# C_2021128EN.01001901.xml

| 12.4.2021 | EN | Official Journal of the European Union | C 128/19 |
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12.4.2021

EN

Official Journal of the European Union

C 128/19

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Request for a preliminary ruling from the Ustavno sodišče Republike Slovenije (Slovenia) lodged on 28 January 2021 — Banka Slovenije v Državni zbor Republike Slovenije

(Case C-45/21)

(2021/C 128/25)

Language of the case: Slovenian

Referring court

Ustavno sodišče Republike Slovenije

Parties to the main proceedings

Applicant: Banka Slovenije

Other party to the proceedings: Državni zbor Republike Slovenije

Questions referred

| (a) | Are Article 123 of the Treaty on the Functioning of the European Union and Article 21 of Protocol No 4 to be interpreted as prohibiting a national central bank that is a member of the European System of Central Banks from incurring liability to pay compensation from its own resources to former holders of financial instruments that have been cancelled by decision of the central bank in the exercise of its own statutory power to adopt extraordinary measures in the public interest in order to avert threats to the stability of the financial system, in the event that it transpires in the course of subsequent legal proceedings that, in the context of the cancellation of financial instruments, there was a failure to observe the principle that no holder of a financial instrument should, as a result of an extraordinary measure, be placed in a worse position than he would have been in had the measure not been adopted, where, in that context, the national central bank is liable (i) for loss that was foreseeable from the facts and circumstances obtaining at the time of the central bank’s decision and of which the bank was aware or ought to have been aware, and (ii) for loss resulting from the conduct of individuals who acted in the exercise of such powers of the central bank and on instructions from it where, in that context, having regard to the facts and circumstances of which they were aware or ought to have been aware in accordance with the powers conferred, those individuals did not act with the diligence of a prudent expert? |
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(a)

Are Article 123 of the Treaty on the Functioning of the European Union and Article 21 of Protocol No 4 to be interpreted as prohibiting a national central bank that is a member of the European System of Central Banks from incurring liability to pay compensation from its own resources to former holders of financial instruments that have been cancelled by decision of the central bank in the exercise of its own statutory power to adopt extraordinary measures in the public interest in order to avert threats to the stability of the financial system, in the event that it transpires in the course of subsequent legal proceedings that, in the context of the cancellation of financial instruments, there was a failure to observe the principle that no holder of a financial instrument should, as a result of an extraordinary measure, be placed in a worse position than he would have been in had the measure not been adopted, where, in that context, the national central bank is liable (i) for loss that was foreseeable from the facts and circumstances obtaining at the time of the central bank’s decision and of which the bank was aware or ought to have been aware, and (ii) for loss resulting from the conduct of individuals who acted in the exercise of such powers of the central bank and on instructions from it where, in that context, having regard to the facts and circumstances of which they were aware or ought to have been aware in accordance with the powers conferred, those individuals did not act with the diligence of a prudent expert?

| (b) | Are Article 123 of the Treaty on the Functioning of the European Union and Article 21 of Protocol No 4 to be interpreted as prohibiting a national central bank that is a member of the European System of Central Banks from paying special monetary compensation from its own resources to some of the former holders of financial instruments that have been cancelled (in accordance with the criterion of the asset situation) on account of the cancellation of instruments decided upon by the bank in the exercise of its own statutory power to adopt extraordinary measures in the public interest in order to avert threats to the stability of the financial system, where, in that context, entitlement to receive compensation arises from the mere fact of cancellation of the financial instrument, regardless of whether or not there has been a breach of the principle that no holder of a financial instrument should, as a result of an extraordinary measure, be placed in a worse position than he would have been in had that measure not been adopted? |
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(b)

Are Article 123 of the Treaty on the Functioning of the European Union and Article 21 of Protocol No 4 to be interpreted as prohibiting a national central bank that is a member of the European System of Central Banks from paying special monetary compensation from its own resources to some of the former holders of financial instruments that have been cancelled (in accordance with the criterion of the asset situation) on account of the cancellation of instruments decided upon by the bank in the exercise of its own statutory power to adopt extraordinary measures in the public interest in order to avert threats to the stability of the financial system, where, in that context, entitlement to receive compensation arises from the mere fact of cancellation of the financial instrument, regardless of whether or not there has been a breach of the principle that no holder of a financial instrument should, as a result of an extraordinary measure, be placed in a worse position than he would have been in had that measure not been adopted?

