Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 3 September 2020 (1)

Case C‑316/19

European Commission

v

Republic of Slovenia

(Infringement proceedings – Article 343 TFEU – Privileges and immunities of the 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 – Inviolability of the archives of the ECB – Cooperation between Union institutions and Member States’ law enforcement authorities – Acting by common agreement in application of the Protocol – Search and seizure of documents at the premises of Banka Slovenije – Documents connected to the performance of the ESCB’s tasks – Article 4(3) TEU – Principle of sincere cooperation)

I.      Introduction

1.        The present infringement proceedings concern the conduct of the Slovenian law enforcement authorities in connection with the search and seizure of documents and data carriers at the premises of the Slovenian Central Bank, Banka Slovenije. The search and seizure were carried out in the context of a domestic preliminary investigation conducted against, inter alia, the former Governor of Banka Slovenije. Specifically, the investigation concerns an accusation of abuse of power in the restructuring of a Slovenian private bank in 2013, that is to say even before the creation of the European Banking Union, within the framework of which banking supervision and bank resolution were largely transferred from the national supervisory authorities – in Slovenia’s case, the central bank – to the Union. (2)

2.        The EU law dimension of the case results from the position of the national central banks within the European System of Central Banks (‘the ESCB’). In carrying out their core tasks in the area of monetary policy, the national central banks and the European Central Bank (‘the ECB’) are – in the words of the Court – ‘brought together’ and cooperate closely with each other in such a way that ‘a different structure and a less marked distinction between the EU legal order and national legal orders prevails’. (3)

3.        Against this background, the European Commission accuses the Slovenian law enforcement authorities of having disregarded the inviolability of the ECB’s archives by conducting, without the ECB’s authorisation, an extensive search and seizure operation at the premises of Banka Slovenije. That inviolability is guaranteed by the Protocol on the privileges and immunities of the European Union. (4) The Slovenian authorities take the view that this accusation constitutes undue interference in a purely national preliminary investigation.

4.        The Court’s task in the present case is therefore to resolve the tension that may exist between the interest of the Union in maintaining the ECB’s functioning and independence and the interest of the Member States in ensuring the effectiveness of their law enforcement action.

II.    Legal framework

A.      Statute of the ESCB and of the ECB

5.        Protocol No 4 to the TFEU on the Statute of the ESCB and of the ECB (‘Statute of the ESCB and of the ECB’) (5) provides the following in Article 9.2:

‘The ECB shall ensure that the tasks conferred upon the ESCB under Article 127(2), (3) and (5) of the [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.’

6.        Article 12.1 of the Statute of the ESCB and of the ECB provides:

‘The Governing Council shall adopt the guidelines and take the decisions necessary to ensure the performance of the tasks entrusted to the ESCB under these Treaties and this Statute. …

To the extent deemed possible and appropriate and without prejudice to the provisions of this Article, the ECB shall have recourse to the national central banks to carry out operations which form part of the tasks of the ESCB.’

7.        Article 14.3 of that Protocol reads:

‘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 the Statute of the ESCB and of the ECB reads:

‘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 the privileges and immunities of the European Union.’

B.      Protocol on the privileges and immunities of the European Union

9.        Article 1 of the Protocol on the privileges and immunities of the European Union 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.’

10.      Article 2 of this Protocol reads:

‘The archives of the Union shall be inviolable.’

11.      Article 18 of the Protocol on the privileges and immunities of the European Union reads as follows:

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

12.      Article 22(1) of that Protocol provides:

‘This Protocol shall also apply to the European Central Bank, to the members of its organs and to its staff, without prejudice to the provisions of the Protocol on the Statute of the European System of Central Banks and the European Central Bank.’

C.      ECB Headquarters Agreement

13.      Article 3 of the Agreement of 18 September 1998 between the Government of the Federal Republic of Germany and the European Central Bank on the Headquarters of the European Central Bank (‘Headquarters Agreement’) (6) provides as follows:

‘The inviolability of archives as laid down in Article 2 of the [Protocol on the privileges and immunities of the European Union] applies in particular to all records, correspondence, documents, manuscripts, photographs, films, sound recordings, computer programs and tapes or discs belonging to or held by the ECB, and to all information contained therein, irrespective of its location.’

III. Background to the dispute

14.      Between September 2014 and April 2015, on the basis of various indications, the Nacionalni preiskovalni urad (National Investigation Authority, Slovenia) launched a preliminary investigation against a number of senior members of the Supervisory Board of Slovenia’s national bank on suspicion of abuse of power in connection with the restructuring of a Slovenian private bank in 2013. The investigation related, inter alia, to the Governor of Banka Slovenije at the time.

15.      In the period from February to April 2015, the investigation authority, on the basis of the Slovenian Code of Criminal Procedure, asked Banka Slovenije on several occasions to provide it with certain documents and information in connection with these allegations. Banka Slovenije did not comply with these requests, at least not in full.

16.      In response, the Okrožno sodišče v Ljubljani (Ljubljana Regional Court, Slovenia) ordered a search and seizure at the premises of Banka Slovenije at the request of the Slovenian Public Prosecutor’s Office. The Governor of the Slovenian central bank opposed this course of action, referring to the Protocol on the privileges and immunities of the European Union.

17.      Nevertheless, the police searched Banka Slovenije on 6 July 2016 and seized, inter alia, the following documents and data:

–        all communications sent via the email account of the Governor of Banka Slovenije;

–        all electronic documents located in the Governor’s workspace or on his laptop and dated between 2012 and 2014, regardless of their content;

–        parts of the physical documents located in the Governor’s office and dated between 2012 and 2014;

–        all documents located on Banka Slovenije’s central IT server and relating to the Governor.

18.      On the same day, the President of the ECB formally protested against the seizure of these documents, referring to the inviolability of the ECB’s archives. In particular, he complained that the Slovenian authorities had not attempted to coordinate with the ECB before carrying out the measure.

