European Commission v Republic of Slovenia.

• Jurisdiction: European Union
• Date: 17 December 2020
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Grand Chamber)

17 December 2020 (*)

(Failure of a Member State to fulfil obligations – Article 343 TFUE – Privileges and immunities of the European Union – Statute of the European System of Central Banks (ESCB) and of the European Central Bank (ECB) – Article 39 – Privileges and immunities of the ECB – Protocol on the privileges and immunities of the European Union – Articles 2, 18 and 22 – Principle of the inviolability of the archives of the ECB – Seizure of documents at the premises of the Central Bank of Slovenia – Documents connected to the performance of the tasks of the ESCB and of the Eurosystem – Article 4(3) TEU – Principle of sincere cooperation)

In Case C‑316/19,

ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 16 April 2019,

European Commission, represented by L. Flynn and B. Rous Demiri, acting as Agents,

applicant,

supported by:

European Central Bank (ECB), represented by K. Kaiser, C. Zilioli, F. Malfrère and A. Šega, acting as Agents, and by D. Sarmiento Ramírez-Escudero, abogado,

intervener,

v

Republic of Slovenia, represented by V. Klemenc, A. Grum, N. Pintar Gosenca and K. Rejec Longar, acting as Agents,

defendant,

THE COURT (Grand Chamber),

composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, J.‑C. Bonichot, A. Arabadjiev, A. Prechal, L. Bay Larsen, N. Piçarra and A. Kumin, Presidents of Chambers, T. von Danwitz, C. Toader, M. Safjan, D. Šváby, P.G. Xuereb (Rapporteur), L.S. Rossi and I. Jarukaitis, Judges,

Advocate General: J. Kokott,

Registrar: M. Longar, Administrator,

having regard to the written procedure and further to the hearing on 22 June 2020,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2020,

gives the following

Judgment

1 By its application, the European Commission seeks a declaration from the Court of Justice that, by unilaterally seizing at the premises of the Banka Slovenije (Central Bank of Slovenia) documents connected to the performance of the tasks of the European System of Central Banks (ESCB) and of the Eurosystem and by failing to cooperate sincerely with the European Central Bank (ECB) on that matter, the Republic of Slovenia has failed to fulfil its obligations under Article 343 TFEU, Article 39 of Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Bank (OJ 2016 C 202, p. 230; ‘the Protocol on the ESCB and the ECB’), Articles 2, 18 and 22 of Protocol (No 7) on the privileges and immunities of the European Union (OJ 2016 C 202, p. 266; ‘the Protocol on privileges and immunities’) and Article 4(3) TEU.

Legal context

The Protocol on the ESCB and the ECB

2 Article 1 of the Protocol on the ESCB and the ECB reads as follows:

‘In accordance with Article 282(1) [TFEU], the [ECB] and the national central banks shall constitute the [ESCB]. The ECB and the national central banks of those Member States whose currency is the euro shall constitute the Eurosystem.

The ESCB and the ECB shall perform their tasks and carry on their activities in accordance with the provisions of the Treaties and of this Statute.’

3 Article 8 of the Protocol states:

‘The ESCB shall be governed by the decision-making bodies of the ECB.’

4 Article 9.2 of the Protocol provides:

‘The ECB shall ensure that the tasks conferred upon the ESCB under Article 127(2), (3) and (5) [TFEU] are implemented either by its own activities pursuant to this Statute or through the national central banks pursuant to Articles 12.1 and 14.’

5 Under Article 9.3 of the Protocol:

‘In accordance with Article 129(1) [TFEU], the decision making bodies of the ECB shall be the Governing Council and the Executive Board.’

6 Article 10.1 of the Protocol on the ESCB and the ECB provides as follows:

‘In accordance with Article 283(1) [TFEU], the Governing Council shall comprise the members of the Executive Board of the ECB and the governors of the national central banks of the Member States whose currency is the euro.’

7 Article 14.3 of that protocol is worded as follows:

‘The national central banks are an integral part of the ESCB and shall act in accordance with the guidelines and instructions of the ECB. The Governing Council shall take the necessary steps to ensure compliance with the guidelines and instructions of the ECB, and shall require that any necessary information be given to it.’

8 Article 39 of that protocol provides:

‘The ECB shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the [Protocol on privileges and immunities].’

