Article 35a
Exchange of information between authorities and with other entities
1.
The Authority shall share, on a regular or case-by-case basis, information that it obtained from financial institutions or the other authorities when carrying out its duties and that stems from the application and implementation of Union law, with the other authorities upon request, provided that the requesting authority is entitled to obtain that information from financial institutions or the other authorities pursuant to Union law.
2.
The Authority shall request information from any of the other authorities that have obtained that information, instead of requesting it directly from financial institutions, provided that the Authority is entitled to obtain that information pursuant to Union law.
The first subparagraph shall be without prejudice to the powers of the Authority to obtain the requested information from financial institutions where the other authority is unable to share the information, where urgent action is needed or where obtaining the information directly from financial institutions is necessary for the performance of the Authority’s tasks pursuant to Union law.
3.
A request to exchange information pursuant to paragraph 1 of this Article shall indicate the legal basis under Union law that entitles the requesting authority to obtain the information from financial institutions or the other authorities.
The requesting authority and the Authority shall be subject to the obligations of professional secrecy and data protection laid down in Articles 70 and 71 and in sectoral legislation which apply to the sharing of information between the financial institution and the requesting authority and between the financial institution and the Authority.
4.
Where the Authority exchanges information pursuant to paragraph 1, it shall, without undue delay, inform each authority from which it obtained the information or each financial institution, if the information was obtained from financial institutions directly, about the exchange. In the case of recurring or periodic exchanges of information, the Authority shall be obliged to inform the financial institution or the authority from which it obtained the information only once.
5.
By way of derogation from paragraph 4, the Authority shall not be obliged to inform the authority or the financial institution, as applicable, about the exchange of information where either of the following conditions is met:
(a)
the information has been anonymised in such a manner that it no longer relates to any identified or identifiable natural person and that the financial institution or other legal entities are no longer identifiable; or
(b)
the information has been modified, aggregated or treated by any other method of disclosure control to protect confidential information, including trade secrets, and to protect personal data through appropriate technical and organisational measures in accordance with Regulations (EU) 2016/679 ( 7 ) and (EU) 2018/1725 ( 8 ) of the European Parliament and of the Council.
6.
By way of derogation from paragraph 4, the Authority shall not inform the financial institution about the exchange of information if it determines, or is informed by the requesting authority, that doing so could compromise supervisory or resolution proceedings, actions or investigations.
7.
Paragraphs 1 to 6 shall also apply to information that the Authority has received from a financial institution or the other authorities and upon which the Authority has subsequently performed quality checks or which the Authority has otherwise processed.
8.
To facilitate exchanges of information as referred to in paragraphs 1 to 7, the Authority and the other authorities may enter into memoranda of understanding regarding the arrangements for such exchanges. The memoranda of understanding may also specify arrangements for the sharing of resources for the collection and processing of shared information. The Commission may, after consulting the Authority and the other authorities, develop guidance on the main elements of such memoranda of understanding.
9.
Paragraphs 1 to 8 shall be without prejudice to the protection of intellectual property rights and shall not prevent or restrict the exchange of information between the Authority and the other authorities in accordance with other provisions of this Regulation or with other Union legislation.
In the event of a conflict between this Article and other provisions of this Regulation or other Union legislation that govern the exchange of information between the Authority and the other authorities, such other provisions shall prevail.
10.
The Authority and the competent authorities may, at their own discretion, grant access to information obtained when carrying out their duties for re-use by financial institutions, researchers and other entities that have a legitimate interest in that information for research and innovation purposes, provided that the Authority or the competent authority granting access has ensured that all of the following conditions have been complied with:
(a)
the necessary measures have been taken to anonymise the information, in a manner that prevents individual financial institutions, entities, data subjects and, where it is the Authority which grants access to the information, Member States from being identified;
(b)
the information has been modified, aggregated or treated by any other method of disclosure control to protect confidential information, including trade secrets or content covered by intellectual property rights.
Information received from any authority shall be shared pursuant to the first subparagraph only with the consent of the authority that initially obtained that information.
11.
By 11 November 2027 the Authority shall, in close cooperation with competent authorities, report to the Commission on all legal obstacles in sectoral legislation that prevent them, in any way, from exchanging information with the other authorities or with other entities. The report may also address non-material, obsolete, duplicative or otherwise irrelevant reporting requirements. It may also include suggestions for improving consistency between reporting requirements for financial and non-financial entities. The report shall be updated on a regular basis, where necessary.
Taking into account the report referred to in the first subparagraph, the protection of intellectual property rights and the obligations of professional secrecy and data protection, the Commission shall, where appropriate, submit to the European Parliament and to the Council a legislative proposal to remove such legal obstacles in sectoral legislation, to foster the exchange of information between authorities and with other entities.
12.
For the purposes of this Article, Article 35(4) and Article 70(3), ‘other authorities’ means any of the following authorities:
(a)
the ESRB;
(b)
the European Supervisory Authority (European Banking Authority);
(c)
the European Supervisory Authority (European Securities and Markets Authority);
(d)
competent authorities, as defined in Article 4, point (2), of this Regulation;
(e)
(f)
(g)
the authorities composing the Single supervisory mechanism, as defined in Article 2, point (9), of Council Regulation (EU) No 1024/2013 ( 9 );
(h)
(i)
resolution authorities, such as those referred to in Article 3(3) of Directive 2014/59/EU of the European Parliament and of the Council ( 11 );
(j)
(k)
financial supervisors, as defined in Article 2, second subparagraph, point (1), of Directive (EU) 2024/1640 of the European Parliament and of the Council ( 13 );
For the purposes of this Article, ‘financial institution’ means financial institution as defined in Article 2, point (a), of Regulation (EU) No 1092/2010.
( 7 ) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1, ELI: http://data.europa.eu/eli/reg/2016/679/oj).
( 8 ) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39, ELI: http://data.europa.eu/eli/reg/2018/1725/oj).
( 9 ) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63, ELI: http://data.europa.eu/eli/reg/2013/1024/oj).
( 10 ) Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ L 225, 30.7.2014, p. 1, ELI: http://data.europa.eu/eli/reg/2014/806/oj).
( 11 ) Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190, ELI: http://data.europa.eu/eli/dir/2014/59/oj).
( 12 ) Regulation (EU) 2024/1620 of the European Parliament and of the Council of 31 May 2024 establishing the Authority for Anti-Money Laundering and Countering the Financing of Terrorism and amending Regulations (EU) No 1093/2010, (EU) No 1094/2010 and (EU) No 1095/2010 (OJ L, 2024/1620, 19.6.2024, ELI: http://data.europa.eu/eli/reg/2024/1620/oj).
( 13 ) Directive (EU) 2024/1640 of the European Parliament and of the Council of 31 May 2024 on the mechanisms to be put in place by Member States for the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Directive (EU) 2019/1937, and amending and repealing Directive (EU) 2015/849 (OJ L, 2024/1640, 19.6.2024, ELI: http://data.europa.eu/eli/dir/2024/1640/oj).