19.      In the course of the ensuing contact between the Slovenian representative of the ECB and the Slovenian authorities responsible for the investigation, the latter took the view that a decision on any privileges and immunities that could be applicable to some of the documents seized could be taken only after they had been viewed. The ECB’s proposal to agree on a common approach for identifying the ECB’s documents in order to prevent those documents from being analysed without having been released by the ECB in advance was not accepted by the Slovenian authorities, despite those authorities having expressed a willingness to cooperate in principle. The reason for this was that the Slovenian Prosecutor-General regarded the proposal as an impermissible interference in the ongoing preliminary investigation. However, a meeting between the competent prosecutor and the representative of the ECB was scheduled for 18 November 2016 with a view to discussing the details of the cooperation.

20.      On 27 October 2016, the competent prosecutor informed the representative of the ECB that investigators would start securing electronic data in accordance with the Slovenian Code of Criminal Procedure as early as 17 November 2016 (7) and that the representative of the ECB was invited to participate in the operation.

21.      On 16 November 2016, the ECB lodged an urgent appeal with the Okrožno sodišče v Ljubljani (Ljubljana Regional Court) in order to prevent the imminent securing of the electronic documents. According to the Slovenian Government, the lawfulness of the search and seizure per se was also the subject of this appeal. In any event, Ljubljana Regional Court dismissed it the following day on the ground that the Protocol on the privileges and immunities of the European Union did not preclude seizure and securing operations.

22.      The securing of electronic documents, in particular those on the laptop of the Governor of the Slovenian central bank, also began on 17 November 2016. The representative of the ECB participated in these operations and expressly asserted that the archives of the ECB had been violated. This did not result in the exclusion of certain documents. The meeting between the competent prosecutor and the ECB’s representative, originally scheduled for 18 November 2016, was postponed indefinitely.

23.      On 17 January 2017, the ECB lodged an appeal against the decision of Ljubljana Regional Court of 17 November 2016 with the Slovenian Constitutional Court. The ECB took the view that Ljubljana Regional Court should have referred the question regarding the interpretation of the Protocol on the privileges and immunities of the European Union to the Court of Justice and, in failing to do so, violated the ECB’s fundamental right of due process.

24.      By email of 15 May 2017, the competent prosecutor informed the ECB’s representative that the police were currently evaluating the documents seized and secured and, as part of that task, had been instructed to separate from the rest of the documents all documents that had been formally and officially issued by the ECB as well as all emails sent by the ECB and received by Banka Slovenije. With regard to these documents, the ECB would then be given the opportunity to comment on the potential impact of their use in preliminary investigations and criminal proceedings on the exercise of its tasks and powers. However, Slovenia maintained its position that those documents did not originate from the ‘archives of the ECB’. In the event that the ECB had concerns about specific documents, the Slovenian authorities offered to conduct the criminal proceedings under conditions of strict confidentiality and behind closed doors if those documents proved to be indispensable for the criminal proceedings.

25.      However, the ECB maintained its position that documents of Banka Slovenije were also covered by the protection afforded by the Protocol on the Privileges and Immunities of the European Union in so far as they were produced in the performance of its tasks within the framework of the ESCB and the Eurosystem. Furthermore, all the documents covered by the protection afforded by the Protocol would have to be released by the ECB prior to their use in preliminary investigations or criminal proceedings.

26.      At a meeting between both parties on 12 June 2017, it was not possible to reach agreement on this issue.

27.      On 13 February 2018, the ECB sent the Public Prosecutor’s Office its final proposal for the identification of the documents covered by the Protocol on the Privileges and Immunities of the European Union.

28.      By decision of 19 April 2018, the Slovenian Constitutional Court dismissed the ECB’s appeal of 17 January 2017 on the ground that the ECB did not enjoy fundamental rights.

29.      At a joint meeting on 13 June 2018, the competent prosecutor informed the ECB’s representative that the police had completed their examination of the documents seized. He stated that the ECB could review the documents referred to in point 24 of this Opinion after the final police report had been drawn up. However, in order to prevent the ECB from interfering with the ongoing investigations, the documents used for the final report would not be released to the ECB until the police had handed them over to the Public Prosecutor’s Office.

IV.    Pre-litigation procedure

30.      On 28 April 2017, the Commission invited Slovenia, pursuant to Article 258 TFEU, to submit its observations on the allegation that it failed to guarantee the inviolability of the archives of the ECB in carrying out the search and seizure at the premises of Banka Slovenije on 6 July 2016 and, as a result, infringed Article 343 TFEU, Article 39 of the Statute of the ESCB and of the ECB and Articles 2 and 22 of the Protocol on the Privileges and Immunities of the European Union. Moreover, the Slovenian authorities avoided constructive discussion, thus failing to comply with their duty of sincere cooperation under Article 4(3) TEU and Article 18 of the Protocol on the privileges and immunities of the European Union.

31.      Slovenia responded by stating that the documents seized could not be subsumed under the term ‘archives of the ECB’ within the meaning of the Protocol on the privileges and immunities of the European Union. The documents were owned and held by Banka Slovenije, which was to be regarded as a ‘third party’ in relation to the ECB. Moreover, according to Slovenia, the Slovenian authorities did their utmost to take account of the legal views taken by the ECB throughout the procedure, but did not conclude that they were substantively correct. Rather, the ECB had breached its duty of sincere cooperation by attempting to prevent the securing of evidence for the purposes of the national preliminary investigation and criminal proceedings.

32.      The Commission did not share this view and sent a reasoned opinion to Slovenia on 20 July 2018, which responded to it on 11 September 2018.

V.      Forms of order sought and procedure before the Court

33.      By statement of written observations of 16 April 2019, the Commission brought the present action.

34.      The Commission asks the Court,

–        pursuant to Article 258 TFEU, to declare that, by unilaterally seizing from the premises of the Bank of Slovenia documents connected to the performance of the ESCB’s and the Eurosystem’s tasks and by unfairly cooperating with the ECB on that subject, Slovenia has failed to fulfil its obligations under Article 343 TFEU, Article 39 of the Statute of the ESCB and of the ECB, Articles 2, 18 and 22 of the Protocol on the privileges and immunities of the European Union and Article 4(3) TEU;

–        The Commission also asks the Court to order Slovenia to pay the costs.

35.      Slovenia asks the Court

–        to dismiss the action brought by the Commission.

36.      By order of 3 September 2019, the President of the Court granted leave to the ECB to intervene in support of the Commission.

37.      Slovenia, the Commission and the ECB took part in the hearing held on 22 June 2020.

VI.    Legal assessment

38.      The Commission bases its action on two pleas relating to different acts of the Slovenian law enforcement authorities.

