent on the matter, the possibility of ever granting any administrative access to any documents touching upon professional secrecy at the national level, and also, by the same token, to exclude obtaining any access to such documents by administrative courts in the course of review of any administrative decision refusing access to such documents? Or is this rather the result of a simple legislative omission to include that type of access, which, if coupled with a very restrictive textual interpretation of the third subparagraph of Article 53(1) of Directive 2013/36, leads to somewhat absurd results?
(c) The practical problems of extending Altmann
66. Finally, or in my view rather above all, the extension by analogy of the Altmann approach to the present case, again assuming that that case must be read as requiring that civil or commercial proceedings are pending, would lead to a number of problems from a practical point of view.
67. First, this approach carries a strong whiff of circularity: in order to find out whether it makes any sense to bring an action, a person must first bring an action. A cynic (or a realist, depending on one’s point of view) could perhaps remark that uncertainty is an inherent element in going before a court. However, perhaps in contrast to the necessary limits on the possibility of exactly determining the position of sub-atomic particles at any given time, the application of the (Heisenberg’s) uncertainty principle (39) to judicial proceedings ought to remain the exception. That is even more strongly the case in relation to applicants who have already been exposed to considerable losses and who, in order to find out whether or not any of those losses could potentially be recoverable, are obliged to embark on a uncertain judicial ‘fishing expedition’ with further significant costs attached. Not only does such a result seem quite problematic for the individual applicant, but it also makes little sense for the sound administration of justice at the national level.
68. A further issue is connected to this: in many Member States, pre-trial disclosure is not foreseen by national procedural law in similar types of cases. Thus, an individual, in order to be allowed to request that the court order disclosure of information, would have to file a full damages action. Provided that such an action is not immediately struck out by a national court as manifestly ill founded or even spurious, the applicant may then only hope for the wrong (the illegality) and the causal nexus between the wrong and the alleged damage (which is likely to be the only element of a damages action that the individual would be able to substantiate) to be identified by the court itself.
69. As confirmed by the Italian Government at the oral hearing, there is no pre-trial disclosure in such types of proceedings in Italy. Certainly, the argument could be made that, in the interest of the effective enforcement of EU law based rights, a Member State ought to provide for such disclosure, in order to enable access to an effective remedy and/or to a fair trial, as guaranteed under Article 47 of the Charter.
70. I do not think that that would be a very sensible approach. It would effectively mean that instead of facing the original problem, which is the questionable drafting of Article 53(1) of Directive 2013/36, and solving that problem at its source, namely by a reasonable interpretation of that provision, that problem would become interpretatively frozen and then effectively offloaded onto the judicial systems of the Member States. The fact that arranging for a pre-trial disclosure in most civilian systems of civil procedure is not entirely straightforward was precisely the reason why the EU legislature included rules on disclosure of evidence in Directive 2014/104/EU, (40) in the field of actions for damages for infringements of competition law.
71. By contrast, there are no similar EU rules on disclosure in the field of banking supervision. Persons such as the Applicant in the main proceedings would thus have little chance of acquiring access to documents regarding the tasks carried out by a supervisory authority, unless this is possible under the rules on access to documents. In the present case, this is all the more so since, as I have noted in point 62 of this Opinion, the Applicant could not obtain access to these documents within the insolvency proceedings, through a request to the liquidators responsible for the winding up of the BNI.
72. Second, it ought to be underlined that the notion of ‘confidential information’ can potentially be interpreted very broadly. (41) Extending this broad approach to the interpretation of the third subparagraph of Article 53(1) of Directive 2013/36 could lead to an excessive narrowing down of the exception it provides for. Effectively, any and all information concerning a credit institution would then constitute confidential information.
73. Third, from a systemic point of view, I fail to see a compelling reason for which Article 53(1) of Directive 2013/36 would have to be construed as excluding the possibility for administrative courts carrying out a judicial review of administrative decisions (42) to have access to confidential information of credit institutions which have been declared bankrupt or are being compulsorily wound up, if they need such information for the purpose of conducting their proceedings. The only instances expressly foreseen by this provision are ‘cases covered by criminal law’ and ‘civil or commercial proceedings’. Should this be read as categorically excluding administrative courts carrying out a review of administrative decisions from accessing confidential information?
