Opinion of the European Central Bank of 4 September 2019 on freedom of information (CON/2019/31)
Date: 2019-09-04
Institutions: European Central Bank
Subjects: Netherlands, access to information, administrative transparency, banking supervision, central bank, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 4 September 2019  

on freedom of information 

(CON/2019/31) 

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 law 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. To 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,  the  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 of the Law on financial 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). 

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banking3.  

Article 1:42 and paragraph 1.5.1 of the Law on financial supervision prohibit the use or disclosure 

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 the explanatory note to that 

Law  states  that  this  term  has  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  ECB  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  certain  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  records 6.  In  this  respect,  the  provisions  of  the  draft  law  establish  a 
regime  that  is  compatible  with  the  Union  legal  framework  on  transparency,  without  contravening 
professional  secrecy  obligations  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 the primacy 

3        Bankwet 
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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,  amending  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 term ‘confidential information’ in its judgment of 
19 June 2018, Baumeister C-15/16, ECLI:EU:C:2018:464. 
See  paragraph  2.1  of  Opinion  CON/2012/76.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 

See paragraph 2.2 of Opinion CON/2012/76.  

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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 Bank 7 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 European 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  ECB 8.  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 that the 
document will or will not be disclosed 10. Against this background, the 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 ECB 11. In this respect it 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 the 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 information to the general public could undermine the 

principle of legal certainty  and the justified confidence of, for instance, market participants,  which 

may have  provided 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 September 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). 
See Article 5 of Decision (ECB/2004/3). 

8    
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). 

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11   

See Decision (EU) 2015/16 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). 
See paragraph 3.1 of Opinion CON/2012/76.  

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