# C_2017063EN.01001301.xml

| 27.2.2017 | EN | Official Journal of the European Union | C 63/13 |
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27.2.2017

EN

Official Journal of the European Union

C 63/13

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Request for a preliminary ruling from the Consiglio di Stato — Italia lodged on 23 November 2016 — Enzo Buccioni v Banca d’Italia

(Case C-594/16)

(2017/C 063/19)

Language of the case: Italian

Referring court

Referring court

Consiglio di Stato

Parties to the main proceedings

Parties to the main proceedings

Applicant: Enzo Buccioni

Applicant:

Defendant: Banca d’Italia

Defendant:

Questions referred

Questions referred

| 1. | 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? |
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1.

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?

| 2. | As a result of this, must Article 22(2) and Article 27(1) of Regulation (EU) No 1024/2013 (1) of the Council of 15 October 2010, 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? |
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2.

As a result of this, must Article 22(2) and Article 27(1) of Regulation (EU) No 1024/2013 (1) of the Council of 15 October 2010, 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?

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| 3. | Consequently, must not Article 53 of Directive 2013/36/EU (2) 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? |
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3.

Consequently, must not Article 53 of Directive 2013/36/EU (2) 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?

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(1)  OJ 2013 L 287, p. 63.

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(2)  OJ 2013 L 176, p. 338.

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