EN  ECB-PUBLIC 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 23 March 2021 
on the creation of a transparency framework for contracts  
and related documents involving the use of public funds 
(CON/2021/13) 
 
Introduction and legal basis 
On 5 February 2021, the European Central Bank (ECB) received a request from the Portuguese Assembly 
of the Republic for an opinion on two draft laws creating a tra nsparency framework for contracts and 
related documents involving t he use of public funds (hereinafte r the ‘draft laws’)1. 
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 Article 2(1) of Council D ecision 98/415/EC2, as the draft laws relate 
to the specific tasks conferred upon the ECB concerning the pru dential supervision of credit institutions 
under Article 127(6) of the Treaty.  In accordance with the firs t sentence of Article 17.5 of the Rules of 
Procedure of the European Central Bank, the Governing Council h as adopted this opinion. 
 
1. Purpose of the draft laws 
1.1 According to the explanatory memoranda accompanying the dra ft laws, their main  objective is to 
reinforce the transparency and scrutiny of operations which inv olve the use of public funds by 
allowing the Assembly of the Republic to declassify certain con tracts originally classified as 
confidential concluded by the St ate or other public entities wh ich involve the use of public funds in 
several sectors if they are subject to confidentiality safeguar ds. The purpose is to increase 
transparency and allow these documents to be publicly available  given their impact on public 
finances. 
1.2 Both draft laws apply to contracts and agreements concluded  by the State, or by any entities 
included within the scope of the State Budget, which involve th e use of public funds in specific 
economic sectors, including the banking and financial sector. O ne of the draft laws expressly 
mentions that all operations involving the use of public funds in the context of the application of 
resolution measures, nationalisation, liquidation or capitalisa tion are included within this scope of 
application. 
 
1  Projecto de Lei n.º 606/XIV/2ª –  Aprova o regime jurídico da d esclassificação de contratos ou outros documentos que 
comprometem o Estado ou outras entidades integradas no perímetr o orçamental em sectores fundamentais; Projecto 
de Lei n.º 634/XIV/2ª – Aprova um regime jurídico de transparên cia dos contratos, acordos e outros documentos 
relativos a operações que determinem a utilização ou disponibil ização de fundos públicos relativamente a entidades 
pertencentes a sectores estratégicos. 
2  Council Decision 98/415/EC of 29 June 1998 on the consultation  of the European Central Ba nk by national authorities 
regarding draft legislative prov isions (OJ L 189, 3.7.1998, p. 42). 
ECB-PUBLIC  
2 1.3 According to the draft laws, the Assembly of the Republic w ill be authorised to declassify such 
contracts stating the reasons for the declassification and weig hing the reasons that justify 
confidentiality against taxpayer ’s right of information. 
1.4 Under both draft laws not only the contracts themselves, bu t also all documents and information 
considered to be connected or rel ated to such contracts, are su bject to the declassification 
decision by the Assembly of the Republic. Furthermore, the disc losure might also include the 
names of entities or individuals who have originated losses at the entity that is the beneficiary of 
public funds. 
1.5 Non-compliance with the obligation to disclose after a deci sion to declassify is adopted by the 
Assembly of the Republic shall be subject to criminal liability . 
1.6 Both draft laws provide that  they will prevail over any oth er legal framework providing for banking 
or commercial confidentiality safeguards. 
1.7 Finally, both draft laws expressly provide that they are to  be applied not only to new contracts 
concluded by the State, or by the other public entities include d within their scope of application, but 
also to all pre-existing contracts which have involved the use of public funds. One of the draft laws 
establishes a limitation for contracts which have been conclude d more than 14 years ago, which 
would remain out of the scope o f application of that draft law.  
 
2. Observations  
2.1 National legislation should be compatible with the obligati on to maintain professional secrecy in 
respect of confidential prudentia l supervisory information unde r Union law, in particular Article 53 of 
Directive 2013/36/EU of the European Parliament and of the Coun cil3. Disclosure of such 
confidential information can only be permitted in the cases spe cified in Article 53(1) of Directive 
2013/36/EU. 
2.2 The ECB takes particular note that Banco de Portugal (‘BdP’ ), as the national competent authority 
responsible for the prudential s upervision of credit institutio ns, is not included among the public 
entities to which the draft laws apply. However, while contract s concluded by the BdP as such 
would not be subject to public disclosure, contracts concluded with credit institutions by other 
public authorities, such as the Portuguese Resolution Fund, are  included within the scope of 
application of the draft laws, as well as any contracts conclud ed between credit institutions and 
other public entities involving the use of public funds. In add ition, both draft laws provide that all 
documents and information considered to be connected or related  to such contracts are also 
subject to public disclosure. This means that these other docum ents and information, even if they 
do not form part of the contrac t itself, can still be subject t o declassification and public disclosure.  
2.3 The ECB understands that, because the BdP would not be subj ect to the draft laws, such 
documents or information would not include prudential superviso ry documents in the possession of 
the authorities responsible for the prudential supervision of c redit institutions, including the BdP 
and the ECB, even if those documen ts were related to contracts within the scope of application of 
 