39.      The first plea relates to the events of 6 July 2016, that is to say the actual search of the premises of Banka Slovenije and the seizure of certain documents and data carriers. (8) The Commission takes the view that, through its actions, Slovenia has failed to comply with the inviolability of the ECB’s archives which arises from Article 343 TFEU, Article 39 of the Statute of the ESCB and of the ECB, Article 2 and Article 22 in conjunction with Article 18 of the Protocol on the privileges and immunities of the European Union and has infringed Article 4(3) TEU (see Section A below).

40.      Furthermore, the Commission takes the view that the Slovenian authorities did not coordinate with the ECB to a sufficient extent both before and after the search and seizure. That conduct is the subject of the second plea, by which the Commission asserts a breach of the duty of sincere cooperation under Article 18 of the Protocol on the Privileges and Immunities of the European Union and Article 4(3) TEU (see Section B below).

A.      The legality of the search and seizure at the premises of Banka Slovenije (first plea)

41.      As regards the Commission’s first plea, the parties are in dispute, on the one hand, over the question of whether documents in the possession of a national central bank may be regarded as being covered by the protection of the ECB’s archives that is provided for in Articles 2 and 22 of the Protocol on the Privileges and Immunities of the European Union. While Slovenia takes the view that this should be ruled out from a conceptual standpoint alone, the Commission considers that such documents are also protected in so far as they are connected to the performance of the tasks of the ESCB or the Eurosystem.

42.      On the other hand, there is disagreement about the legal regime applicable to ‘archives of the ECB’. The ECB and the Commission take the view that the former must give its consent in relation to all documents covered by that concept before they can be used in national preliminary investigations or criminal proceedings. In contrast, Slovenia considers that, in any event, the ECB could oppose the seizure of documents for the purposes of the preliminary investigation and criminal proceedings only if it demonstrates that it would interfere with the functioning and independence of the ECB.

43.      It is therefore necessary to assess, as a first step, whether the protection of the ‘archives of the ECB’ as provided for in Articles 2 and 22 of the Protocol on the privileges and immunities of the European Union applies to documents held by a national central bank and, if so, what type of documents it applies to (see Section 1 below).

44.      In a second step, it is necessary to discuss which acts are specifically required or prohibited by the Protocol on the privileges and immunities of the European Union with regard to the archives of the ECB (see Section 2 below).

1.      The concept of ‘archives of the ECB’

(a)    Interpretation of Article 2 in conjunction with Article 22 of the Protocol on the privileges and immunities of the European Union

45.      Articles 2 and 22 of the Protocol on the privileges and immunities of the European Union do not define the concept of ‘archives of the ECB’.

46.      Pursuant to Article 3 of the Headquarters Agreement between the ECB and the Federal Republic of Germany, it includes ‘in particular all records, correspondence, documents, manuscripts, photographs, films, sound recordings, computer programs and tapes or discs belonging to or held by the ECB, and to all information contained therein, irrespective of its location.’

47.      The question as to the extent to which the provisions of the Headquarters Agreement can be said to have general application in the first place (9) does not need to be answered in the present case, since Article 3 of the Headquarters Agreement does not list the protected documents exhaustively, as evidenced by its wording (‘in particular’), and the Commission relies on a more extensive protection of the archives of the Union. The Commission takes the view that the inviolability of the archives of the ECB applies not only to documents ‘belonging to or held by’ the ECB, but also to documents held by and originating from a national central bank in so far as they are connected with the performance of the tasks of the ESCB.

48.      Slovenia contests that view, stating that the limitation of the protection to documents ‘belonging to or held by’ the organisation concerned was in line with general principles of international law. (10) The privileges and immunities of the Union were derived from those accorded to international organisations under international law to protect them from unjustified interference by the State in which they are registered. Since, with its increasing level of integration, the Union could no longer be regarded as a conventional international organisation, the privileges and immunities accorded to it also lost their justification and therefore had to be applied restrictively. In contrast to what was typically the case with international organisations, the Union was not in a weaker position in relation to its Member States. In any event, a document was no longer protected by Article 2 of the Protocol on the privileges and immunities of the European Union if the institution concerned communicated or transmitted that document to a national authority – such as a central bank. Transmission to third parties was to be regarded as a waiver of the privileges and immunities of the Protocol. Finally, also due to their functional character, the privileges and immunities of the Union required a restrictive interpretation.

49.      The concept of archives of the Union must be interpreted autonomously under EU law, in the light of international law. (11) According to settled case-law, that interpretation must take into account not only the wording of the provision, but also its context and its spirit and purpose. (12)

50.      It can be inferred from the interplay with Article 1 of the Protocol on the privileges and immunities of the European Union that the documents and data carriers at issue do not fall outside the scope of protection of Article 2 in conjunction with Article 22 of the Protocol simply because they were not located on the premises of the ECB. This is because all objects located on the premises of the ECB are already protected by Article 1 in conjunction with Article 22 of the Protocol. Thus, if Article 2 of the Protocol is to retain an independent scope of application of its own, it must, in principle, also cover documents and data carriers located in places other than the premises of the ECB, in so far as they are ‘archives of the Union’.

51.      With regard to Article 2 of the Protocol on the privileges and immunities of the European Union, the Court has also ruled that the scope of the inviolability of the archives of the Union is not absolute, but must be understood in functional terms. (13) Contrary to the view taken by Slovenia, however, this does give rise to a general obligation to give a restrictive interpretation to Article 2 in conjunction with Article 22 of the Protocol. Rather, it means that the scope of protection is restricted by the spirit and purpose of the immunity concerned. (14) At the same time, it follows that the scope of protection can also be determined only in the light of that purpose. (15)

52.      The purpose of the aforementioned provision is to preserve the functioning and independence of the ECB (16) – a point on which the parties to the present proceedings are in agreement. In that context, the Court ruled that the inviolability of the archives is intended in particular to prevent the disclosure of information contained in the protected documents where such disclosure would be capable of interfering with the functioning and independence of the institutions concerned, in particular by jeopardizing the accomplishment of the tasks entrusted to them. (17)

53.      However, in accordance with Article 127 TFEU, the ECB is to perform its primary task, namely maintaining price stability, (18) not alone but together with the national central banks which, together with the ECB, constitute the ESCB (see Article 282(1) TFEU).

