Bundesanstalt für Finanzdienstleistungsaufsicht v Ewald Baumeister.
Date: 2018-06-19
19


In that regard, essentially, the referring court, first, recalls certain findings of the Courts of the European Union in the context of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), and of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) (see, inter alia, judgments of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 68, 69 and 77, and of 28 January 2015, Evonik Degussa v Commission, T‑341/12, EU:T:2015:51, paragraphs 84 and 94). Second, the referring court observes that the specific characteristics of the activity of monitoring the financial markets might justify the attribution of a particularly broad scope to Paragraph 9(1) of the KWG, not least from a temporal perspective.
24


In accordance with the Court’s settled case-law, the need for a uniform application of EU law requires that, where a provision of EU law makes no reference to the law of the Member States with regard to a particular concept, that concept must be given an independent and uniform interpretation throughout the European Union. That interpretation must be sought having regard not only to the wording of the provision at issue but also to its context and to the objective pursued by the legislation in question (see, to that effect, judgments of 19 December 2013, Fish Legal and Shirley, C‑279/12, EU:C:2013:853, paragraph 42, and of 16 July 2015, A, C‑184/14, EU:C:2015:479, paragraphs 31 and 32).
26


As regards the context of Article 54 of Directive 2004/39 and the objectives pursued by that directive, it is stated in recital 2 thereof that its purpose is to provide for the degree of harmonisation required to offer investors a high level of protection and to allow investment firms to provide services throughout the European Union on the basis of home country supervision (judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 26).
27


It is also apparent from the second sentence of recital 63 of Directive 2004/39 that, due to increasing cross-border activity, competent authorities should provide each other with the information that is necessary for the exercise of their functions, so as to ensure the effective enforcement of that directive (judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 27).
28


Thus, under Article 17(1) of Directive 2004/39, the Member States must ensure that the competent authorities continuously monitor the activities of investment firms so as to assess compliance with their obligations (judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 28).
29


Article 50(1) and (2) of that directive provide that the competent authorities must have all supervisory and investigatory powers that are necessary for the exercise of their functions, including the rights to have access to any document and to demand information from any person (judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 29).
30


Further, Article 56(1) of Directive 2004/39 states that competent authorities are to render assistance to competent authorities of the other Member States. In particular, they must exchange information and cooperate in any investigation or supervisory activities (judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 30).
31


The effective monitoring of the activities of investment firms, through supervision within a Member State and the exchanging of information by the competent authorities of several Member States, as briefly described in the preceding paragraphs, requires that both the supervised entities and the competent authorities can have confidence that the confidential information provided will, in principle, remain confidential (judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 31).
32


As is clear from, in particular, the last sentence of recital 63 of Directive 2004/39, the absence of such confidence is liable to compromise the smooth transmission of the confidential information that is necessary for monitoring (judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 32).
33


Therefore, in order to protect not only the specific interests of the firms directly concerned, but also the public interest in the normal functioning of the markets in financial instruments of the European Union, Article 54(1) of Directive 2004/39 imposes, as a general rule, the obligation to maintain professional secrecy (see, to that effect, judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraph 33).
35


It also follows from those considerations that the general prohibition on the disclosure of confidential information laid down in Article 54(1) of that directive applies to information held by the competent authorities (i) which is not public and (ii) the disclosure of which is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the system for monitoring the activities of investment firms that the EU legislature established in adopting Directive 2004/39.
38


It must also be stated that Article 54 of Directive 2004/39 establishes the general rule that disclosure of confidential information held by the competent authorities is prohibited and lists exhaustively the specific cases where, exceptionally, that general prohibition does not preclude their communication or use (see, to that effect, judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraphs 34 and 35).
40


In that regard, the objective served by Article 54 of Directive 2004/39 differs from that pursued by Regulation No 1049/2001.
41


The aim of Regulation No 1049/2001 is to give the public a right of access to documents of the institutions of the European Union which is as wide as possible (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 33, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 57).
42


That was the objective in the light of which the Court held that Regulation No 1049/2001 requires, as a general rule, an EU institution that proposes to refuse access to a document to explain how access to that document could specifically undermine the interest protected by one of the exceptions that are provided for to the right of access at issue, without prejudice to that institution’s right to rely, in that regard, on a general presumption of confidentiality that applies to a category of documents, where considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 48 to 50, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 68, 69 and 77).
48


It must be stated, in that regard, that, if the objectives pursued by Article 54(1) of Directive 2004/39, as set out in paragraph 33 of the present judgment, are not to be jeopardised, the competent authorities are, as a general rule, bound to comply with the obligation of professional secrecy imposed on them by that provision throughout the period during which the information that they hold for the purposes of that directive has to be deemed to be confidential (see, to that effect, judgment of 12 November 2014, Altmann and Others, C‑140/13, EU:C:2014:2362, paragraphs 31 and 34).
49


That said, as the referring court and the European Commission have, in essence, observed, the passage of time is a circumstance that is normally liable to have an influence on the analysis of whether the conditions governing the confidentiality of the information concerned are satisfied at a given point in time (see, to that effect, judgments of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraphs 56 and 57, and of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64).
53


As regards specifically information that can be classified as business secrets, it must be recalled that it is clear from the Court’s case-law that the protection of business secrets is a general principle of EU law (see, to that effect, judgment of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraph 49 and the case‑law cited).
54


Further, the Court’s case-law indicates that where information that could constitute business secrets at a certain moment in time is at least five years old, that information must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties (see, to that effect, judgment of 14 March 2017, Evonik Degussa v Commission, C‑162/15 P, EU:C:2017:205, paragraph 64).