CJEU clarifies the inviolability of EU and European Central Bank archives – Case C-316/19 Commission v. Slovenia

In this recent judgment, the Grand Chamber of the CJEU held that the Republic of Slovenia  (Slovenia) infringed the inviolability of the European Central Bank’s (ECB) archives by unilaterally seizing documents connected to the tasks of the European System of Central Banks (ESCB) and the Eurosystem at the premises of Slovenia’s national central bank (Bank of Slovenia). The Court also ruled that Slovenia did not sincerely cooperate with the ECB after that seizure to remedy this violation.

The case is exceptional due to a long-running difference in view on the interpretation and application of a provision of the Protocol No 7 on the Privileges and Immunities of the Union (the Protocol) in a national legal order, but forms part of a set of cases where the Court has had to clarify certain aspects of the Protocol. In this case, the Court defined for the first time what constitutes an “archive of the Union” in primary EU law. It also elaborated on the functional and pre-emptive nature of the principle of inviolability of EU archives (Article 2 of the Protocol) and shed further light on its older case law regarding the formal process that a Member State has to follow when it seeks access to EU archives. Finally, the CJEU assessed how Member States and EU entities have to cooperate in case of a unilateral interference with the inviolability of the EU archives. The judgment is also part of a series of cases (C‑202/18 and C‑238/18 – Rimšēvičs and ECB v Latvia ECLI:EU:C:2019:139) where the Court touches upon the implications of the hybrid legal construct that the ESCB and Eurosystem represent, thereby revealing the complex interlinkages between EU law and national law in the Economic and Monetary Union.

Background to the case

The judgment is the result of a sensitive dispute between the ECB and Slovenia on the interpretation of the concept of “EU archives” and the proper application of the Protocol in the national legal order of a Member State. It relates to the fall-out of the financial crisis of the late 2000s when Slovenia saved banks with taxpayers’ money, which revealed sharp divergences regarding the allegedly too high cost of those bank bail-ins and related questions of responsibility of national authorities. In an attempt to gather evidence from the Bank of Slovenia in criminal proceedings related to those bail-ins, national law enforcement authorities committed a faux pas by also unilaterally seizing physical and electronic documents, including from the Governor, that were connected to the performance of the tasks of the ESCB and of the Eurosystem next to national documents.

Because the ECB faced a similar seizure of its documents in Cyprus in 2013, a case that was eventually amicably settled, it was very sensitive when facing such a seizure again in 2016. The various avenues resorted to by the ECB to oppose the unilateral seizure failed, including its formal protest, informal attempts to solve the issue with local law enforcement and formal legal proceedings before national courts1. At that stage, the European Commission brought an infringement action under Article 258 TFEU centred on an alleged violation of Article 2 of the Protocol.

The judgment of the CJEU

EU archives: a broad autonomous EU legal concept

The importance of the judgment lies primarily in the Court seizing the occasion to define the legal concept of “archives of the Union”. In the absence of any definition in the Protocol, the Court defines the concept in primary EU law by reference to an existing definition in secondary EU law regarding the EU’s historical archives (Article 1(2)(a) of Council Regulation (EEC, Euratom) No 354/83). It argues that it does so to ensure a consistent interpretation in EU law (para 72). The Court also takes into consideration the objective that underlies the principle of inviolability of EU archives, which it already alluded to in Zwartveld and Others (C‑2/88-IMM, ECLI:EU:C:1990:315), namely the protection of the independence and functioning of the EU (institutions). The CJEU defined EU archives as: _“all those documents of whatever date, of whatever type and in whatever medium which have originated in or been received by the institutions, bodies, offices or agencies of the EU or by their representatives or servants in the performance of their duties, and which relate to the activities of or the performance of the tasks of those entities_” (para 75). This definition is broad as regards the type of documents covered, their origins and time-dimension, and seems fit for the digital age given it is not limited to a particular medium.

A closer look at this part of the ruling reveals three interesting legal elements. Firstly, the CJEU, contrary to Slovenia’s arguments, emphasises that “EU archives” is an autonomous concept under EU law, distinct from what might be accepted in international public law and courts or by national law (para 68). Hence, the Court reconfirms its long-standing doctrine of the autonomy of the EU legal order, which it first established in Costa v. ENEL (Case 6-64, ECLI:EU:C:1964:66). Closely related, the Court recalls explicitly that EU law, and therefore the Protocol is integrally part of the national legal systems of Member States. This alludes to the duty for Member States’ authorities, including their courts, to apply the Protocol when acting in their national legal order. Finally, the Court by reference to its jurisprudence in Zwartveld and Commission v. RQ (C‑831/18 P, ECLI:EU:C:2020:481) reconfirmed that the privileges and immunities are not absolute in EU law but have a merely functional character (para 73). They aim to avoid any interference that could jeopardise the functioning and independence of the Union (and its institutions). This does however not dispense EU institutions from needing to cooperate with a Member State.