The Protocol on Privileges and Immunities

9 The preamble to the Protocol on privileges and immunities reads as follows:

‘Considering that, in accordance with Article 343 [TFEU] and Article 191 [EAEC], the European Union and the [European Atomic Energy Community] shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks.’

10 Article 1 of that protocol provides:

‘The premises and buildings of the Union shall be inviolable. They shall be exempt from search, requisition, confiscation or expropriation. The property and assets of the Union shall not be the subject of any administrative or legal measure of constraint without the authorisation of the Court of Justice.’

11 Article 2 of the Protocol provides:

‘The archives of the Union shall be inviolable.’

12 Under Article 18 of the Protocol:

‘The institutions of the Union shall, for the purpose of applying this Protocol, cooperate with the responsible authorities of the Member States concerned.’

13 The first paragraph of Article 22 of the Protocol on privileges and immunities provides as follows:

‘This Protocol shall also apply to the [ECB], to the members of its organs and to its staff, without prejudice to the provisions of the Protocol on [the ESCB and the ECB].’

Background to the dispute

14 As of February 2015, the Central Bank of Slovenia and the Slovenian law enforcement authorities (‘the Slovenian authorities’) had exchanges regarding an investigation carried out by the latter against certain members of staff of that central bank, including the governor at the time (‘the Governor’), on suspicion of abuse of power and of official functions in connection with the restructuring, in 2013, of a Slovenian bank. In the course of those exchanges, the Central Bank of Slovenia sent to the Slovenian authorities, at the request of the latter, certain information and certain documents which were not linked to the performance of the tasks of the ESCB and of the Eurosystem. The Slovenian authorities however took the view that the Central Bank of Slovenia had not provided all the information and documents requested.

15 On 6 July 2016, on the basis of two orders of the Okrožno sodišče v Ljubljani (Ljubljana Regional Court, Slovenia) of 30 June and 6 July 2016, the Slovenian authorities, in connection with the abovementioned investigation, searched the premises of the Central Bank of Slovenia and seized documents.

16 Although the Central Bank of Slovenia argued that those measures concerned ‘archives of the ECB’, protected by the Protocol on privileges and immunities, to which the Slovenian authorities were not to have access without the express agreement of the ECB, those authorities continued with that search and seizure of documents without involving the ECB.

17 As well as documents in hard copy, the Slovenian authorities seized, inter alia, electronic documents from the IT server of the Central Bank of Slovenia and the personal computers of the suspected persons. The documents seized, which were in the Governor’s possession, included all communications sent through his email account, all electronic documents on his workspace computer and on his laptop concerning the period between 2012 and 2014, irrespective of their content, and documents relating to that period that were in the Governor's office. The Slovenian authorities also seized all electronic documents from that period stored on the IT server of the Central Bank of Slovenia and relating to the Governor.

18 On the same day, in a letter sent to the Slovenian authorities, the President of the ECB formally protested against the authorities’ seizure of the documents, referring to the principle of the inviolability of the ECB’s archives. In particular, he objected that those authorities had not taken any action to find a solution enabling the investigation carried out by them to be reconciled with the principle of the inviolability of the ECB’s archives.

19 In the exchanges that followed between the ECB and the Slovenian authorities, the latter informed the ECB on 7 July 2016 that it was only after the documents seized had been received that any objections in relation to the privileges and immunities of the ECB would be examined.

20 On 26 July 2016, the ECB suggested to the Slovenian authorities that they could agree on a method to identify the documents seized which were part of its archives, which would enable those documents to be excluded from an immediate assessment in the investigation and would give the ECB the opportunity to determine whether the protection of those documents should be waived.

21 On 27 July 2016, the Prosecutor-General in charge of the case (‘the Prosecutor-General’) informed the ECB that he regarded that proposal as interference in the ongoing investigation. He nevertheless showed that he was open to continuing to examine the concerns voiced by the ECB and stated that he was willing to meet the representatives of the latter at the end of August 2016.

22 On 5 August 2016, the ECB brought an action against the two orders of the Okrožno sodišče v Ljubljani (Ljubljana Regional Court) referred to in paragraph 15 above before the Upravno sodišče (Administrative Court, Slovenia), which the latter...