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

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20 January 2021

European Law Blog, 20 January 2021.

"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 courts [1]. 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."

See: CJEU clarifies the inviolability of EU and European Central Bank archives – Case C-316/19 Commission v. Slovenia (European Law Blog, link)