EU archives in the ESCB/Eurosystem: a broad system-friendly interpretation

The key legal question in this case was whether ECB documents in the possession of national central banks (NCBs) are part of the ECB’s archives, and therefore benefit from the same protection under the Protocol as when they would be held at the premises of the ECB. The Court followed the Opinion of AG Kokott (ECLI:EU:C:2020:641) and upheld the legal reasoning of the Commission that EU archives do not need necessarily have to be kept at the premises of an EU institution.

It does so on the basis of two arguments. Firstly, it considers that if archives could only be kept at the premises of an EU institution, the scope of Article 2 of the Protocol offering them protection cannot be dissociated from that of Article 1, which provides for the inviolability of the Union’s buildings and premises. This would make the protection of the EU archives provided for in Article 2 redundant (para 78). Secondly, the Court took into account Rimšēvičs and ECB v Latvia regarding the existence of structural institutional links set by the Treaties between the ECB and the NCBs for the performance of the ESCB and Eurosystem’s tasks and the hybrid legal status of NCB governors (para 83). This approach of the Court makes legally sense because NCBs and their governors participate fully in the decision-making and execution of those tasks by virtue of EU law. This inevitably requires a close cooperation between the system’s constituent parts. In practice, it implies a need for permanent exchange of documents linked to the performance of those tasks, which necessarily implies that they are in the possession not only of the ECB but also of the NCBs forming part of the system (para 80 and 84). Hence, as the Court noted, all those documents should be considered part of the ECB archives. Arguing differently risks rendering the principle of inviolability of EU archives redundant.

The ruling therefore shows that the Court takes a system-friendly approach to the concept of EU archives taking into account the less marked distinction between EU and national law in an EU central bank context. However, that archives are kept at other places than the premises of EU institutions should not have come as a surprise because the Union’s historical archives are, as a rule, and by virtue of EU law, deposited at the European University Institute in Italy (Article 8 of Council Regulation (EEC, Euratom) No 354/83).

The principle of inviolability of EU archives further clarified

In its assessment of whether Slovenia infringed the principle of inviolability of the ECB’s archives protected by Article 2 of the Protocol, the Court confirms the principle’s “pre-emptive” character (para 98, 100 in fine, 102 and 104). By reference to the meaning given to the term “inviolability” in Article 1 of the Protocol regarding premises and buildings of the Union, the Court holds that the principle implies protection for the Union (institutions) from any unilateral interference (e.g. requisition or confiscation) on the part of the authorities of Member States (para 91-92 and 98). However, this does not mean that a Member State may not have access to EU archives in any situation (para 101). In this respect, the Court reconfirmed the functional nature of the principle, namely that it serves to protect the EU (institutions) functioning and independence, which it already established in Zwartveld, and the duty of EU institutions to cooperate with Member States when they seek access to the EU archives.

Importantly, the CJEU also further fine-tunes its case law by clarifying the applicable process that a Member State has to follow to get access to EU archives. Either it obtains the EU institution’s agreement or, if access is refused, the Member State concerned needs to seek a decision from the CJEU to give such access to EU archives (para 102) based on the Protocol. The rationale for this process is to ensure that the principle of inviolability can have effet utile by serving its intended purpose: the protection of functioning and independence of the EU (institution).

Without going into much detail, some other legal elements are interesting to note. First, the Court explicitly elaborates on the interplay between the principle of inviolability of EU archives and other legitimate public interests (para 103).  It confirms that the principle must be balanced against the rule of law and, in particular the need to guarantee independent and impartial investigation and judgment of criminal offences and avoidance of impunity. It held that the principle as such is not contrary to the rule of law. Second, the Court admits that the requirements, which EU law sets regarding access to EU archives in the hybrid central bank context of the EU, could have a negative bearing on criminal investigations in case access is needed to non-EU archives (e.g. the surprise effect of seizures of non-EU archives by national law enforcement authorities) (para 107). The Court stops short of offering a concrete solution to this issue because it did not deem the surprise element relevant in this particular case since contacts had taken place between the Bank of Slovenia and law enforcement authorities beforehand. Therefore, it is not excluded that the Court will have to shed light on the matter again in the future. However, following this case, the ESCB and Eurosystem have a strong self-interest in contemplating developing archiving solutions that would avoid unintended seizures of the ECB’s archives if national authorities are interested in documents for investigations that are not related to tasks that NCBs execute in the context of the ESCB and Eurosystem like in this particular case.