74. To answer this question, it is important to consider the potential rationale underlying the exceptions in Article 53(1) to the prohibition to disclose confidential information. If, on the one hand, the underlying idea behind these exceptions was that access to confidential information could only be granted when that access is supervised by a judge, then I do not see the reason to exclude access under the control of an administrative court. I can think of a variety of legal claims (43) for which administrative courts need access to such confidential information.
75. If, on the other hand, the idea behind these exceptions was rather to have an expert to decide which information can be disclosed and which information should remain confidential, then I think it is actually the supervisory authorities (in the case at hand, the Banca d’Italia) who are best placed to carry out such an assessment, on account of their expertise and knowledge. Thus, excluding any potential for disclosure under the national legislation on access to documents, while indirectly suggesting that any first-instance civil judge is better placed to order such a disclosure in whatever civil or commercial proceedings that might be pending before him, seems somewhat odd. In any event, the decisions of supervisory authorities in this regard could always be subject to review by an administrative judge.
76. In sum, I must admit that I have considerable intellectual difficulty in embracing the interpretation of the third subparagraph of Article 53(1) of Directive 2013/36 proposed by the Banca d’Italia, the Italian and Portuguese Governments, and the Commission.
4. The (alternative) interpretation of the third subparagraph of Article 53(1) of Directive 2013/36
77. In the light of the abovementioned legal and factual differences between the present case and the Altmann case, and in particular of the practical problems raised by a narrow interpretation of this provision, I suggest a more nuanced reading of the third subparagraph of Article 53(1) of Directive 2013/36. In my view, the possibility to disclose confidential information ‘in civil or commercial proceedings’ in the sense of this provision should be understood as meaning ‘for the purpose of civil or commercial proceedings’.
78. I wish to add three immediate clarifications.
79. First, even with such an interpretation of ‘in civil or commercial proceedings’, it is clear that the other conditions foreseen by the third subparagraph of Article 53(1) would remain applicable. This means that this provision could only be invoked first, where a credit institution has been declared bankrupt or is being compulsorily wound up and second and more importantly, for accessing confidential information which does not concern third parties involved in attempts to rescue that credit institution.
80. Second, it is also quite clear that such an interpretation would certainly not amount to suddenly granting unfettered access to confidential information relating to a credit institution which has been declared bankrupt or which is being compulsorily wound up to any person claiming to have, perhaps one day, the intention to bring a civil or commercial claim. In this regard, ‘for the purpose of civil or commercial proceedings’ essentially means for the purpose of being able to bring civil or commercial proceedings. Logically that can only ever cover persons directly concerned by the bankruptcy or the winding up of the credit institution, such as investors, customers or employees. The circle of those who could be granted access would thus be limited only to persons who prima facie can reasonably allege to have been directly harmed by the bankruptcy or the winding up.
81. Third, and quite importantly, such reading keeps the supervisory authorities in full control over the information that can actually be disclosed. Indeed, the control of both who can have access to confidential information and which confidential information can be accessed would be in the hands of the authorities dealing with access to documents at the national level. In a case such as the one in the main proceedings, the request for disclosure would be addressed, first, to the national supervisory authority. The decision of this authority would naturally be subject, secondly, to a potential review by an administrative court. The logic of controlled disclosure of confidential information, which could be said to underlie Article 53(1) of the directive, would hence be fully preserved. With this dual control, there is certainly little danger of any overreaching consequences: who can have access and what can be accessed would always be determined by the supervisory authority under the control of the competent national judge.
82. Three closing remarks on the broader context in which the Court is called upon to provide the interpretation of one specific provision of Directive 2013/36 are called for.
83. First, there is the need for a reasonable balance between the individual interests at stake. This was already confirmed in the judgment in Hillenius, (44) where the Court noted that national courts must strike a reasonable balance between the different interests that arise when the application of the (predecessor of the) third subparagraph of Article 53(1) is triggered.
84. During the ‘normal’ life of a credit institution, the protection of professional secrecy and confidential information is of paramount importance under Directive 2013/36. Secrecy and confidentiality are indeed the rule. However, as the third subparagraph of Article 53(1) of Directive 2013/36 itself states, once a credit institution ‘has been declared bankrupt or is being compulsorily wound up’, that default rule starts changing.