54.      The functioning of the ESCB and the Eurosystem and the proper performance of their tasks (19) require close cooperation based on the division of labour and permanent exchange between the ECB and the national central banks. In that context, pursuant to Article 9.2. of the Statute of the ECB and of the ESCB, all tasks entrusted to the ESCB on the basis of Article 127 TFEU are to be carried out either by the ECB itself or by the national central banks. Accordingly, the Court has found that the ESCB ‘brings together’ the ECB and the national central banks and causes them to cooperate closely with each other, with the result that there is a less marked distinction between the EU legal order and national legal orders. (20)

55.      For this reason, Slovenia’s argument that the ECB relinquishes a document when it transfers or sends it to the national central banks and that such a document is therefore subsequently no longer protected by Articles 2 and 22 of the Protocol on the privileges and immunities of the European Union must be rejected. This is because, in so far as the document is connected with the activities of the ESCB, its disclosure to a national central bank does not remove it from the framework of the ESCB. However, as long as a document remains within the prescribed framework of the ESCB, it must in principle also be covered by the system of protection provided for by the Protocol on the privileges and immunities of the European Union for archives of the ECB.

56.      In this respect, disclosure to ‘third parties’ cannot come into consideration either. It is true that the central banks and their governors are also national authorities. However, with regard to the ESCB, they have a dual professional role. (21) In this respect, the national central banks are not comparable with Member State authorities entrusted with the implementation of EU law in other areas. Instead, pursuant to Article 14.3 of the Statute of the ECB and of the ESCB, the national central banks are an ‘integral part’ of the ESCB. Pursuant to Article 283(1) TFEU, the Governor of the central bank of a Member State whose currency is the euro is also a member of the Governing Council of the ECB.

57.      Thus, if the protection of the ECB’s archives in the context of the ESCB were to be limited to documents originating from or at least held by the ECB – to the exclusion of all those held by or originating from the national central banks – a large number of documents whose disclosure could jeopardise the proper performance of the tasks of the ESCB or the Eurosystem would be excluded from that protection. The inviolability of the archives of the ECB would therefore be unable to fulfil its function.

58.      This is all the more true given that certain monetary policy measures require a particularly high level of confidentiality in respect of certain information, which may also, or even primarily, be owned and held by the national central banks. This can be illustrated by the example of the ESCB’s Public Sector Purchase Programme (PSPP), for instance, within the framework of which in particular primarily the national central banks of the Eurosystem purchase securities, in particular government bonds, on the secondary markets. The functioning of this programme requires that the exact key and the volume of purchases of government bonds of certain Member States on the secondary markets are not known. (22) However, this information can most likely also be found in documents owned and held by the national central banks concerned.

59.      Moreover, Slovenia’s argument that the importance of the privileges and immunities of the institutions of the Union diminishes as the level of integration of the Union increases cannot be accepted either, at least with regard to the institutions of the ESCB and the Eurosystem. The reason for this is that the independence of the ECB, which is precisely what Article 343 TFEU, Article 39 of the Statute of the ESCB and of the ECB and the Protocol on the privileges and immunities of the European Union are intended to protect, does not originate solely from the Union’s status as an international organisation. Rather, according to the concepts underlying the Treaties, this independence is an indispensable condition for ensuring price stability and specifically requires the independence of the institutions entrusted with that task. (23) The requirement of independence therefore also applies to the national central banks pursuant to Article 130 TFEU.

60.      Consequently, the concept of archives must cover all documents created, processed and transmitted by the ECB or by the national central banks in connection with the performance of the tasks of the ESCB and the Eurosystem, irrespective of whether they are held by the ECB or the national central banks.

61.      In that regard, the closeness of the connection between a document and the performance of the tasks of the ESCB is not yet relevant when qualifying that document as part of the archives. This is because, contrary to the view taken by Slovenia, if the disclosure of the information contained in a document does not threaten to interfere with the functioning or independence of the ECB due to its minor importance for the activities of the ESCB, this does not mean that such a document should not be regarded as part of the ‘archives of the ECB’. Rather, this functional requirement concerns the scope of the immunity in each specific case, (24) which will have to be investigated in a second step (see Section 2 just below).

(b)    Whether ‘archives of the ECB’ are affected in the present case

62.      It is settled case-law that, in proceedings for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. (25) In the context of the present case, this means that the Commission first has to prove that the documents seized by the Slovenian law enforcement authorities on 6 July 2016 included documents connected with the performance of the tasks of the ESCB. In that regard, it is in principle not sufficient for the Commission to rely on any presumption. (26)

63.      In the present case, however, there is the special situation in which all the documents at issue are already in the possession of the Slovenian law enforcement authorities. The Commission is therefore unable to determine with certainty which individual documents have been seized.

64.      However, it is common ground that, during the search, all communications sent via the email account of the of Banka Slovenije and all electronic documents located in the Governor’s workspace or on his laptop and dated between 2012 and 2014 were seized, amongst other things. These documents must inevitably include those connected with the performance of the tasks of the ESCB. This is because, pursuant to Article 283(1) TFEU, the Governor of Banka Slovenije is a member of the Governing Council of the ECB, which, in turn, governs the ESCB pursuant to Article 129(1) TFEU and takes all decisions necessary to ensure its functioning. (27)

65.      In this situation, it is incumbent on Slovenia to contend in substance that documents connected with the performance of the tasks of the ESCB are affected. (28) However, as Slovenia submits that the competent authorities were not even able to identify these documents, it can be assumed that ‘archives of the ECB’ were also affected by the search and seizure at the premises of Banka Slovenije premises on 6 July 2016.

2.      Existence of an infringement of the Protocol on the privileges and immunities of the European Union

(a)    Functional character of the privileges and immunities of the European Union

66.      However, the mere finding that the seizure in any event also affected documents that can be subsumed under the concept of ‘archives of the ECB’ does not yet give rise to an infringement of immunity. Rather, it is necessary to clarify, in a next step, what is meant by ‘inviolability’ of the archives of the ECB and under what circumstances an infringement of the Protocol on the privileges and immunities of the European Union is to be assumed.

