Published 22 January 2019
The judgment of the European Court of Justice ("CJEU") in Case C-15/16 Bundesanstalt für Finanzdienstleistungsaufsicht v Ewald Baumeister clarifies the definition of "confidential information" within the context of the Directive on markets in financial instruments ("MiFID"). Specifically, the case sets out a list of criteria that national financial regulators must consider to determine whether the information they hold regarding the entities they supervise may be disclosed to third parties. This judgment has implications beyond the financial sector, because national and European regulators, including the Agency for the Cooperation of Energy Regulators ("ACER"), share information on a regular and oftentimes extensive basis.
This article describes the powers of national financial regulators to request information under MiFID, and the protection MiFID grants from disclosure of this information to third parties. It then critiques the judgment of the CJEU, in particular on the basis that the CJEU ought to have considered analogous provisions in Regulation 1049/2001, which concerns confidential information held by European regulators. The fact that national financial regulators, on the one hand, and European financial regulators, on the other, may handle confidential information differently creates significant legal uncertainty. The issue becomes even more complex when one considers information-sharing between regulators of different sectors. For example, ACER is expressly required to share information with not only national energy regulators, but also national financial regulators, national competition authorities, the European Securities and Markets Authority, and "other relevant authorities." The article concludes with practical advice to regulated entities that must navigate this uncertainty.