Opinion of the European Central Bank of 30 April 2021 on freedom of information (CON/2021/16)
OPINION OF THE EUROPEAN CENTRAL BANK of 30 April 2021 on freedom of information (CON/2021/16) Introduction and legal basis
On 18 March 2021 the European Central Bank (ECB) received a request from the Austrian Federal Chancellery for an opinion on a draft law amending the Law on the Federal Constitution, the Law of 1948 on the Court of Auditors and the Law of 1953 on the Constitutional Court and adopting a Law on freedom of information (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/EC , as the draft law relates to the Oesterreichische Nationalbank (OeNB) 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, the draft law abolishes the existing principle of official secrecy under the Austrian Federal Constitution and replaces it with a twofold principle of freedom of information. First, a constitutional obligation to publish ‘information of general interest’ via a central information register is introduced. The draft law defines information of general interest as information concerning or relevant to a general group of persons, in particular studies, expert reports, opinions and contracts with a value of at least EUR 100 000. Second, a constitutionally guaranteed right of access to ‘information’ for anyone is established. In the Law on freedom of information , the term information is more broadly defined as ‘information of general interest’ and means any record for official or business purposes in the sphere of activity of an institution, irrespective of the form in which it exists and is available. 1.2 The new information rights and obligations will be further specified in a new Law on freedom of
1 Bundesgesetz, mit dem das Bundes-Verfassungsgesetz, das Rechnungshofgesetz 1948 und das Verfassungsgerichtshofgesetz 1953 geändert und ein Informationsfreiheitsgesetz erlassen wird.
2 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).
3 Bundes-Verfassungsgesetz, BGBl. Nr. 1/1930 as amended by BGBl. I Nr. 2/2021.
4 Bundesgesetz über den Zugang zu Informationen (Informationsfreiheitsgesetz – IFG). information. 1.3 The obligation to publish information of general interest is addressed to all kinds of public bodies, including institutions entrusted with the management of federal administrative activities. The right of access to information applies to such bodies and additionally to all foundations, funds, institutions and undertakings subject to the control of the Rechnungshof Österreich (Austrian Court of Auditors), e.g. state-owned undertakings. 1.4 The draft law exempts certain information from the requirement to publish or to provide access to the public (hereinafter the ‘exempt information’). The exempt information includes information whose secrecy is, inter alia, (a) necessary for compelling reasons of integration and foreign policy, in particular in accordance with directly applicable provisions of European Union law, (b) in the interest of national security, national defence or the maintenance of public order and security, (c) necessary for the preparation of a decision, in particular in the interest of official proceedings or to protect legal provisions on the confidentiality of negotiations, deliberations and votes or (d) necessary to safeguard overriding legitimate interests of another party, in particular to protect professional, business or trade secrets. Exempt information may only be withheld to the extent and for as long as it is necessary and proportionate after consideration of all interests involved and not otherwise provided for by law. If an exemption only applies to part of the information, only that part shall be subject to the obligation to maintain secrecy. 1.5 The explanatory memorandum sheds further light on the scope of exempt information under the draft law. In particular, the explanatory memorandum states that, with regard to secrecy or information regulations determined under Union law, the circumstance of ‘overriding reasons pertaining to integration policy’ justifying an exception may be applicable. The explanatory memorandum states that this exception is applicable irrespective of whether Union law enjoys priority of application. The ECB understands from this reference that confidentiality obligations under directly applicable Union law shall in any case take precedence over national information obligations such as those stated in the draft law. Regarding the ‘overriding legitimate interests of another party’ to be protected, the explanatory memorandum states that potentially overriding private interests include, inter alia, legally protected professional, business or trade secrets. 1.6 Information rights are safeguarded by a judicial procedure. If access to the information is not granted by the respective institution, the responsible body for providing information shall, at the written request of the person requesting the information, issue a decision within two months of receipt of the request. An appeal may be filed against such a decision with the competent administrative court. The court has to decide on the legitimacy of the refusal to provide information. 1.7 The draft law will enter into force 18 months after its publication in the Bundesgesetzblatt (Federal Law Gazette). The explanatory memorandum notes that the purpose of this transition period between the draft law’s publication and its entry into force (vacatio legis) is to examine and, if necessary, amend existing confidentiality provisions and information rules on the basis of the new constitutional provisions.
2. General Observations
2.1 The ECB generally welcomes the draft law’s aim to enhance the legitimacy and accountability of the public sector by providing access to certain information to the general public . 2.2 The ECB wishes to recall that there are various provisions of Union law governing the general public’s right of access to information held by the OeNB and the Finanzmarktaufsicht (FMA, Austrian Financial Market Authority) in their respective capacities as a member of the European System of Central Banks (ESCB) and/or a national competent authority (NCA) assisting the ECB in the exercise of the tasks conferred on the ECB by Council Regulation (EU) No 1024/2013 . 2.3 Article 37(1) of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) provides that the members of the governing bodies and the staff of the ECB and the national central banks (NCBs) in the ESCB shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy. 2.4 Article 27(1) of Regulation (EU) No 1024/2013 provides that members of the Supervisory Board, staff of the ECB and staff seconded by participating Member States carrying out supervisory duties, even after their duties are ceased, are subject to the professional secrecy requirements set out in Article 37 of the Statute of the ESCB and in the relevant acts of Union law. 2.5 Article 53(1) of Directive 2013/36/EU of the European Parliament and of the Council requires that Member States provide that all persons working for or who have worked for the competent authorities and auditors or experts acting on behalf of the competent authorities are bound by the obligation of professional secrecy. 2.6 Decision ECB/2004/3 of the European Central Bank defines the conditions and limits according to which the ECB gives public access to ECB documents. Documents that are in the possession of an NCB and have been drawn up by the ECB 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 . While Decision ECB/2004/3 guarantees the right of access to ECB documents , it also protects certain public and private interests by way of exceptions . For example, access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBs shall be refused even after the decision has been taken, unless there is an overriding public interest
5 See paragraph 2.1 of Opinion CON/2019/31 and of CON/2012/76. All ECB opinions are published on EUR-Lex.
6 Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).
