E-10/23 X v Finanzmarktaufsicht

EFTA-case 

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Deadlines: Motivation ministry:    11 October 2023
Written observations:                    27 November 2023

Keywords: public access to information, competency, exchange of information

Subject:

- Agreement on the European Economic Area: article 3;

- Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice: article 1(a), article 34;

- 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: recital 23 [translator's note: sic — it appears that recital 29 is meant], article 4(1), article 6(a), article 24, article 53, article 56.

Facts of the case:

The appellant, X, was the majority shareholder and chair of the board of directors of a bank established in Liechtenstein, which had been granted a license by the defendant, the Financial Market Authority Liechtenstein (FMA). In 2022, he proposed to acquire a qualifying holding (more than 10%) in a bank established in the Grand-Duchy of Luxembourg. Between the FMA and the competent Luxembourg authority, the CSSF (Financial Sector Supervisory Commission), an exchange of information took place in relation to the proposed acquisition. X claims among other things that the negative information provided by the FMA to the CSSF led to X’s counterparty stepping back from the planned sale to X of the holding in the Luxembourg bank. X requested access in full to the files of FMA regarding provided facts and information to CSSF. FMA largely rejected the requests concerning access to the file, information and facts. The Appeals Board of FMA rejected the appeal brought by the X challenging the order. The Administrative Court of the Principality of Liechtenstein granted the appeal and instructed FMA to take a new decision. The administrative court held among other things that the FMA as a public authority is not excluded from the principle of public access to information contained in the Liechtenstein Information Act. The FMA reached an identical decision also in the second set of proceedings and the X's requests were refused.

Request for an advisory opinion:

1. Is the EFTA Court competent to interpret the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice of 2 May 1992 (SCA)?

2. If Question 1 is answered with “yes”:

Must Article 34 SCA be interpreted as meaning that a request to the EFTA Court for an advisory opinion is permitted also where, although the referring court considers the question on the interpretation of the EEA Agreement necessary in order to give its decision, this legal question has, however, in an earlier set of proceedings in the same procedure already been answered, in accordance with national procedural law, by a higher-ranking court with binding effect?

3. If Question 2 is also answered in the affirmative:

Is information which is the subject of formal and also informal exchanges of information between the competent authorities of the Member States as provided for in Article 4(1) of Directive 2013/36/EU subject to the obligation of professional secrecy within the meaning of Article 53 of this Directive?

4. If Question 3 is also answered with “yes”:

Must the cooperation between competent authorities as provided for in Article 24 of the Directive mentioned be regarded as an exchange of information which pursuant to Article 53 of this Directive is subject to an obligation of professional secrecy?

5. If finally Question 4 is also answered with “yes”:

May the obligation of professional secrecy set out in the first subparagraph of Article 53(1) of the Directive mentioned be breached only in the cases listed in Article 53(1) (second subparagraph: cases covered by criminal law; third subparagraph: disclosure in civil or commercial proceedings where a credit institution has been declared bankrupt or is being compulsorily wound up)? If this question is answered in the negative: Is a breach permissible also on grounds of national law, for example, by reason of a law that grants any person asserting a legitimate interest access to official documents unless precluded by overriding public or private interests?

II. If one of Questions I/1 to I/4 is answered with “no” or the main question in Question I/5 is answered in the negative, but the supplementary question in the affirmative:

Does the cooperation between competent authorities provided for in Article 4 of the Directive mentioned and thus the exchange of information that takes place between these authorities and the possibility to keep this partly or wholly secret constitute an appropriate particular measure, within the meaning of Article 3 of the EEA Agreement of 2 May 1992, to ensure fulfilment of the obligations arising out of this Agreement, and in particular to ensure the effective functioning of the system for supervision of the activities of credit institutions and investment firms and also the normal functioning of financial markets?

Cited (recent) case-law: C-166/73 Rheinmühlen-Düsseldorf; C-140/13; E-11/12.

Policy Area: BZK