85. I am of course not implying that the need to protect confidential information simply disappears once the credit institution goes bankrupt or is wound up. There will still be an ongoing need to protect certain confidential information (for instance regarding the know-how of the company, its business practices, and so on), in so far as it may still have a value as an asset which can be realised in the course of the winding up of the entity. (45) Furthermore, as for information concerning third parties involved in attempts to rescue that credit institution, confidentiality is in any case guaranteed by Article 53(1). Lastly, there will also be the need for protection of the public interest in the smooth functioning of the system of prudential supervision.
86. While fully recognising those caveats, what I am actually suggesting is that once a credit institution goes bankrupt, the overall balance of interests starts shifting. The (ongoing) imperative of protecting those interests listed in the previous point will have to be balanced against two additional and newly emerging interests: first, there will be the (private) interests of those who have been harmed by the winding up of the credit institution, especially by allowing them to claim damages. Second, there is also the legitimate (public) interest in knowing what went wrong, in order to establish whether the credit institution went bankrupt simply through its own actions, or whether that could have at least partially been caused by the supervising authority.
87. The fact that all of those legitimate interests need to be accommodated once a credit institution has been declared bankrupt pleads again in favour of a more nuanced reading of Article 53(1) of Directive 2013/36.
88. Second, the two new interests entering the scene once a credit institution has been declared bankrupt are to a great extent likely to be complementary. Enabling access to documents for those who intend to bring an action to protect their private interests will indirectly help, if and when such an action is brought, to protect the public interest in supervising the activities of supervisory authorities. Moreover, that might also be of benefit to the public interest in the overall smooth functioning of the system of prudential supervision. Indeed, guaranteeing a higher level of control over supervisory authorities — even if indirectly, by means of actions brought by private parties before a national court — is likely to lead to the enhancement not only of the accountability of these authorities, but also of the quality of their work. (46)
89. A third and final remark on the very perception of prudential supervision is called for. In general, the Court has confirmed the need to preserve the confidentiality of certain kinds of information, so as not to compromise the transmission of information between the monitored entities and the supervision authorities, with the end goal of protecting the smooth functioning of the system of prudential supervision of credit institutions and investment firms. (47)
90. Again, I emphatically acknowledge the paramount importance of the smooth operation of the system of prudential supervision established by Directive 2013/36. However, the problem with that argument, as also shown in the course of the current proceedings, is that it appears to be invoked at a rather high level of abstraction, with very little actual detail of how exactly that supervision would be put in jeopardy. In a specific case like the present one, I fail to see why that argument should, in practice, amount to immunity for credit institutions, and potentially for the supervisory authorities themselves, from actions brought by an injured party who claims to have suffered damage as a result of the alleged mismanagements of the credit institution and/or of the malfunctioning of the system of prudential supervision. (48) Thus, there is no reason to suggest that a limited disclosure mechanism, available only in case of bankruptcy or winding up and under the control of the supervisory authority and the competent courts, would necessarily put at risk the smooth operation of the system of prudential supervision, in the sense that it would compromise the transmission of confidential information from the supervised entities to the supervisory authority.
91. In conclusion, in spite of the rhetoric that, stressing the importance of confidence and mutual trust, is sometimes more reminiscent of communication between equals, it is perhaps worth recalling that the transmission of information by credit institutions or investment firms to the supervisory authorities under Directive 2013/36 is not a matter of goodwill, but a public law-imposed obligation on undertakings active on certain markets. Thus, even if confidence and mutual trust are certainly to be welcomed and encouraged, they ought not to be pushed so far as to lose sight of the fact that what must be carried out is neither prudential confidence nor prudential trust, but prudential supervision.
V. Conclusion
92. In the light of the foregoing, I propose that the Court reply to the questions raised by the Consiglio di Stato (Council of State, Italy) as follows:
The third subparagraph of Article 53(1) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, should be interpreted in the sense that the possibility to disclose confidential information ‘in civil or commercial proceedings’ applies to a situation where a person seeks, under national rules on access to documents, to obtain access to documents regarding the supervision of a credit institution for the purposes of assessing the possibility of bringing a claim against the competent supervisory authority for damage that that person allegedly suffered as a result of the bankruptcy or winding up of that credit institution.