Article 16 - Freedom to conduct a business
Article 51 - Field of application
Key facts of the case:
Reference for a preliminary ruling — Approximation of laws — Re-use of public sector information — Directive 2003/98/EC — Article 1(2)(c), third indent — Prudential requirements for credit institutions and investment firms — Regulation (EU) No 575/2013 — Information to be published by credit institutions and investment firms — Article 432(2) — Exceptions to public disclosure requirements — Information considered commercially sensitive or confidential — Applicability — Credit institutions predominantly owned by the State — National legislation laying down the public nature of certain commercial information held by those institutions.
Outcome of the case:
On those grounds, the Court (Fourth Chamber) hereby rules:
Article 1(2)(c), third indent, of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, and Article 432(2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, must be interpreted as not applying to national legislation, such as that at issue in the main proceedings, requiring a bank which has been under the dominant influence of a body governed by public law to disclose information on contracts provided for consultancy and legal services, copyright contracts and other services of an intellectual nature that it concluded during the period in which it was under that dominant influence, with no exceptions on the ground of protecting that bank’s business secrets and, accordingly, as not precluding such national legislation.
22) In that context, the referring court refers also to Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and to the fundamental freedoms enshrined in Articles 49, 56 and 63 TFEU. In that connection, although the referring court expresses doubts as to the cross-border nature of the dispute in the main proceedings, it is unclear nevertheless as to the applicability of those fundamental freedoms, on account of (i) NKBM’s claim that it has a subsidiary in Austria and that that subsidiary was acquired, after the dispute emerged, by an undertaking established in another Member State; and (ii) the fact that the access to the data of banks under the dominant influence of a public law entity, granted by the ZDIJZ, might deter some service providers from other Member States from providing services to banks such as NKBM, as well as potential investors in other Member States from acquiring shares in such a bank.
45) It follows that the provisions of the ZDIJZ at issue in the main proceedings cannot be considered as implementing EU law, for the purposes of Article 51 of the Charter, in such a way that Article 16 thereof is not applicable to a dispute such as that at issue in the main proceedings.