Towards a Single Standard of Professional Secrecy for Financial Sector Supervisory Authorities: A Reform Proposal

(2019) 44:3 European Law Review 295-318

25 Pages Posted: 27 Mar 2019 Last revised: 16 Apr 2020

See all articles by René Smits

René Smits

ACELG; University of Amsterdam - Amsterdam Center for Law & Economics (ACLE)

Nikolai Badenhoop

Humboldt University of Berlin, Faculty of Law

Date Written: March 4, 2019

Abstract

Recent case law on the scope of professional secrecy for the supervisory authorities in the financial sector and on the measure of openness of their files highlights the lack of coordination among the silos of supervision and the absence of clear and uniform professional secrecy rules across the financial sector. The introduction of the Single Supervisory Mechanism (SSM) makes this situation more acute: notwithstanding a centralised system of banking supervision, different approaches may exist in respect of access to files, even when based on EU legislation. This contribution addresses the accountability of supervisory authorities and, notably the European Central Bank (ECB), from the perspective of access to supervisory files, as a prelude to possible follow-up proceedings for failing supervision. Recent judgments in the Altmann, Baumeister, Buccioni, and UBS Europe cases slowly move the case law on supervisory secrecy towards more openness, long after Hillegom/Hillenius (1984). The judgments lead us to wonder whether the absence of legislative coordination and questionable drafting is being remedied by the judiciary. The variety of legislative provisions and relevant recent case law form the backdrop of our proposal to adopt a Regulation on professional secrecy for supervisory authorities in the financial sector, which would institute a single standard that is directly applicable across Member States and supervisory authorities.

Note: This material was first published by Thomson Reuters, trading as Sweet & Maxwell, 5 Canada Square, Canary Wharf, London, E14 5AQ, in European Law Review as 'Towards a Single Standard of Professional Secrecy for Supervisory Authorities – A Reform Proposal' (2019) 44 E.L. Rev. 295-318 and is reproduced by agreement with the publishers.

Keywords: financial supervision; professional secrecy; access to files; accountability; Banking Union; SSM; ECB

Suggested Citation

Smits, René and Badenhoop, Nikolai, Towards a Single Standard of Professional Secrecy for Financial Sector Supervisory Authorities: A Reform Proposal (March 4, 2019). (2019) 44:3 European Law Review 295-318, Available at SSRN: https://ssrn.com/abstract=3346946 or http://dx.doi.org/10.2139/ssrn.3346946

René Smits (Contact Author)

ACELG ( email )

P.O.Box 1030
Amsterdam, 1000 BA
Netherlands

University of Amsterdam - Amsterdam Center for Law & Economics (ACLE)

Roetersstraat 11
Amsterdam, 1018 WB
Netherlands

Nikolai Badenhoop

Humboldt University of Berlin, Faculty of Law ( email )

Berlin
Germany

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