The Supreme Court rejects that the CNMV file on Borrell is confidential

Madrid, 22 Mar The Supreme Court has rejected that all details of the sanction imposed by the National Securities Market Commission (CNMV) on the European Union's High Representative for Foreign Affairs, Josep Borrell, for the use of inside information in the sale of Abengoa shares are confidential. In a decision dated March 10, to which Efe had access, the litigation chamber rejected an appeal by the CNMV against a judgment of the National High Court of October 2020, which in turn rejected an appeal by the stock market supervisor against a January 2020 judgment of the Central Court of Contentious administrative No. 2. The court's ruling confirmed a resolution of the Council for Transparency and Good Governance (CTBG), which urged the CNMV to provide an individual with all the details of a sanctioning file. Specifically, the one opened to Josep Borrell in 2017 for the use of insider trading in the sale, in 2015, when he was director of the company, of Abengoa shares worth 9,030 euros, which was settled in 2918 with a fine of 30,000 euros and which the politician decided not to appeal. What the Supreme Court has resolved is whether or not access to information contained in a CNMV sanctioning file is requested, which ended with a firm sanction, the Transparency Law is applicable or not, specifically the procedure for hearing the interested party provided for in article 19 before deciding whether or not to grant the information requested. The CNMV alleged that all information obtained in the exercise of its supervisory and inspection functions, and by extension that included in the sanctioning files, is confidential and confidential, and is therefore subject to a regime of restricted access and subject to professional secrecy. On the other hand, the Council for Transparency and Good Governance rejected the confidentiality of “all information contained in supervisory and inspection files”, and recognizes the applicant's right to access information in the sanctioning file that is not confidential. But the Supreme Court, already in previous judgments, considers that the Securities Market Act cannot be understood to displace the Access to Information and Good Governance Act (LTAIBG) or Transparency Act as a general basic rule. Although the CNMV understands that “all data, documents and reports derived from the exercise of the functions of supervision and inspection, and by extension all the information contained in the sanctioning files”, falls outside the Transparency Act, the Supreme Court notes that “such a conclusion cannot be shared in such broad terms and with the intended scope” by the stock exchange supervisor. The High Court refers to the Court of Justice of the European Union (CJEU), which considers that “not all information contained in a file of a financial supervisory authority should be considered confidential information covered by the obligation to keep professional secrecy”. For the Supreme Court, the specification of what is considered to be “reserved or confidential” applicable to the duty of secrecy for CNMV staff, but not to the right to access public information “or to condition or limit the application of the Transparency Law”. For this to be the case, it must meet a number of requirements that are not public in nature and that its disclosure may prejudice the interests of the person who provided it or that of third parties, or that affect the proper functioning of the system for monitoring the activities of investment firms. After hearing the ruling, the CNMV stated in a statement that “as it cannot be otherwise, it will proceed to abide by and execute the sentence”. It also reiterates its commitment to “provide maximum transparency and dissemination of its actions, within the limits established by the regulations and always complying with the duty of secrecy, to ensure the best performance of its functions of supervision of the securities markets and investor protection”.