67.      Article 2 of the Protocol on the privileges and immunities of the European Union does not provide a precise definition of the concept of ‘inviolability’. However, with regard to the premises and buildings of the Union, which, pursuant to the first sentence, are also ‘inviolable’, the second sentence of Article 1 of the Protocol makes clear that they are ‘exempt from search, requisition, confiscation or expropriation’.

68.      These examples of prohibited acts must, in principle, also apply to Article 2 of the Protocol on the privileges and immunities of the European Union. It is not clear why the term ‘inviolability’ in Article 2 of the Protocol should have a meaning different from that in Article 1. In this respect, the case-law of the Court confirms that, when interpreting a provision of the Protocol, account must be taken of the wording and principles of its other provisions. (29)

69.      Slovenia takes the view that, nevertheless, the seizure of the documents concerned in the specific circumstances of the present case does not constitute a violation of the archives of the ECB. Such a violation could be assumed only if it were to impair the functioning or independence of the ECB.

70.      In support of its view, Slovenia essentially relies on the functional character of the immunity contained in Article 2 in conjunction with Article 22 of the Protocol on the privileges and immunities of the European Union. (30) In the case of functional immunity, the disclosure of such documents is to be ruled out only if it is liable to interfere with the functioning and independence of the Union body. (31) Moreover, according to the case-law of the Court, the bodies and institutions of the Union are in principle obliged to assist the authorities of the Member States in criminal investigations where they relate to information concerning facts in the possession of those bodies of the Union, for example by providing them with the relevant documents.

71.      Slovenia concludes from this that, in the present case, the inviolability of the archives of the ECB could be invoked against the investigative measures taken by the Slovenian authorities only in so far as the seizure of the documents in question for the purposes of the preliminary investigation and criminal proceedings was liable to interfere with the functioning and independence of the ECB. However, neither the ECB nor the Commission had provided evidence of this.

72.      By contrast, these two institutions state that, according to the general scheme of privileges and immunities, access by the law enforcement authorities of the Member States always required, in principle, the consent of the body concerned. (32) If the latter refused authorisation, a ruling from the Court would be required. According to its case-law, this also applied to access to the archives of the Union. (33) However, since the Slovenian authorities neither obtained authorisation from the ECB nor referred the matter the Court, the search and seizure of the documents concerned infringed the archives of the ECB. It was therefore irrelevant whether there is any interference with the functioning or independence of the ECB.

73.      I am of the opinion that this view would not be compatible with the purely functional character of the privileges and immunities of the European Union. At the same time, however, the authorities of the Member States can also not be permitted to carry out seizures without regard to any privileges and immunities that the EU institutions may have, as long as it is subsequently established that the documents concerned did not contain any information that was liable to interfere with the performance of the tasks of those institutions. This outcome would, in turn, be inconsistent with the objective of ensuring that the EU institutions have full and effective protection against hindrances or risks to their proper functioning and independence. (34)

74.      This tension can be resolved by distinguishing between substantive and procedural infringements of the Protocol on the privileges and immunities of the European Union.

75.      Substantively, Articles 2 and 22 of the Protocol protect the functioning and independence of the ECB. However, in order to ensure that this protection is full and effective, it must be supplemented by procedural safeguards in certain situations.

76.      Therefore, pursuant to Article 18 of the Protocol on the privileges and immunities of the European Union, the institutions and the Member States must cooperate for the purpose of applying the Protocol. In this respect, the provision gives concrete expression to the principle of sincere cooperation under Article 4(3) TEU. (35) For the EU institution concerned, the Court has derived from this provision a duty to disclose documents in so far as there is no risk of interference with the functioning or independence of that institution. (36) Correspondingly, the authorities of the Member State are in principle obliged to obtain such a disclosure decision if they wish to access archives of the Union, in this case documents connected with the performance of the tasks of the ESCB. (37)

77.      This obligation provides a procedural safeguard for the functioning and independence – which are substantively protected by Article 2 of the Protocol – of the EU institutions. This is because it ensures that the EU institutions concerned can actually exercise their rights under the Protocol. If the Member State authorities wishing to access certain documents or data do not engage in exchange with the EU bodies concerned, the latter are unable to assess the extent to which their functioning and independence could be affected by this request and what precautions they might have to take to prevent or minimise such interference. This is particularly true in a situation such as the present one, in which the documents in question are not in the possession of the EU institution concerned.

78.      The Commission’s allegation concerns precisely this procedural aspect of the protection of the archives of the Union. This is because, in essence, it accuses the Slovenian law enforcement authorities of having acted without coordinating with the ECB beforehand. On the other hand, the allegation does not relate to a specific interference with the functioning or independence of the ECB.

79.      It is true that the effectiveness of certain investigative measures could be jeopardised by the obligation to coordinate with the relevant EU bodies in advance, as rightly pointed out by the Slovenian Government. However, this may have to be accepted in the context of the balancing of conflicting interests that is inherent in the provisions of the Protocol on privileges and immunities of the European Union. The interests of the law enforcement authorities of the Member States are taken into account by virtue of the fact that the EU institution concerned is itself fully subject to the duty of sincere cooperation. (38) This includes appropriate measures for protecting the interests of the investigation. Moreover, its decision is fully subject to review by the Court. (39)

80.      In this respect, the second order of the Court in the Zwartveld case shows that general or sweeping allegations cannot justify a refusal to disclose documents. (40) This ensures that the EU bodies do not unduly or arbitrarily interfere with criminal measures of the Member States. Slovenia’s concerns that any form of connection between central bank documents and the tasks of the ESCB could preclude any access by the national authorities and thus completely frustrate their investigations are therefore unfounded.

81.      Moreover, it is not apparent that the seizure was carried out on 6 July 2016 by taking advantage of a surprise effect. On the contrary, Banka Slovenije was already aware, through its previous contact with the Slovenian law enforcement authorities, that they were seeking access to certain documents.

82.      An infringement of the procedural safeguards in respect of the protection of the archives of the Union therefore does not require that an interference with the functioning and independence of the EU body concerned has already been substantively demonstrated. (41)

83.      In this respect, this differentiation between procedural and substantive infringements of the Protocol may, under certain circumstances, have an impact on the use of evidence. Indeed, the question of whether a document is admissible as evidence in national criminal proceedings may well depend on whether it was obtained by means of a substantive infringement of the privileges and immunities of the European Union or by means of a violation of the procedural aspect of immunity. (42)

84.      Since it is established in the present case that the Slovenian law enforcement authorities carried out the search and seizure on 6 July 2016 unilaterally and without prior coordination with the ECB and also without obtaining a decision from the Court, they have infringed Articles 2 and 22 in conjunction with Article 18 of the Protocol on the privileges and immunities of the European Union.

