Opinion of the European Central Bank of 19 December 2014 on the disclosure of confidential information to a national parliamentary inquiry (CON/2014/89)
Date: 2014-12-19
Institutions: European Central Bank
Subjects: Ireland, central bank, confidentiality, disclosure of information, financial stability, national law

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/2014/89) 

Introduction and legal basis 

On 8 December 2014, the European Central Bank (ECB) received a request from 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 
employees 2 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 employment 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 legislative 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  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  L  176,  27.6.2013,  p.  338) 
(hereinafter the ‘CRD IV’). 

 
 
 
 
 
                                                 
 
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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 Parliament that is conducting a specific type of inquiry for which terms 

of  reference  resolution  were  passed  by  the  Lower  and  Upper  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 provisions on 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  passed  in  both  Houses  of  Parliament  to 

formally  empower  the  Joint  Committee  to  conduct  an  inquiry  into  the  banking  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, subject 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  CRD  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  disclosed  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 supervision involves processing of personal data, any processing 

the  parliamentary  enquiry  committee  must  comply  with  national 

by 
transposing 
Directive 95/46/EC  of  the  European  Parliament  and  of  the  Council4.  These  conditions  have  to  be 

law 

4  

Directive  95/46/EC  of  the  European  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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respected  and  implemented  when  disclosing  confidential  information  to  parliamentary  enquiry 

committees. 

Furthermore,  under  Directive  2014/59/EU  of  the  European  Parliament  and  of  the  Council 5  (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 86 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  acknowledges  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 Parliament 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 
supervisory  EU  legal  acts6.  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 
Bank 7.  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 covered 

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  

6  
7  

 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). 
See the amendment proposed by section 1(b) of the draft law and section 33AK(6) of the Act of 1942. 
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). 

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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 court 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 published on the ECB’s website.  

Done at Frankfurt am Main, 19 December 2014. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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