| (c) | Are Article 130 of the Treaty on the Functioning of the European Union and Article 7 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank to be interpreted as meaning that a national central bank cannot be required to pay compensation for losses arising as a result of the exercise of its statutory powers in such sums as might impair the bank’s ability to perform its own tasks effectively? In that context, are the legal conditions under which such liability is incurred relevant to establishing whether the principle of the financial independence of the national central bank has been infringed? |
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(c)

Are Article 130 of the Treaty on the Functioning of the European Union and Article 7 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank to be interpreted as meaning that a national central bank cannot be required to pay compensation for losses arising as a result of the exercise of its statutory powers in such sums as might impair the bank’s ability to perform its own tasks effectively? In that context, are the legal conditions under which such liability is incurred relevant to establishing whether the principle of the financial independence of the national central bank has been infringed?

| (d) | Are Articles 53 to 62 of Directive 2013/36/EU (1) or Articles 44 to 52 of Directive 2006/48/EC, (2) which protect the confidentiality of confidential information received or generated in the context of the prudential supervision of banks, to be interpreted in the sense that those two directives also protect the confidentiality of information received or generated in the context of the implementation of measures the purpose of which was to rescue banks in order to ensure the stability of the financial system, where the threats to the solvency and liquidity of the banks could not be eliminated by means of normal prudential supervision measures and where such measures were regarded as reorganisation measures within the meaning of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions? (3) |
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(d)

Are Articles 53 to 62 of Directive 2013/36/EU (1) or Articles 44 to 52 of Directive 2006/48/EC, (2) which protect the confidentiality of confidential information received or generated in the context of the prudential supervision of banks, to be interpreted in the sense that those two directives also protect the confidentiality of information received or generated in the context of the implementation of measures the purpose of which was to rescue banks in order to ensure the stability of the financial system, where the threats to the solvency and liquidity of the banks could not be eliminated by means of normal prudential supervision measures and where such measures were regarded as reorganisation measures within the meaning of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions? (3)

| (e) | In the event that Question (d) is answered in the affirmative, are Articles 53 to 62 of Directive 2013/36/EU or Articles 44 to 52 of Directive 2006/48/EC, which concern the protection of confidential information received or generated in the context of the prudential supervision of banks, to be interpreted as meaning that, for the purposes of the protection which they afford, the later directive, Directive 2013/36/EU, is relevant even with regard to information received or generated during the period when Directive 2006/48/EC was applicable, where such information is to be disclosed during the period when Directive 2013/36/EU is applicable? |
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(e)

In the event that Question (d) is answered in the affirmative, are Articles 53 to 62 of Directive 2013/36/EU or Articles 44 to 52 of Directive 2006/48/EC, which concern the protection of confidential information received or generated in the context of the prudential supervision of banks, to be interpreted as meaning that, for the purposes of the protection which they afford, the later directive, Directive 2013/36/EU, is relevant even with regard to information received or generated during the period when Directive 2006/48/EC was applicable, where such information is to be disclosed during the period when Directive 2013/36/EU is applicable?

| (f) | In the event that Question (d) is answered in the affirmative, is the first subparagraph of Article 53(1) of Directive 2013/36/EU (or the first subparagraph of Article 44(1) of Directive 2006/48/EC, depending on the answer to the preceding question) to be interpreted as meaning that information held by a national central bank in its capacity as supervisory body that has become public information subsequently to the time of its generation, or information which could constitute a professional secret but which is five or more years old and which, on account of the passage of time, is in principle regarded as historical information that is no longer confidential, is no longer confidential information to which the obligation of professional secrecy applies? In the case of historical information five or more years old, does the maintenance of confidentiality depend on whether confidentiality can be justified on grounds other than the commercial situation of the bank under supervision or that of other undertakings? |
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(f)

