A-G CJEU: EU law does not preclude national legislation concerning publication

Case C-215/17. Nova Kreditna Banka Maribo d.d. v Republika Slovenija. Opinon A-G Bobek. Request for a preliminary ruling. Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia).

Copyright - Trade Secrets Law. Nova Kreditna Banka Maribor d.d. ('NKBM') is a Slovenian Bank. A journalist made a request to that bank for acces to a list containing certain information on concracts concluded by NKBM with companies providing services of an intellectuel nature. At the time that requst was made, the Republic of Slovenia recapitalised that bank. For this reason, national legislation on access to documents was applicable tot the bank at that time. NBKM rejected the journalist's request. The journalist filed a complaint with the administrative authority dealing with acces tot information in Slovenia, which succeeded. NBKM challenged that decision up to the highest national court. Before that court, NKBM alleged that the national law infringed constitutional rights, and that it was incompatible wit EU law. The Vrhovno sodišče Republike Slovenije (Supreme Court of the Republic of Slovenia) decided to refer the following questions to the court for a preliminary ruling:

‘(1)      In the light of an approach based on minimum harmonisation, must Article 1(2)(c), third indent, of Directive 2003/98, as amended by Directive 2013/37 (consolidated version), be interpreted as meaning that national legislation may permit unrestricted (absolute) access to all information in copyright and consultancy contracts, even when those contracts are categorised as a business secret, and the legislation at issue stipulates this solely in relation to institutions under dominant State influence, but not also for other entities subject to the obligation; and is the interpretation also influenced by Regulation (EU) No 575/2013 in relation to the provisions on the disclosure of information, particularly in the sense that access to public sector information within the meaning of Directive 2003/98 may not be more extensive than is provided for by the uniform rules on the disclosure of information laid down by the regulation?

(2)      Must Regulation No 575/2013, viewed in terms of the rules on disclosure of information on the commercial activity of banks, and more specifically Articles 446 and 432(2) in Part Eight thereof, be interpreted as meaning that the latter provisions preclude legislation of a Member State which compels a bank that is, or was, under the dominant influence of a public law entity, to disclose information on contracts provided for consultancy and legal services and services of an intellectual nature, and more specifically information concerning the type of transaction concluded, the contractual partner (in the case of a legal person: the corporate or business name, registered office and business address), the value of the contract, the amount of the individual payments for the abovementioned services, the date on which the contract was concluded, the duration of the business relationship and similar information contained in the annexes to the contract — all information that came into existence during the period of dominant influence — without providing for any exception to that requirement, and with no possibility of balancing the public interest in accessing the data against the bank’s interest in safeguarding its business secrets, in circumstances in which there are no cross-border elements?’

A-G Bobek proposes the CJEU to answer the questions as follows:

–        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, as amended by Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98, does not preclude national legislation, such as that in question in the main proceedings, which permits unrestricted (absolute) access to certain information concerning copyright and consultancy contracts solely in relation to institutions under the dominant influence of the State.

'39.    Since the issues of initial access are clearly ones for the Member States to decide, then by definition the subsequently potentially applicable ‘add-on’ in the form of Directive 2003/98 cannot be used for reasoning backwards and limiting the scope of that initial access. As a result, that directive cannot prevent national rules granting unrestricted access to certain documents, even if those documents were categorised as business secrets.'

–        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, and in particular Article 432(2) thereof, does not preclude national legislation, such as that in question in the main proceedings, which compels a bank under the dominant influence of a public law entity to disclose certain information on contracts provided for consultancy and legal services and services of an intellectual nature, without providing for any exception to that requirement.

'53.      In my view, the type of disclosure set out in Regulation No 575/2013 and the unrestricted right of access granted by the ZDIJZ have different rationales and objectives, are drafted in a different way and impose rights and obligations on different persons. They concern very different matters.

54.      Therefore, I do not think that the uniform rules on exceptions to disclosure allowed by Article 432(2) of the regulation, drafted and formulated in their specific context and for their specific purpose, can be plugged into the national legislation on access to documents, namely the ZDIJZ (Slovenian national law). There is simply no material or systemic relationship between the regulation and the ZDIJZ to justify any such limitation.'