7 Directive 2013/36/EU of the European Parliament and 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 2006/48EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
8 Decision ECB/2004/3 of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ L 80, 18.3.2004, p. 42).
9 See Article 5 of Decision ECB/2004/3. This provision also applies to documents originating from the European Monetary Institute or the Committee of Governors. in disclosure . 2.7 ECB documents may also be in the possession of the NCAs as a result of their duty to assist the ECB, to cooperate in good faith and to exchange information with the ECB pursuant to Regulation (EU) No 1024/2013. Decision (EU) 2015/811 of the European Central Bank (ECB/2015/16) provides that where an NCA receives a request for an ECB document in its possession, the NCA must 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. Alternatively, the NCA may refer the request to the ECB . 2.8 Pursuant to the rules on professional secrecy contained in Directive 2013/36/EU confidential supervisory information received in the course of their duties by persons working for or who have worked for competent authorities, and auditors or experts acting on behalf of competent authorities, may be disclosed only in summary or aggregate form, such that individual credit institutions cannot be identified, without prejudice to cases covered by criminal law . Directive 2013/36/EU contains an exhaustive list of provisions detailing the conditions under which competent authorities, including the ECB and the NCAs within the framework of the Single Supervisory Mechanism (SSM), may use confidential supervisory information, the exchange of information between competent authorities and with oversight bodies, the transmission of information concerning monetary, deposit protection, systemic and payment aspects, the transmission of information to other entities, and the disclosure of information concerning clearing and settlement services .
3. Specific Observations
Professional secrecy requirements under Union law
3.1 The ECB understands from the explanatory memorandum that, with regard to the professional secrecy requirements under directly applicable provisions of Union law that are relevant to the OeNB and the FMA, the circumstance of ‘overriding reasons pertaining to integration policy’ justifying an exception may be applicable. Based on this, the ECB understands that the draft law intends to exempt (a) information of the kind covered by the obligation of professional secrecy of the members of the governing bodies and the staff of the OeNB pursuant to Article 37 of the Statute of the ESCB and (b) documents drawn up by the ECB or other ECB documents in the possession of the OeNB or the FMA, whose disclosure are subject to the ECB’s public access regime. However, information is only exempt to the extent and subject to an overall assessment of all
13 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).
14 See Article 2 of Decision (EU) 2015/811 (ECB/2015/16).
16 See paragraph 30 of the judgement of the European Court of Justice of 13 September 2018, Enzo Buccioni C- 594/16, ECLI:EU:C:2018:717 and paragraph 38 of the judgement of 19 June 2018, Baumeister C-15/16, ECLI:EU:C:2018:464.
17 See generally Articles 53 to 62 of Directive 2013/36/EU. interests under consideration and unless otherwise stipulated by law. Thus, the ECB understands that as a result of a balancing of interests, the exemption of information under the draft law is not absolute. 3.2 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 . In this respect it should be clarified in the text of the draft law that any obligation to provide information is without prejudice to professional secrecy requirements under the Statute of the ESCB and the public access regime of the ECB. 3.3 As far as concerns public access to information held by the OeNB or the FMA in their capacity as NCAs within the meaning of Regulation (EU) No 1024/2013, the ECB would like to raise one important concern. Unlike directly applicable Union law, a directive is not directly applicable, and is therefore not clearly exempt from the information requirements under the wording of the draft law. The scope of the exemption in respect of business or trade secrets is somewhat unclear and leaves room for interpretation. It is doubtful whether the provisions on exchange of information and professional secrecy under Article 53 et seq. of Directive 2013/36/EU, as transposed into national law, are sufficiently safeguarded by the draft law, in view of the explicit reference to directly applicable Union law, and taking into consideration that exempt information is subject to a balancing of interests. Information protected by the professional secrecy requirements under Article 53(1) of Directive 2013/36/EU should be clearly and unconditionally exempted under the draft law. 3.4 The ECB understands that the OeNB and the FMA are public bodies within the meaning of the draft law. The ECB further understands that the staff and the members of the governing bodies of the OeNB and the FMA remain bound by professional secrecy obligations set out in specific provisions of national law . The ECB expects that any professional secrecy obligations which Union law requires Member States to implement on a national level will not be derogated from by the draft law. Legal certainty 3.5 The draft law does not state that the information requirements under the draft law only refer to information obtained after it comes into force. Accordingly, OeNB and FMA may be faced with requests to provide access to information received before the draft law enters into force. Such information may include information that was provided to OeNB or FMA specifically relying on the general exemption for public access which OeNB or FMA have to comply with under the current legal 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 information to OeNB and FMA relying on the information remaining confidential. For the sake of legal certainty, it could be clarified that the draft law only relates to information that OeNB or the FMA obtains after the draft
18 See paragraph 3.1 of Opinion CON/2019/31 and of CON/2012/76. 19 Section 14 para 2 of the Law on the Financial Market Authority (Finanzmarktaufsichtsbehördengesetz, FMABG), section 45 of the Law on the National Bank (Nationalbankgesetz, NBG) and section 38 of the Law on Austrian banking (Bankwesengesetz, BWG). law comes into force. The ECB also wishes to reiterate that as long as the documents to be published by the FMA or the OeNB in the central information register are ECB documents, prior consultation of the ECB is necessary. This opinion will be published on EUR-Lex. Done at Frankfurt am Main, 30 April 2021. [signed] The President of the ECB Christine LAGARDE