In the event that Question (d) is answered in the affirmative, is the first subparagraph of Article 53(1) of Directive 2013/36/EU (or the first subparagraph of Article 44(1) of Directive 2006/48/EC, depending on the answer to the preceding question) to be interpreted as meaning that information held by a national central bank in its capacity as supervisory body that has become public information subsequently to the time of its generation, or information which could constitute a professional secret but which is five or more years old and which, on account of the passage of time, is in principle regarded as historical information that is no longer confidential, is no longer confidential information to which the obligation of professional secrecy applies? In the case of historical information five or more years old, does the maintenance of confidentiality depend on whether confidentiality can be justified on grounds other than the commercial situation of the bank under supervision or that of other undertakings?

| (g) | In the event that Question (d) is answered in the affirmative, is the third subparagraph of Article 53(1) of Directive 2013/36/EU [or the third subparagraph of Article 44(1) of Directive 2006/48/EC, depending on the answer to Question (e)] to be interpreted as meaning that confidential documents which do not concern third parties involved in attempts to rescue a credit institution but which are legally relevant for the purposes of the court’s decision in a civil damages action against the competent prudential supervisory body should automatically be disclosed, even prior to the commencement of legal proceedings, to all potential plaintiffs and their representatives, without there first being established a specific procedure for determining the lawfulness of the disclosure of each individual document to each individual or entity having standing, and without there first being any weighing of the interests at stake in each specific case? Does that apply even in the case of information concerning credit institutions which have not been declared bankrupt or are not being compulsorily wound up but which have received assistance from the State in the procedure in which financial instruments held by shareholders or subordinated creditors of the credit institution were cancelled? |
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(g)

In the event that Question (d) is answered in the affirmative, is the third subparagraph of Article 53(1) of Directive 2013/36/EU [or the third subparagraph of Article 44(1) of Directive 2006/48/EC, depending on the answer to Question (e)] to be interpreted as meaning that confidential documents which do not concern third parties involved in attempts to rescue a credit institution but which are legally relevant for the purposes of the court’s decision in a civil damages action against the competent prudential supervisory body should automatically be disclosed, even prior to the commencement of legal proceedings, to all potential plaintiffs and their representatives, without there first being established a specific procedure for determining the lawfulness of the disclosure of each individual document to each individual or entity having standing, and without there first being any weighing of the interests at stake in each specific case? Does that apply even in the case of information concerning credit institutions which have not been declared bankrupt or are not being compulsorily wound up but which have received assistance from the State in the procedure in which financial instruments held by shareholders or subordinated creditors of the credit institution were cancelled?

| (h) | In the event that Question (d) is answered in the affirmative, is the second subparagraph of Article 53(1) of Directive 2013/36/EU [or the second subparagraph of Article 44(1) of Directive 2006/48/EC, depending on the answer to Question (e)] to be interpreted as permitting the publication on the Internet, in a manner accessible to all, of confidential documents or summaries of confidential documents which do not concern third parties involved in attempts to rescue a credit institution but which are legally relevant for the purposes of the court’s decision in a civil damages action against the competent prudential supervisory body, in the event that those documents contain information concerning credit institutions which have not been declared bankrupt or are not being compulsorily wound up but which have received help from the State in a procedure in which financial instruments held by shareholders or subordinated creditors of the credit institution were cancelled, where provision is made for the redacting of all confidential information prior to publication on the Internet? |
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(h)

In the event that Question (d) is answered in the affirmative, is the second subparagraph of Article 53(1) of Directive 2013/36/EU [or the second subparagraph of Article 44(1) of Directive 2006/48/EC, depending on the answer to Question (e)] to be interpreted as permitting the publication on the Internet, in a manner accessible to all, of confidential documents or summaries of confidential documents which do not concern third parties involved in attempts to rescue a credit institution but which are legally relevant for the purposes of the court’s decision in a civil damages action against the competent prudential supervisory body, in the event that those documents contain information concerning credit institutions which have not been declared bankrupt or are not being compulsorily wound up but which have received help from the State in a procedure in which financial instruments held by shareholders or subordinated creditors of the credit institution were cancelled, where provision is made for the redacting of all confidential information prior to publication on the Internet?

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

(2)  Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (OJ 2006 L 177, p. 1).

(3)  OJ 2001 L 125, p. 15.

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