(b)    In the alternative: evidence of an interference with the functioning and independence of the ECB

85.      Even though the Commission’s first plea is already successful for the reasons set out above, it may be decisive, in the further course of the dispute between the ECB and Slovenia, whether the seizure also resulted in a substantive violation of immunity. In this context, the question then arises as to the evidence of an interference with the functioning or independence of the ECB.

86.      If the Court were to follow Slovenia’s view that the very qualification of a document as part of the ‘archives of the ECB’ requires that there is a possibility of interference with the functioning and independence of the ECB, (43) that question would be material even for the purposes of the present proceedings.

87.      In this respect, it follows from the orders of the Court in the Zwartveld case that, in principle, it is for the EU institution concerned to demonstrate to what extent the disclosure of the information contained in the documents concerned interferes with the functioning and independence of the EU and jeopardises the accomplishment of the tasks entrusted to the institution concerned. (44)

88.      However, the aforementioned problem that the documents seized are in the possession of the Slovenian law enforcement authorities, and consequently neither the ECB nor the Commission knows which individual documents are concerned, arises in this respect, too. (45) However, knowledge of the documents and their content is essential in order to be able to assess whether disclosure of the information contained in them would interfere with the functioning and independence of the ECB.

89.      In this context also, recourse to Article 18 of the Protocol on the privileges and immunities of the European Union is necessary. That provision obliges Member States to cooperate with the EU bodies in order to ensure the proper application of the Protocol. Specifically, the Slovenian authorities must therefore allow the identification of the documents that are to be regarded as ‘archives of the ECB’ and give the ECB the opportunity to comment on those documents.

90.      Similarly, according to the case-law, Article 4(3) TEU obliges a Member State, in the context of an infringement procedure, to provide the Commission with all the information enabling it to assess the existence of an infringement. (46) As has already been explained, the duty of sincere cooperation may even lead to a situation in which it is incumbent on the Member State to challenge in substance and in detail the information produced by the Commission and the consequences flowing therefrom, if the Commission has provided sufficient evidence of the existence of an infringement by that Member State. (47)

91.      However, not every advantage in terms of information on the part of the defendant Member State can lead to such a reversal of the burden of proof. Rather, a deviation from the allocation of the burden of proof must appear to be justified by the overall circumstances of the case, the nature of the fact to be proven and the relevant EU law. (48)

92.      I am of the opinion that a reversal of the burden of proof is not appropriate with regard to interference with the functioning of the ESCB in the present case. Rather, the ECB should specifically demonstrate why the disclosure of the information contained in certain documents could jeopardise the accomplishment of the tasks of the ESCB. (49) However, the ECB can provide such evidence only if the Slovenian authorities cooperate with it and provide it with all the information enabling it to carry out such an assessment. Moreover, that necessity underlines the requirement to establish, in the present case, an infringement of EU law solely on the basis of the violation of the procedural aspect of the immunity.

B.      The duty to coordinate with the ECB before and after the search and seizure (second plea)

93.      By its second plea, the Commission accuses Slovenia of breaching its duty of sincere cooperation under Article 18 of the Protocol on the privileges and immunities of the European Union and Article 4(3) TEU, as the Slovenian law enforcement authorities did not engage in ‘constructive dialogue’ with the ECB. In essence, the Commission accuses the Slovenian authorities of not sufficiently coordinating with the ECB, either before or after the search and seizure of the documents, in order to minimise the interference with their functioning and independence.

94.      The content of the second plea overlaps with that of the first plea as regards the conduct of the Slovenian authorities prior to the search and seizure at the premises of Banka Slovenije. The reason for this is that the allegation raised in the context of the first plea relates precisely to the unilateral action of the Slovenian law enforcement authorities in the search and seizure, that is to say the lack of prior coordination with the ECB. In this respect, it has already been established that this is to be regarded as an infringement of Article 18 of the Protocol on the privileges and immunities of the European Union. (50)

95.      Consequently, it remains to be examined whether obligations arise from Article 18 of the Protocol with regard to the period after the actual search and seizure and, if they do, which obligations arise.

96.      According to settled case-law, Article 4(3) TEU requires the Member States to take all appropriate measures, whether general or particular, to guarantee the application and effectiveness of EU law. (51)

97.      Article 18 of the Protocol on the privileges and immunities of the European Union, which gives concrete expression to Article 4(3) TEU in that regard, obliges the EU institutions and the authorities of the Member States to cooperate in order to avoid any conflict in the interpretation and application of the provisions of the Protocol. (52) This duty is, by its very nature, reciprocal. (53) If it is necessary to balance conflicting interests in this respect – as is the case here – that duty implies that each side must exercise its own powers carefully in order to impair the legitimate interests of the other side as little as possible. (54)

98.      In order for the ECB to be able to exercise its rights under the Protocol in the first place, Slovenia must first enable the identification of those documents that are to be regarded as part of the ‘archives of the ECB’ and give the ECB the opportunity to comment on them with regard to a possible interference with its functioning and independence. (55) In that context, the ECB would then have to provide specific reasons explaining why those documents should not be used in the national preliminary investigation or criminal proceedings.

99.      In order to minimise the threat of interference while not unduly delaying the progress of the investigations, both sides must contribute to ensuring a prompt examination. In this connection, Slovenia pointed out that the ECB allowed more than six months to pass before communicating its criteria for the identification of protected documents to the Slovenian authorities. (56) The ECB was unable to explain this delay at the hearing. However, the Slovenian authorities actually offered the ECB the opportunity to comment only with regard to the documents referred to in point 24 of this Opinion. Instead of refusing to carry out an examination with regard to all the other documents, either the examining judge – following the example of the Zwartveld case – or the court hearing the ECB’s appeal (57) should have referred the matter to the Court of Justice in order to determine the scope of the protection afforded by Articles 2 and 22 of the Protocol on the privileges and immunities of the European Union. (58)

100. The offer of the Slovenian authorities to conduct the national criminal proceedings under strict conditions of confidentiality or in camera, for instance, does not mean that it is no longer necessary to fulfil that obligation. It is true that these may well be aspects to be taken into account when assessing the question of whether the use of certain documents in national criminal proceedings threatens to interfere with the functioning and independence of the ECB. If Slovenia takes a different view on this issue, however, it must obtain a decision from the Court and cannot unilaterally decide to use the documents concerned in criminal proceedings.

