EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 4 September  2019  
on freedom of information  
(CON/20 19/31) 
 
Introduction and legal basis  
On 5 July  2019 the European Central Bank (ECB) received a request from the Dutch  Minister for the 
Interior and Kingdom Relations  for an opinion on a draft l aw on open government (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 indent  of Article  2(1) of Council Decision 98/415/EC1, as 
the draft law relates to De Nederlandsche Bank (DNB)  and the tasks concerning the prudential 
supervision of credit institutions conferred upon the ECB  pursuant to Article 127(6) of the Treaty . 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 The draft law aims at ensuring a transparent and publicly accountable government. T o achieve this, 
public bodies must  publish certain information on their own initiative. Any member of the public may 
request certain information to be made public. In addition, public bodies must  take certain 
measures to improve their digital information management systems to make them more accessible.  
DNB  is deemed to be a public body  under the draft law . 
1.2 The draft law exempts certain information from the requirement to publish or to provide access to 
members of the public (hereinafter the ‘exempt records ’). The exempt records that might be 
relevant from the perspective of DNB  include records relating to international relations , the financial 
and economic interests of the State  or public bodies , investigative functions of public bodies , 
privacy related data and deliberations  of public bodies . Many of these records would only be 
partially exempt as information can only be withheld subject to an overall assessment that the  
disclosure would not be in the public interest.  
1.3 Lastly, t he draft law does not supersede specific, existing legal provisions  dealing with 
confidentiality . The annex to the draft law lists the relevant legal provisions dealing with 
confidentiality which prevail  over provisions of the draft law.  The annex refers , inter alia,  to Article 
1:42 and  paragraph 1.5.1 o f the Law on f inancial supervision2 and Article 20 of the Law of 1998 on 
                                                 
1   Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions ( OJ L 189, 3.7.1998, p. 42) . 
2       Wet op het financieel toezicht  
ECB -PUBLIC  
2 banking3.  
Article 1:42 and paragraph 1.5.1 of the Law on f inancial supervision prohibit  the use or disclos ure 
of confidential information obtained under that  Law for purposes other than those described in the  
Law. Exemptions to that restriction are listed in those same provisions.  The term ‘confidential 
information’ is not defined in the Law on financial supervision itself, but t he explanatory note to th at 
Law states that this term ha s the same meaning as in Directive 2013/36/EU of the European 
Parliament and of the Council ( CRD IV )4. 
Article 20 of the Law on banking, as amended by the draft law, provides that to the extent that this 
Law provides for the performance of the acts aiming to achieve the objectives and tasks referred to 
in Article 2(1), (2) and (3) and Article 3 of this Law, which cover generally the objectives and tasks 
of DNB within the framework of the European System of Central Banks (ESCB), those who perform 
any task by  virtue of the application of this Law or decrees based on it must refrain from using or 
disclosing data or information received in the performance of that task in any way that goes beyond 
or is other than what is  required for the performance of their task  or required by this Law .  
 
2. General observations   
2.1 The E CB generally welcomes the draft law , which is aimed at enhancing the legitimacy and 
accountability of, amongst others, DNB by providing for access to certain information5. 
2.2 The ECB also welcomes that ce rtain records kept by  DNB are exempt , including all confidential 
information that DNB  holds  in its capacity both as a national central bank  (NCB) within the ESCB 
and as a national competent authority (NCA) within the framework of the Single Supervisory 
Mechanism for the prudential supervision of credit institutions . This approach aims to protect 
certain public and private interests. The categories of exempt records are intended to ensure a 
balance between the right of access for the general public to DNB’s records and the need for the 
confidentiality of certain DNB records6. In this respect, t he provisions of the draft law establish a 
regime that is compatible with the Union  legal framework on transparency , without  contraven ing 
professional secrecy obligatio ns under Union  law. It is recommended however, in view of the 
desirable balance between transparency and professional secrecy, to have an explicit provision in 
the Law on banking providing for the primacy of professional secrecy in certain cases . 
 
