Regulation on European Crowdfunding Service Providers for Business, Chapter 26, Article 35, by Eugenia Macchiavello (ed.), 2022

Balancing Confidentiality and Transparency: The ECSPR Professional Secrecy Standard in Light of Cross-Sectoral EU Financial Regulation and ECJ Case Law

Professional secrecy standards strike the balance between the two conflicting interests of confidentiality and transparency. Art 35 contains a standard of professional secrecy for the supervision of crowdfunding service providers. This Chapter analyses the different elements of the provision in depth by categorising them into scope of protection, exceptions, obliged persons, and level of protection. Moreover, it compares them with other professional secrecy standards in EU financial regulation (CRD IV, MiFID II, Solvency II, SSM Regulation, SRM Regulation, ESA Regulations). The comparative analysis shows a significant divergence between the different EU legislators' regulatory approaches. As the EU Court of Justice follows a holistic approach comparing the sectoral standards, its case law is to be considered across sectoral boundaries, and also to crowdfunding services. It gives important guidance on how to understand certain elements of the professional secrecy obligations under the ECSPR. Finally, this Chapter answers open questions.