101. In this context, it also follows from the case-law of the Court that only the disclosure of documents relevant for the purposes of the national preliminary investigation or criminal proceedings may actually be requested. (59)

102. It follows for the purposes of the present proceedings that, at the latest when securing the seized documents, the Slovenian authorities should have confined themselves to those documents which are necessary for the purposes of the national preliminary investigation. This applies at least in so far as it cannot be ruled out that a particular document may affect the ECB’s interests worthy of protection, and, once again, it is for the ECB to demonstrate this. (60) With a view to exercising their own powers in a careful manner, (61) the Slovenian authorities should have immediately returned all documents that could be regarded as archives of the ECB and have no relevance to these proceedings. It should also be noted in that context that, according to settled case-law, the duty of sincere cooperation also requires the unlawful consequences of an infringement of EU law to be nullified. (62)

103. However, prior to the point at which the Commission brought its action, the Slovenian authorities did not state which documents they had used or intended to use for the purposes of the preliminary investigation and criminal proceedings, and for what reasons, nor did they release to Banka Slovenije or the ECB the documents forming part of the archives of the ECB that were not needed.

104. It follows from the above considerations that Slovenia has also infringed Article 18 of the Protocol on the privileges and immunities of the European Union due to its conduct after the search and seizure at the premises of Banka Slovenije.

VII. Costs

105. Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Slovenia has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission. Pursuant to Article 140(1) of the Rules of Procedure of the Court of Justice, which provides that Member States which have intervened in the proceedings are to bear their own costs, the ECB must be ordered to bear its own costs. (63)

VIII. Conclusion

106. In the light of all the foregoing considerations, I propose that the Court should rule as follows:

1.      The Republic of Slovenia

–        has breached its obligations under Article 2 and Article 22 in conjunction with Article 18 of Protocol No 7 on the privileges and immunities of the European Union by virtue of the fact that, on 6 July 2016, the Slovenian law enforcement authorities seized, from the premises of Banka Slovenije, inter alia all communications sent via the email account of the Governor of Banka Slovenije and all electronic documents located in the Governor’s workspace or on his laptop and dated between 2012 and 2014, without coordinating with the ECB in advance or obtaining a decision from the Court,

–        has also breached its obligations under Article 18 of Protocol No 7 on the privileges and immunities of the European Union by virtue of the fact that, following the seizure, it did not enable the ECB to identify documents connected with the performance of the tasks of the ESCB in order to give the latter the opportunity to comment on any possible interference with its functioning and independence, nor did it state reasons explaining which documents were essential for the purposes of national criminal proceedings and preliminary investigation, nor did it return all other documents to be qualified as archives of the ECB.

2.      The Republic of Slovenia is ordered to pay the costs.

3.      The ECB is ordered to bear its own costs.

1      Original language: German.

2      The transfer was brought about via the creation of a Single Supervisory Mechanism (SSM), headed by the ECB, or its newly established Supervisory Board, and a Single Resolution Mechanism (SRM), led by the Single Resolution Board (SRB).

3      Judgment of 26 February 2019, Rimšēvičs and ECB v Latvia (C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 69).

4      Protocol No 7 to the TFEU on the privileges and immunities of the European Union (‘Protocol on the privileges and immunities of the European Union’), OJ 2016 C 202, p. 266.

5            OJ 2016 C 202, p. 230.

6      BGBl. 1998 II, p. 2744.

7      This essentially refers to the creation of an electronic copy.

8      See points 16 and 17 of this Opinion.

9      See, in relation to this question, Opinion of Advocate General Jääskinen in the Feyerbacher case (C‑62/11, EU:C:2012:305, point 43 et seq.).

10      In this connection, Slovenia cites in particular Article 2(4) of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 and the Convention on the Privileges and Immunities of the Specialized Agencies of the United Nations of 21 November 1947, and to Article 5 of the General Agreement on Privileges and Immunities of the Council of Europe, concluded in Paris on 2 September 1949.

11      See, to that effect, judgments of 9 October 1973, Muras (12/73, EU:C:1973:100, paragraph 7); of 14 January 1982, Corman (64/81, EU:C:1982:5, paragraph 8), and of 30 January 2014, Diakite (C‑285/12, EU:C:2014:39, paragraph 27). Regarding the autonomous interpretation of Article 3 of the Protocol on the privileges and immunities of the European Union, see judgments of 28 March 1996, AGF Belgium (C‑191/94, EU:C:1996:144, paragraph 16), and of 22 March 2007, Commission v Belgium (C‑437/04, EU:C:2007:178, paragraphs 44 to 46).

12      Judgments of 19 September 2000, Linster (C‑287/98, EU:C:2000:468, paragraph 43); of 2 September 2010, Kirin Amgen (C‑66/09, EU:C:2010:484, paragraph 41), and of 3 October 2013, Zentrale zur Bekämpfung unlauteren Wettbewerbs (C‑59/12, EU:C:2013:634, paragraph 25).

13      Order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraphs 19 and 20).

14      Order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 20).

15      See, to that effect, in respect of parliamentary immunity, judgment of 6 September 2011, Patriciello (C‑163/10, EU:C:2011:543, paragraph 29).

16      See order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 19). See, regarding the protection of the property and assets of the Union, orders of 11 May 1971, X v Commission (1/71 SA, EU:C:1971:48, paragraphs 3 to 5 and 6 to 8), and of 24 November 2005, Gil do Nascimento and Others v Commission (C‑5/05 SA, not published, EU:C:2005:723, paragraph 11), and judgment of 30 May 2018, Dell’Acqua (C‑370/16, EU:C:2018:344, paragraph 34).

