Regulating Transparency: The Concept of Confidential Information

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In this podcast, Sohra Askaryar from Baker Botts (Brussels) addresses the recent case before the European Court of Justice, C-15/16 Bundesanstalt für Finanzdienstleistungsaufsicht V Ewald Baumeister, which clarifies the definition of confidential information in the context of the Markets in Financial Instruments Directive (MiFID) first introduced in 2004 followed by MiFID II and the regulation MiFIR in 2014, effective from January 2018. The case sets out the criteria which national financial regulators must consider to determine if the information they hold on entities under their supervision may be disclosed to third parties. National financial regulators have extensive powers to request information from companies and are thereby privy to a range of commercially or otherwise sensitive information. This case has important practical implications for these companies with regard to the type of information they can expect to remain confidential and what may be disclosed. Do national financial regulators have an absolute duty of confidentiality? Can access to certain documents be granted and, if so, what determines this disclosure? What powers do financial regulators have over information? What protections are there for entities? What does it mean for energy market trading and transparency?