EN  
ECB -PUBLIC  
 
 OPINION OF THE EUROPEAN CENTRAL BANK  
of 19 December  2014  
on the disclosure of confidential information to a national parliamentary inquiry  
(CON/20 14/89) 
 
Introduction and legal basis  
On 8 December 2014,  the European Central Bank (ECB) received a request f rom the Minister for Finance  
for an opinion on the Central Bank (Amendment) Bill 2014 (hereinafter the ‘draft law’ ). 
The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 
Functioning of the European Union and the third and sixth indents  of Article  2(1) of Council Decision 
98/415/EC1, as the draft law  relates to the Central Bank of Ireland (CBI) and to rules applicable to 
financial institutions insofar as they materially influence the stability of financial institutions and markets . 
In accordance with the first sentence of Article  17.5 of the Rules of Procedure of the European Central 
Bank, the Governing Council has adopted this opinion.  
 
1.  Purpose of the draft law  
1.1 Section 33AK of the Central Bank Act 1942 prohibits current and former CBI officials  or other 
employees2 from disclosing confidential information if such disclosure is prohibited by the Treaty, 
the Statute of the European System of Central Banks and of the European Central Bank  
(hereinafter the ‘Statute of the ESCB ’) or the ‘supervisory EU legal acts ’3. This confidential 
information is specified as : (a) the business of any person or body whether corporate or incorporate 
that has come to the person’s knowledge through the person’s office or employ ment with the CBI, 
or (b) any matter arising in connection with the performance of the functions of the CBI or the 
exercise of its powers.  
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legis lative provisions ( OJ L 189, 3.7.1998, p. 42).  
2   According to section 33AK(1) , this includes , inter alia, the Governor and every former Governor , other current 
and former officials, and ‘ every other officer or employee and every other former officer or employee of the 
[CBI]’ . 
3   Section 33AK(10) defines ‘supervisory EU legal acts’ as including, amongst a number of Union legal acts, 
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity 
of credit insti tutions 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 L 176, 27.6.2013, p. 338) 
(hereinafter the ‘CRD IV’) .  
ECB -PUBLIC  
2 1.2  Subject to this provision, section 33AK also provides that the CBI may disclose confidential 
information in a number of different situations  (hereinafter the ‘disclosure gateways’) . The draft law 
proposes to make an addition to this list of disclosure gateways  when the disclosure is to a Joint 
Committee of the Houses of P arliament that is conducting a specific type of inquiry  for which terms 
of reference resolution were passed by the Lower and U pper Houses of Parliament on 25 and 
26 November 2014. In effect, this gateway  solely relates to disclosures to the Joint Committee of 
Inquiry into the Banking Crisis.  
1.3  The draft law provides that disclosure to the Joint Committee  may only occur after the making of 
certain rules and standing orders ( i.e. parliamentary rules ) which impose a sanction on a member 
of either House of Parliament to whom confidential information is  provided for failure to comply with 
the prov isions o n professional secrecy referred to in section 33AK(6) in respect of that information. 
This appears to refer to the provisions on professional secrecy in the supervisory EU legal acts.  
1.4  According to the consulting authority, motions were pass ed in both H ouses of Parliament  to 
formally empower the Joint Committee to conduct an i nquiry into the b anking crisis on 
26 November 2014.  The Inquiry  intends to begin calling witnesses before the Christmas recess . 
 
2. Disclosure of confidential information  to the Inquiry  
2.1 The ECB understands that once the draft law is enacted, section 33AK will effectively provide that 
the CBI may disclose confidential information to the Inquiry in certain circumstances , subjec t to the 
obligation on current and former  CBI officials and other employees not to disclose confidential 
information concerning the matters referred to in paragraph 1.1 above, if such is prohibited by the 
Treaty, the Statute of the ESCB  or the supervisory EU legal acts.  
 This proviso on disclosure does  not clarify that , in accordance with Article 59(2) of the C RD IV , 
specific  conditions , rather than prohibitions,  also apply  when disclosing  confidential information 
relating to the prudential supervision of institutions to parliamentary enquiry committees in the 
relevant Member State: ( a) the parliamentary enquiry committee must have a ‘precise mandate’  
under national law ; (b) the information must be ‘strictly necessary’  for fulfilling that  mandate;  
(c) persons with access to the information are subject to professional secrecy requirements under 
national law at least equivalent to those referred to in Article 53(1) of the CRD IV;  (d) where the 
information originates in another Member State,  that it is not disc losed without the express 
agreement of the competent authorities which have disclosed it and, solely for the purposes for which those authorities gave their agreement; and (e) to the extent that the disclosure of 
information relating to prudential  supervis ion involves processing of personal data, any processing  
by the parliamentary enquiry committee must comply with national law transposing 
Directive  95/46/EC of the European Parliament and of the Council
4. These conditions have to be 
                                                 