3. Specific observations   
ECB public access regime  
3.1 Article 37 of the Statute of the European System of Central Banks and of the European Central 
Bank (hereinafter the ‘Statute  of the ESCB ’) establishes rules on professional secrecy  for the 
ESCB and ECB . In addition,  the ECB has established a public access regime. Due to t he primacy 
                                                 
3       Bankwet  
4  Directive 2013/ 36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activitiy of 
credit institutions and the prudential supervision of credit institutions and investment firms, amen ding Directive 
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338). The  European 
Court of Justice has since then further interpreted the meaning of the t erm ‘confidential information’  in its judgment of  
19 June 2018,  Baumeister  C-15/16, ECLI:EU:C:2018:464.  
5   See paragraph 2.1 of Opinion CON/2012/76.  All ECB opinions are published on the ECB ’s website at 
www.ecb.europa.eu.  
6   See paragraph 2.2 of Opinion CON/2012/76.   
ECB -PUBLIC  
3 of Union law, those provisions prevail over any  provisions on professional secrecy or public access  
adopted at the level of the Member States . In particular , Article 5 of Decision ECB/2004/3 of the 
European Central Bank7 provides that documents that are in the possession of an NCB and have 
been drawn up by the ECB as well as documents originating from the E uropean Monetary Institute  
or the Committee of Governors  may be disclosed by the NCB only subject to prior consultation of 
the ECB concerning the scope of access, unless it is clear that the document will or will not be 
disclosed. Alternatively , the NCB may refer the request to the ECB8. Furthermore, Article 2 of 
Decision  (EU) 2015/811 of the European Central Bank  (ECB/2015/16)9 provides that where an 
NCA receives  a request for an ECB document in its possession, the NCA shall consult the ECB on 
the scope of access to be granted, prior to taking a decision on disclosure, unless it is clear t hat the 
document will or will not be disclosed10. Against this background, t he ECB suggests to ensure the 
explicit compatibility  of the draft law with Article 37 of the Statute of the ESCB and the public 
access regime of the ECB11. In this respect i t could be usefully clarified in the text of the draft law 
that any obligation to provide information is without prejudice to professional secrecy obligations 
under the Statute  of the ESCB  and the public access regime of the ECB . 
Legal certainty  
3.2 The draft law does not contain any transitional arrangement, meaning that the draft law has 
retroactive effect. DNB may therefore be faced with public access requests which require DNB to 
provide information that DNB received long before th e draft law enters  into force. Such  information 
may include information that was provided to DNB specifically relying on the general exemption for 
public access which DNB has under the current regime (and not under the draft law). The 
obligation under the draft law to provide such informati on to the general public could undermine the 
principle of legal certainty and the justified confidence of, for instance, market participant s, which 
may have provide d that information to DNB relying  on the information remaining  confidential.  For 
the sake of  legal certainty it could be usefully clarified that the draft law would only relate to 
information that DNB obtains  after the draft law comes into force and effect.  
 
This opinion will be published on the ECB’s website.  
 
Done at Frankfurt am Main, 4 Sept ember 2019.  
 
[signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
7  Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents    
(ECB/2004/3) (OJ L 80, 18.3. 2004, p. 42).  
8   See Article 5 of Decision (ECB/2004/3) . 
9          Decision (EU) 2015/811 of the European Central Bank of 27 March 2015 on public access to European Central Bank  
documents in the possession of the national competent authorities (ECB/2015/16) (OJ L 128, 23.5.2015, p. 27).  
10   See Decision (EU) 2015/16 of the European Central Bank of 27 March 2015 on public access to European Central 
Bank documents i n the possession of the national competent authorities (ECB/2015/16) (OJ L 128, 23.5. 2015 , p. 
27). 
11   See paragraph 3.1 of Opinion CON/2012/76.