3  Directive 2013/36/EU of the European Parliament and of the Co uncil of 26 June 2013 on acce ss to the activity of credit 
institutions and the prudential s upervision of credit instituti ons and investment firms, amending Directive 2002/87/EC 
and repealing Directives 2006/48 /EC and 2006/49/EC (OJ L 176, 2 7.6.2013, p. 338). 
ECB-PUBLIC  
3 the draft laws. Any prudential supervisory documents and inform ation would remain subject to 
confidentiality protections, as both the BdP and the ECB are – and will remain – outside the scope 
of the draft laws. Moreover, the documents or information to be  disclosed under the draft laws due 
to their connection to the contracts involving the use of publi c funds, even if they are not formally 
prudential supervisory document s, could not include confidentia l supervisory information, since the 
public disclosure of such document s or information would clearl y undermine the professional 
secrecy protected by Article 53 of Directive 2013/36/EU. Theref ore, the public disclosure of such 
documents or information would inevitably contravene Article 53  of Directive 2013/36/EU. Any 
confidential supervisory information contained in such document s would therefore have to be 
redacted. 
2.4 Both draft laws exclude from their scope of application oth er special frameworks, which remain 
applicable. One of the draft laws also excludes matters subject  to State or judicial secrecy, which 
are not subject to declassificat ion under the draft laws. Howev er, both draft laws ex plicitly state that 
they prevail over any other legal framework providing for banki ng or commercial confidentiality 
safeguards. In order to establis h a framework which safeguards both confidential information and 
the legitimate interest of the public in accessing the informat ion, as well as the primacy of Union 
law over national law, the ECB understands that it would not be  possible to declassify confidential 
supervisory documents and information under the draft laws, as such an interpretation would not 
be compatible with the protecti on of confidential supervisory i nformation under Directive 
2013/36/EU. 
2.5 Regarding the provisions for the disclosure of operations i nvolving the use of public funds in the 
context of resolution, Directi ve 2014/59/EU of the European Par liament and of the Council4 confers 
powers not only on resolution aut horities but also on competent  supervisory authorities. Notably, 
Directive 2014/59/EU contains the only legal basis for the comp etent supervisory authorities’ 
powers in relation to recovery planning and early intervention measures5, with respect to which 
competent supervisory authorities have a leading role. Both of these powers relate to prudential 
supervisory tasks, as recognis ed in Council Regulation (EU) No 1024/20136. In addition, while not 
in the lead, competent supervisory authorities are consulted by  resolution authorities or cooperate 
with them in several other processes. In this regard, the ECB w ould like to recall that Directive 
2014/59/EU also establishes conf identiality obligations as a ne cessary counterpart reinforcing the 
professional secrecy obligations  in Directive 2013/36/EU. With regard to all the processes where 
competent authorities intervene (whether led by the competent s upervisory authorities or by the 
resolution authorities) competent supervisory authorities have various obligations to disclose 
confidential supervisory informa tion to resolution authorities (and in some cases to some other 
authorities mentioned). On their part, resolution authorities h ave even broader duties to disclose 
confidential information to other authorities. In particular, t he ECB notes that the scope of the 
 
4  Directive 2014/59/EU of the European Parliament and of the Co uncil of 15 May 2014 establishing a framework for the 
recovery and resolution of credi t institutions and investment f irms 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 648/2 012, of the European Parliament and of the 
Council (OJ L 173 , 12.6.2014, p. 190). 
5  See Articles 5 to 9 and 27 to  30 of Directive 2014/59/EU. 
6  See Article 4(1)(i) of Council Regulation (EU) No 1024/2013 o f 15 October 2013 conferring specific tasks on the 
European Central Bank concerning policies relating to the prude ntial supervision of credit institutions (OJ L 287, 
29.10.2013, p. 63). 
ECB-PUBLIC  
4 confidentiality obligation of Art icle 84 of Directive 2014/59/E U applies to resolution authorities and 
other public institutions and private individuals, such as mini stries, deposit guarantee funds or 
acquirers participating in compet itive processes, some of which  would potentially be compelled to 
disclose information under the draft laws. Since the competent supervisory authorities are an 
important source of information for resolution authorities, whi ch only collect information directly 
from credit institutions to the extent that it is not yet avail able at the competent authorities, in 
various situations resolution authorities may be required to di sclose onward to another authority 
confidential information collected by and received from the com petent supervisory authority. From 
a prudential supervisory perspect ive, care must be taken to ens ure that the public disclosure of 
such documents or information, in potential contravention of Ar ticle 84 of Directive 2014/59/EU, 
does not also lead to the disclosure of confidential supervisor y information in breach of the 
professional secrecy protected by Article 53 of Directive 2013/ 36/EU. Any confidential supervisory 
information contained in such do cuments would therefore have to  be redacted. 
2.6 According to the draft laws, the declassification decision by the Assembly of the Republic might 
also include the disclosure of the names of entities or individ uals who have originated losses at an 
entity that is a beneficiary of public funds. One of the draft laws also adds that the identification of 
shareholders and members of the management body of entities who  have originated those losses 
would also be subject to such disclosure. Such information may constitute confidential supervisory 
information which must remain subject to professional secrecy r equirements in order to comply 
with the confidentiality rules established in Directive 2013/36 /EU.  
2.7 Finally, it is important to consider that any unintended di sclosure of confidential supervisory 
information which might be facilitated under the draft laws cou ld also have a negative impact on 
the possibility for pr udential supervisory authorities to excha nge information with other authorities, 
by limiting the amount of inform ation that supervisory authorit ies can disclose to other entities. 
According to Articles 56, 57 and 59 of Directive 2013/36/EU, th e competent supervisory authority 
can exchange information with ot her authorities, such as nation al market authorities, oversight 
bodies and the central government. In all of these cases, the e xchange of information can only 
occur if the information disclos ed is subject to secrecy requir ements at least equivalent to those 
referred to in Article 53 of Directive 2013/36/EU. This means t hat if the information in question to 
be shared by the competent supervisory authority is considered to be connected or related to a 
contract that could be made public according to the draft laws,  then the competent supervisory 
authority could no longer disclose such information to the enti ties referred to in Directive 
2013/36/EU. Currently, i n the absence of the draft laws, such i nformation could be exchanged.  
 This opinion will be published on EUR-Lex. 
 
Done at Frankfurt am Main, 23 March 2021. 
 [signed]  The President of the ECB Christine LAGARDE