Preparatory Documents & Documents Relating to 2021 EU-US Joint Financial Regulatory Forum

Nicholas Lee made this access to documents request to European Banking Authority

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The request was refused by European Banking Authority.

Dear European Banking Authority,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I am requesting documents which contain the following information:

Preparatory Documents & Documents Relating to 2021 EU - US Joint Financial Regulatory Forum, held on September 29 and September 30 2019. A joint statement including various EU bodies, including the EBA, is located here: https://www.eifr.eu/document/file/downlo....

Also of relevance to this Information Request are documents concerning National Competent Authority comments / opinions, in an anonymised form if necessary to ensure the broadest public access to information.

Yours faithfully,
Nicholas Lee

Dear European Banking Authority,

Please note, the dates referenced in this request should be September 29 2021 and September 30 2021. All references to dates in 2019 are incorrect.

Yours faithfully,

Nicholas Lee

EBA -AtD, European Banking Authority

1 Attachment

Dear Mr Lee,

Thank you for your communication, which we acknowledge receipt of. We will be reverting within due course, pursuant to Regulation (EC) 1049/2001.

Kind regards,

Legal and Compliance Unit

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EBA -AtD, European Banking Authority

1 Attachment

Dear Mr Lee,

Thank you for your communication, which we acknowledge receipt of. We will be reverting within due course, pursuant to Regulation (EC) 1049/2001.

Kind regards,

Legal and Compliance Unit

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EBA -AtD, European Banking Authority

Dear Mr Lee

Thank you for your email of 11 November 2021 below in which you request access to documents pursuant to Regulation (EC) No 1049/2001 ('the Access to Documents Regulation', available here: https://eur-lex.europa.eu/legal-content/...).

As confirmed in our subsequent email exchange, we understand that you are referring in your request to the EU - US Joint Financial Regulatory Forum held on 29 and 30 September, 2021 (and not 2019 which is the year mentioned in your email below).

The EBA possesses one document which appears to us to fall within the scope of your request. This is a document which was drawn up, broadly speaking, for the purpose of preparing the participation of EBA staff in certain agenda items at the Forum held on 29 and 30 September 2021 and which accordingly provides supporting information for the EBA staff in regard to those agenda items. We regret to inform you that in line with Regulation (EC) No 1049/2001 the EBA must however refrain from providing access to this document for the following reasons.

Firstly, Article 4(1)(a) of the Access to Documents Regulation requires the EBA to refuse access to a document where its disclosure would undermine the protection of the public interest as regards international relations. Having regard to the relevance of the 2021 EU-US Joint Financial Regulatory Forum from the point of view of the public interest as regards international relations between the EU and the United States, Article 4(1)(a) applies in respect of the mentioned document, which was, as mentioned, prepared to support the participation of EBA staff in certain items on the 2021 Forum agenda.

To give you some indication of the material importance of the 2021 Forum from the perspective of the public interest as regards international relations, the Joint Statement referred to in your email and released following the 2021 Forum explicitly emphasises the importance of the Forum in fostering ongoing financial regulatory dialogue between the United States and European Union, and that such communication on regulatory and supervisory issues of mutual concern is necessary to support financial stability, investor protection, market integrity, and a level playing field.

To add, it is understood that communication between the EU and US participants at the Forum took place on the basis of confidence as to confidentiality in relation to the detail of discussions so as to encourage a desirable level of open engagement on topics of significant importance. It is consistent with this that while on the one hand the Joint Statement has provided a certain level of public disclosure in respect of the scope and content of discussion at the Forum, on the other hand the detail of those discussions has not been disclosed. By refraining from disclosure of the mentioned document in this instance the EBA seeks to respect the balance of the approach between disclosure and non-disclosure in relation to the participation, including the detail relating to discussions, at the 2021 Forum.

Secondly, the EBA must also refrain from giving access to the mentioned document in view of Article 4(3) of the Access to Documents Regulation, as disclosure of its contents would seriously undermine the EBA's decision-making process within the meaning of Article 4(3). As an illustration of this, the mentioned document was, as indicated above, drawn up as a preparatory document and contains opinions of EBA staff for internal use in relation to the agenda items on which EBA would staff would participate at the 2021 Forum. Disclosure of such documentation would adversely affect the EBA's ability to take decisions both on its approach to the matters which were the subject of the EBA's participation in the 2021 Forum and on how to participate most effectively in such a forum/event. In our view there is not an overriding public interest in disclosure of the document - in taking this view we bear in mind, for instance, that the Joint Statement already provides for a certain level of disclosure regarding the 2021 Forum.

The European Banking Authority strives to be transparent and open to as great an extent as possible, and we hope that the above response is of assistance to you notwithstanding that we are not making disclosure in this instance. However, should you not be satisfied with our reply, you may consider your right to a confirmatory application under Regulation (EC) No 1049/2001.

Yours sincerely,

EBA Legal and Compliance Unit

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