Case C‑140/13

Annett Altmann and Others

v

Bundesanstalt für Finanzdienstleistungsaufsicht

(Request for a preliminary ruling from the

Verwaltungsgericht Frankfurt am Main)

‛Reference for a preliminary ruling — Approximation of laws — Directive 2004/39/EC — Article 54 — Obligation of professional secrecy incumbent on national financial supervisory authorities — Information concerning a fraudulent investment firm in compulsory liquidation’

Summary — Judgment of the Court (Second Chamber), 12 November 2014

Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Request for information in administrative proceedings — Information concerning an investment firm which acted fraudulently and in compulsory liquidation — Case not covered by criminal law and not in a civil or commercial proceeding within the meaning of Article 54 of the directive — Possibility for the national financial supervisory authorities to rely on their obligation to maintain professional secrecy

(European Parliament and Council Directive 2004/39, Arts 54(1) and (2))

Article 54(1) and (2) of Directive 2004/39 on markets in financial instruments must be interpreted as meaning that, in administrative proceedings, a national supervisory authority may rely on the obligation to maintain professional secrecy against a person who, in a case not covered by criminal law and not in a civil or commercial proceeding, requests it to grant access to information concerning an investment firm which is now in compulsory liquidation, even where that firm’s main business model consisted in large scale fraud and wilful harming of investors’ interests and several executives of that firm have been sentenced to terms of imprisonment.

It is in order to protect not only the firms directly concerned, but also the normal functioning of the markets in financial instruments of the European Union that Article 54(1) of Directive 2004/39 imposes, as a general rule, the obligation to maintain professional secrecy. The specific cases in which the general prohibition on divulging confidential information covered by professional secrecy does not preclude their transmission or use are set out in detail in Article 54. It follows that there are no exceptions to the general prohibition on divulging confidential information other than those specifically provided for in that article. As regards information concerning investment firms declared bankrupt or being compulsorily wound up, the obligation to maintain professional secrecy may be disregarded, without prejudice to cases covered by criminal law, only where the confidential information does not concern third parties, that information is divulged in civil or commercial proceedings and that that information is necessary for carrying out those proceedings.

(see paras 33-35, 38, 42, operative part)

Case C‑140/13

Annett Altmann and Others

v

Bundesanstalt für Finanzdienstleistungsaufsicht

(Request for a preliminary ruling from the

Verwaltungsgericht Frankfurt am Main)

‛Reference for a preliminary ruling — Approximation of laws — Directive 2004/39/EC — Article 54 — Obligation of professional secrecy incumbent on national financial supervisory authorities — Information concerning a fraudulent investment firm in compulsory liquidation’

Summary — Judgment of the Court (Second Chamber), 12 November 2014

Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Request for information in administrative proceedings — Information concerning an investment firm which acted fraudulently and in compulsory liquidation — Case not covered by criminal law and not in a civil or commercial proceeding within the meaning of Article 54 of the directive — Possibility for the national financial supervisory authorities to rely on their obligation to maintain professional secrecy

(European Parliament and Council Directive 2004/39, Arts 54(1) and (2))

Article 54(1) and (2) of Directive 2004/39 on markets in financial instruments must be interpreted as meaning that, in administrative proceedings, a national supervisory authority may rely on the obligation to maintain professional secrecy against a person who, in a case not covered by criminal law and not in a civil or commercial proceeding, requests it to grant access to information concerning an investment firm which is now in compulsory liquidation, even where that firm’s main business model consisted in large scale fraud and wilful harming of investors’ interests and several executives of that firm have been sentenced to terms of imprisonment.

It is in order to protect not only the firms directly concerned, but also the normal functioning of the markets in financial instruments of the European Union that Article 54(1) of Directive 2004/39 imposes, as a general rule, the obligation to maintain professional secrecy. The specific cases in which the general prohibition on divulging confidential information covered by professional secrecy does not preclude their transmission or use are set out in detail in Article 54. It follows that there are no exceptions to the general prohibition on divulging confidential information other than those specifically provided for in that article. As regards information concerning investment firms declared bankrupt or being compulsorily wound up, the obligation to maintain professional secrecy may be disregarded, without prejudice to cases covered by criminal law, only where the confidential information does not concern third parties, that information is divulged in civil or commercial proceedings and that that information is necessary for carrying out those proceedings.

(see paras 33-35, 38, 42, operative part)