4  Directive 95/46/EC of the Eur opean Parliament and of the Council of 24 October 1995 on the protection of 
individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281,  
23.11.1995, p. 31).  
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3 respected and implement ed when disclosing  confidential information to parliamentary enquiry 
committees . 
 Furthermore, under Directive 2014/59/EU of the European Parliament and of the Council5 (the 
Bank Recovery and Resolution Directive, hereinafter the ‘BRRD’) the sharing of confidential 
information on resolution (actions, tools, plans etc.) with parliamentary enquiry committees is not 
wholly unrestricted. Article 84(5) of the BRRD provides that Member States may authorise the 
exchange of information with parliamentary enquiry committees in their Member State ‘under appropriate conditions’. Member States should take into account the general purpose behind business secrecy in this context as expressed, for example, in recital 8 6 of the BRRD which states 
that ‘…  therefore [it is] necessary to ensure that there are appropriate mechanisms for maintaining 
the confidentiality of such information, such as the content and details of recovery and resolution plans and the result of any assessment carried out in that context’. This is relevant in view of the fact that the bulk of the BRRD’s provisions are to be implemented by Member States by 1 January  2015.  
2.3 The ECB a cknowledges that the disclosure gateway proposed by the draft law is subject to the 
condition that disclosure to the Inquiry  may only occur  after the making of parliamentary rules 
which subject a member of the P arliament to sanction in the event that the member is provided with 
confidential information and fails to comply with the provisions on professional secrecy in the super visory EU legal acts
6. Nevertheless, the particular elements  of such professional secrecy  
requirements  within the supervisory EU legal acts are not further elaborated and it is unclear as to 
how the parliamentary rules will clarify these  obligations of professional secrecy for the members of 
Parliament.  
2.4 Furthermore, section 33AK(6) only refers to the provisions on professional secrecy in the 
supervisory EU legal acts and does not refer to the obligations under Union law in general, 
including the Treaty , the Statute of the ESCB  and the Rules of Procedure of the European Central 
Bank7. In this regard,  the scope of section 33AK(6) should be broadened to  comply  with 
Article  37.2 of the Statute of the ESCB , according to which persons having access to data cov ered 
by Union  legislation imposing an obligation of secrecy  shall be subject to such legislation.  To the  
extent  that such Union legislation requires breaches of Union law , in particular breaches of 
professional secrecy obligations,  to be subject to sanction  in the Member States , any such  
sanctions should apply to members of Parliament having access to the confidential information.  
 
                                                 
5   Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework  
 for the recovery and resolution of credit institutions and investment firms and amending Council Directive 
82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European 
Parliament and of the Council (OJ L 173, 12.6.2014, p. 190).  
6  See the amendment proposed by section 1(b) of the draft law and section 33AK(6) of  the Act of 1942.  
7  Decision ECB/2004/2 of 19 February 2004 adopting the Rules of Procedure of the European Central Bank  
 (OJ L 80, 18.3.2004, p. 33).  
ECB -PUBLIC  
4 3. Source of the amendment  
Subsection (6A)  of section 33AK, as proposed to be inserted into the Central Bank Act 1942, is a 
provision addressed to  members of Parliament rather than the CBI. It must  be ensured that members of 
Parliament are bound by  the parliamentary rules to be created under this provision, in accordance with 
the Irish legal system , and that members are aware of the content  of such rules . 
 
4.  Parliamentary privilege  
The ECB understands that , according to Article 15.13 of the Constitution of Ireland, the members of both 
Houses of Parliament are not, in respect of any utterance in either House, amenable to any cour t or any 
authority other than the House itself. Sufficient safeguards must be in place to ensure that the sanctions 
and protections proposed by the draft law are valid and enforceable in light of this constitutional 
requirement.  
 
This opinion will be publi shed on the ECB’s website.  
 
 
Done at Frankfurt am Main, 19 December 2014.  
 
[signed]   
The President of the ECB  
Mario DRAGHI