Mutual duties of assistance: it takes two to tango

A final element of the judgment that merits closer attention relates to the application of the principle of sincere cooperation in the context of the Protocol. Without going into every detail, it is important to note that the Court confirms its case law in Marra (C‑200/07 and C‑201/07, ECLI:EU:C:2008:579) that a Member State and an EU institution like the ECB must cooperate to avoid any conflict in the interpretation and application of the Protocol (para 119). Further, it also stresses the reciprocal nature of the duty of sincere cooperation, which it already touched upon in Zwartveld (para 125).

From the CJEU’s judgment, the rule can be inferred that in case of a unilateral interference by a Member State’s authorities with EU archives, in violation of the principle of inviolability under Article 2 of the Protocol, this mutual duty of assistance boils down to two elements. First, the EU institution should assist a Member State in order to enable it to remedy, as far as possible, any unlawful consequences of such a unilateral interference with its archives. Second, and in parallel, a Member State is under a duty to allow the EU institution concerned to identify those documents connected to the performance of its tasks that were subject of unilateral interference (para 126-127).

In this case, despite efforts of the ECB, Slovenia did not allow such identification by the ECB and law enforcement authorities also did not return its documents to the Bank of Slovenia even though Slovenia admitted during the hearing at the Court that those archives were not relevant for the pending criminal investigation (para 126).  Hence, the Court found that Slovenia failed to cooperate sincerely with the ECB after the seizure of its documents belonging to the ECB archives.

The Court’s approach reveals that regardless of the depth of their legal disagreement on substance, EU institutions and Member States are to engage constructively with each other to uphold EU law. The latter proved extremely difficult in this case because of the profoundly different legal views regarding what constitute EU archives and whether they can be kept outside the ECB premises. The failure of the Slovenian court system to refer the case for a preliminary ruling to the CJEU to shed light on an interpretative issue of an act of primary Union law further deepened the gridlock even though national courts share the responsibility with the CJEU to ensure the full application and integrity of EU law.

Some final reflections

It is now for Slovenia to comply with the Court’s judgment by taking the necessary measures (Article 260(1) TFEU). They pertain to allowing the ECB to identify the unilaterally seized archives and to return them to the Bank of Slovenia. In this process, the obligation of sincere cooperation set for the ECB equally applies.

Moreover, this judgment could have been avoided. The Court already clarified in Zwartveld that the principle of inviolability of the EU archives is not absolute and offered indications on how a Member State’s authorities, including its courts, can access EU archives, if needed for national investigations by cooperating with the EU institution concerned. However, the judgment is also a welcome development. Its importance stretches beyond this particular seizure of ECB documents. This is because any EU institution, body, office or agency can be faced with requests for access to its archives by national authorities and it is key to balance each actor’s legitimate interests.

Admittedly, the hybrid institutional setups of the ESCB and Eurosystem, but also those of the Single Supervisory Mechanism (SSM) and Single Resolution Mechanism (SRM) where NCBs or other national bodies also interact with EU entities in discharging tasks set by EU law, complicate matters2. The same complication could exist for the future European Public Prosecutor’s Office (EPPO), an EU body organised at a central and a decentralised level that becomes operational in a few months for investigating, prosecuting and bringing to judgment the perpetrators of, and accomplices to, criminal offences affecting the financial interests of the Union3. The ruling begs in this respect also questions about its implications for the archives of, for instance, the European Council and the Council, where representatives of Member States exercise duties under EU law. However, this should not be an insurmountable problem insofar as Member States respect the pre-emptive nature of the principle of inviolability of the EU archives and the EU entities simultaneously internalise the principle’s functional nature and their own duty of cooperation with the national authority in case the latter request access to EU archives.

Ultimately, in case of disagreement, it is for the CJEU to review whether the reliance of EU entities on the Protocol in order to justify any refusal to provide access to EU archives is justified or not. As the Court already showed in Zwartveld, it does not shy away from ordering an EU institution to give access to EU archives if justified, thereby balancing the principle of inviolability of the EU archives with other legitimate public interests raised by national authorities, including national courts.

* The author has been involved in this case. The views reflected in this article are only personal and do not necessarily reflect the official views of the European Commission. The author is grateful to Leo Flynn, Legal Advisor in the Commission’s Legal Service for his valuable comments in reviewing this contribution.