The Bottom Line
- Regulatory Secrecy is Powerful: Financial regulators like the Dutch Central Bank (DNB) operate under a strict duty of confidentiality. This case confirms that information gathered during supervision is heavily protected from public disclosure, even when referenced in public enforcement decisions.
- High Bar for Forced Disclosure: Courts are extremely reluctant to grant interim orders that force the release of confidential documents. Doing so creates an irreversible situation, and judges will only consider it if the case for disclosure is almost certain to succeed in the main proceedings.
- Strategic Litigation Limited: This ruling serves as a caution to activist groups and other parties. Using preliminary injunctions as a tool to gain early access to a regulator’s internal findings or communications is an uphill battle that is unlikely to succeed.
The Details
This case began when the foundation “Human Rights in Finance.EU” requested access to specific documents from the Dutch Central Bank (DNB). The foundation sought a 2018 “findings letter” and an internal DNB memo related to a formal instruction issued to Triodos Bank. The DNB refused to disclose the documents, citing its statutory duty of confidentiality under the Financial Supervision Act (Wft) and anti-money laundering regulations (Wwft). The foundation challenged this refusal and, while that challenge is pending, asked the court for a preliminary injunction to force immediate disclosure.
The District Court of Rotterdam firmly rejected the request, centering its decision on the principle of irreversible consequences. The judge reasoned that ordering the DNB to release the documents would not be a “preliminary” measure but a final one. Once confidential information is made public, its secrecy cannot be restored. A court will only take such a drastic step in an interim proceeding if the petitioner’s right to the information is ‘beyond reasonable doubt‘. In this instance, the DNB’s legal basis for confidentiality was substantial, meaning the outcome of the main case was far from certain.
Furthermore, the court found no compelling or urgent interest that would justify such an extraordinary order. The foundation argued it needed the documents to prepare for an upcoming administrative hearing and for separate legal battles against the Dutch Authority for the Financial Markets (AFM). The court was unconvinced, stating that neither reason constituted a sufficiently weighty interest to override the regulator’s confidentiality obligations and preempt the standard legal process. This decision underscores the significant deference courts give to the statutory secrecy frameworks governing financial supervision.
Source
Rechtbank Rotterdam