17      Order of 6 December 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:440, paragraph 11).

18      Judgments of 10 July 2003, Commission v ECB (C‑11/00, EU:C:2003:395, paragraph 92), of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 43), and of 11 December 2018, Weiss and Others (C‑493/17, EU:C:2018:1000, paragraph 51).

19      As those Member States whose currency is not the euro retain their powers in monetary matters in accordance with Article 282(4) TFEU, the monetary policy of the Union is ultimately defined and implemented by the Eurosystem, that is to say the ECB and the central banks of the Member States whose currency is the euro.

20      See, to that effect, judgment of 26 February 2019, Rimšēvičs and ECB v Latvia (C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 69).

21      Judgment of 26 February 2019, Rimšēvičs and ECB v Latvia (C‑202/18 and C‑238/18, EU:C:2019:139, paragraph 70).

22      See, in this regard, judgment of 16 June 2015, Gauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 106).

23      See, in this regard, Opinion of Advocate General Jacobs in the Commission v ECB case (C‑11/00, EU:C:2002:556, point 150) and my Opinion in the Rimšēvičs v Latvia and ECB v Latvia cases (C‑202/18 and C‑238/18, EU:C:2018:1030, points 5 and 76). Regarding the connection between the independence of the ECB and the objective of price stability, see also the draft Treaty amending the Treaty establishing the European Economic Community with a view to establishing economic and monetary union, Communication of the Commission of 21 August 1990, Bulletin of the European Communities, supplement 2/91, in particular pages 14, 20 and 58.

24      See, to that effect, order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 20).

25      Judgments of 12 December 2002, Commission v Germany (C‑209/00, EU:C:2002:747, paragraph 38), of 4 September 2014, Commission v France (C‑237/12, EU:C:2014:2152, paragraph 32), and of 9 July 2015, Commission v Ireland (C‑87/14, EU:C:2015:449).

26      Judgments of 12 December 2002, Commission v Germany (C‑209/00, EU:C:2002:747, paragraph 38), of 15 March 2012, Commission v Cyprus (C‑340/10, EU:C:2012:143, paragraph 53), and of 4 September 2014, Commission v France (C‑237/12, EU:C:2014:2152, paragraph 32).

27      See also Article 12.1. of the Statute of the ESCB and of the ECB.

28      Judgments of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 44), of 2 December 2010, Commission v Portugal (C‑526/09, EU:C:2010:734, paragraph 22), and of 18 October 2012, Commission v United Kingdom (C‑301/10, EU:C:2012:633, paragraph 72).

29      Order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 20).

30      Slovenia refers, in that regard, to the order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraphs 19 and 20).

31      Order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 25).

32      See, regarding parliamentary immunity, Article 9(3) of the Protocol on the privileges and immunities of the European Union; see, regarding the release of assets and property of the Union, judgment of 29 April 1993, Forafrique Burkinabe v Commission (C‑182/91, EU:C:1993:165, paragraph 14), and order of 24 November 2005, Gil do Nascimento and Others v Commission (C‑5/05 SA, not published, EU:C:2005:723, paragraph 14).

33      The Commission and the ECB refer, in that regard, to the order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraphs 22 to 24).

34      Judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraph 82).

35      Judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraph 41).

36      Order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraphs 21 and 22).

37      In this context, Article 4(3) TEU emphasises the reciprocity of the obligations, see judgment of 16 October 2003, Ireland v Commission (C‑339/00, EU:C:2003:545, paragraph 72).

38      Order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 21).

39      See, to that effect, orders of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 24), and of 6 December 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:440, paragraph 7).

40      Order of 6 December 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:440, paragraph 11).

41      Accordingly, the Court has ruled that an attachment of Union assets without the latter having been released in advance by either the institution concerned or the Court infringes the Protocol, irrespective of whether the attachment interferes with the functioning and independence of the institution concerned; see judgment of 29 April 1993, Forafrique Burkinabe v Commission (C‑182/91, EU:C:1993:165, paragraph 14).

42      Although it is for the national courts alone to assess the effects of privileges and immunities enjoyed under EU law in national criminal proceedings, in so doing they must take due account of EU law and, in particular, Article 4(3) TEU; see judgment of 19 December 2019, Junqueras Vies (C‑502/19, EU:C:2019:1115, paragraph 93).

43      See, in this regard, point 61of this Opinion.

44      Orders of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 25), and of 6 December 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:440, paragraph 11).

45      See, in that regard, point 63 of this Opinion.

46      See, to that effect, judgment of 12 December 2002, Commission v France (C‑209/00, EU:C:2002:747, paragraphs 39 to 43).

47      See, in this regard, 65of this Opinion.

48      See, on this point, the Opinion of Advocate General Stix-Hackl in the Germany v Commission case (C‑441/02, EU:C:2005:337, points 52 to 55).

49      See, regarding this standard, point 52 of this Opinion.

50      See points 76 to 84 of this Opinion.

51      Judgments of 7 October 2010, Stils Met (C‑382/09, EU:C:2010:596, paragraph 44), of 5 December 2017, Germany v Council (C‑600/14, EU:C:2017:935, paragraph 94), and of 31 October 2019, Commission v Netherlands (C‑395/17, EU:C:2019:918, paragraph 95).

52      Judgment of 21 October 2008, Marra (C‑200/07 and C‑201/07, EU:C:2008:579, paragraphs 41 and 42).

53      Judgment of 16 October 2003, Ireland v Commission (C‑339/00, EU:C:2003:545, paragraph 72).

54      See, to that effect, judgment of 10 February 1983, Luxembourg v Parliament (230/81, EU:C:1983:32, paragraphs 37 and 38).

55      See, in this regard, points 89 and 92of this Opinion.

56      Cf. the period referred to in points 26 and 27 of this Opinion.

57      See, in this regard, points 21 and 23 of this Opinion.

58      See, to that effect, order of 13 July 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 24).

59      See, to that effect, order of 6 December 1990, Zwartveld and Others (C‑2/88‑IMM, EU:C:1990:440, paragraphs 7 and 8).

60      See in this regard point 98 of this Opinion.

61      See point 97 of this Opinion.

62      Judgment of 31 October 2019, Commission v Netherlands (C‑395/17, EU:C:2019:918, paragraph 98).

63      See, analogously, judgment of 27 March 2019, Commission v Germany (C‑620/16, EU:C:2019:256, paragraph 101).

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