(1)

Regulation (EEC, Euratom) No 354/83 seeks to ensure that documents of historical or administrative value are preserved and made available to the public wherever possible. To that end, it lays down the obligation for each Union institution, including the European Central Bank (ECB), to establish its historical archives and open them to the public on the terms provided for by the Regulation after the expiry of a period of 30 years starting from the date of the creation of a document.

(2)

In adopting this Decision, the ECB exercises its right to hold and manage its historical archives without depositing them at the European University Institute (EUI) and lays down the internal rules necessary for applying Regulation (EEC, Euratom) No 354/83. The objective of these internal rules is to operationalise the preservation and opening to the public of the ECB’s historical archives whilst duly taking into account the ECB’s institutional particularities.

(3)

Article 1(2), point (a), of Regulation (EEC, Euratom) No 354/83 defines the term ‘archives of the institutions of the European Communities’. In view of both the highly integrated structures in which the ECB operates, namely the European System of Central Banks (ESCB) and the Eurosystem, and the transfer of functions to the ECB from bodies that worked towards completing Economic and Monetary Union (EMU), the ECB’s archives must be understood as having a broader scope than that defined in Article 1(2), point (a), of Regulation (EEC, Euratom) No 354/83. First, in accordance with the established case-law of the Court of Justice of the European Union, they encompass all documents of whatever type and in whatever medium which have originated in or been received by the ECB or the national central banks (NCBs) 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 NCBs (2). Second, they encompass all documents of whatever type and whatever medium which originated in or were received by the Committee for the Study of Economic and Monetary Union (hereinafter the ‘Delors Committee’), the Committee of Governors of the Central Banks of the Member States of the European Economic Community (hereinafter the ‘COG’), the European Monetary Cooperation Fund (EMCF) and the European Monetary Institute (EMI), and are held by the ECB.

(4)

The second sentence of Article 23.3 of Decision ECB/2004/2 of the European Central Bank (3) authorises the ECB’s decision-making bodies to make accessible to the public documents belonging to the ECB archives before the expiry of the 30-year period. On 7 May 2019, the ECB’s Governing Council decided to make accessible to the public documents that originated in or were received by the Delors Committee and were transferred from the Bank for International Settlements, which hosted most meetings of that Committee, to the ECB in 2005. On 23 January 2020, the ECB’s Governing Council decided to make accessible to the public documents that originated in or were received by the COG, the EMCF and the EMI, and are held by the ECB. This Decision implements those Governing Council decisions and the documents concerned will be made available to the public following their declassification to ‘ECB-PUBLIC’, irrespective of the expiry of the 30-year period.

(5)

Article 2 of Regulation (EEC, Euratom) No 354/83 recognises that exceptions may apply to the rule that documents of historical or administrative value be made available to the public wherever possible and refers in this context to Regulation (EC) No 1049/2001 of the European Parliament and of the Council (4). As Regulation (EC) No 1049/2001 does not apply to the ECB, exceptions to the rule that documents of historical or administrative value be made available to the public follow from Decision ECB/2004/3 of the European Central Bank (5). Article 4(6) of Decision ECB/2004/3 states that for documents covered by the exceptions relating to privacy or commercial interests, the exceptions may continue to apply after the maximum period of 30 years. For documents covered by other exceptions laid down in Article 4 of Decision ECB/2004/3, the exceptions may apply for a maximum period of 30 years unless specifically provided otherwise by the ECB’s Governing Council.

(6)

Given that documents belonging to the ECB archives and related to the performance of the tasks of the ESCB and the Eurosystem are also held by the NCBs, which may want to make such documents available to the public as part of their own historical archives or be requested to transfer them to a third party, such as a national historical archive, the internal rules necessary for applying Regulation (EEC, Euratom) No 354/83 also need to address the NCBs. As NCBs are an integral part of the ESCB and the Eurosystem, they neither qualify as Member States within the meaning of Article 6 of Regulation (EEC, Euratom) No 354/83 nor as third parties within the meaning of this Decision. It is appropriate that the ECB and the NCBs closely cooperate to ensure that the ECB historical archives are processed consistently and with the appropriate care throughout the ESCB and the Eurosystem.

(7)

Documents belonging to the ECB archives may have been transferred to a third party, such as a national historical archive, by NCBs before the entry into force of this Decision. In such cases, it is appropriate that the NCBs ensure that those third parties may not make such documents available to the public before the expiry of the 30-year period. In addition, where the ECB holds the same documents as those transferred to such third parties, NCBs must ensure that those third parties only make such of those documents available to the public after 30 years as have been declassified to ‘ECB-PUBLIC’ by the ECB. National historical archives and other national public authorities are obliged, under the principle of sincere cooperation enshrined in Article 4(3) of the Treaty on European Union and Article 18 of the Protocol on the privileges and immunities of the European Union, to act in good faith so as to preclude the premature release of ECB archives documents or the release of classified documents.

(8)

Pursuant to Regulation (EU) 2018/1725 of the European Parliament and of the Council (6), the ECB is required to provide information to data subjects on the processing of personal data concerning them and to respect their rights as data subjects. However, the ECB should balance such rights with the objectives of archiving in the public interest in accordance with data protection law.

(9)

Article 16(5), point (b), and Article 19(3), point (d), of Regulation (EU) 2018/1725 provide for exceptions to, respectively, a data subject’s right to information and right to erasure for processing data for archiving purposes in the public interest, insofar as those rights are likely to render impossible or seriously impair the achievement of the objectives of that processing. The right to information should in principle not apply in the particular context of the ECB historical archives, as the ECB would be required to make a disproportionate effort to provide information on processing once its historical archives have been made available to the public. Nonetheless, it is appropriate that data subjects be informed about the possibility that their personal data may be made publicly available as part of the ECB historical archives at the same time as they are informed about the processing operations for which their personal data have been initially collected. Also, the right to erasure should in principle not apply in the particular context of the ECB historical archives, taking into account the size and in part physical nature of the ECB archives and the nature of archiving in the public interest, insofar as the erasure of personal data contained in the ECB archives would undermine the validity, integrity and authenticity of the ECB historical archives and is therefore likely to seriously impair the achievement of the objectives of archiving in the public interest.

(10)

Article 25(4) of Regulation (EU) 2018/1725 allows the ECB the possibility to provide for derogations from the rights referred to in Articles 17, 18, 20, 21 and 23 of that Regulation, insofar as those rights are likely to render impossible or seriously impair the achievement of the purpose of archiving in the public interest and derogations are necessary for the fulfilment of such purpose. In adopting this Decision, the ECB provides for derogations from the rights referred to in Articles 17, 18, 20, 21 and 23 of Regulation (EU) 2018/1725 subject to organisational and technical safeguards required by Article 13 of that Regulation. Granting access to personal data if a data subject request does not provide specific information regarding the processing to which the request relates may involve a disproportionate effort or be practically impossible, given the size of the ECB historical archives. The rectification, erasure or restriction of processing of personal data would undermine the integrity and authenticity of the ECB historical archives and defeat the purpose of archiving in the public interest. However, in duly justified cases of inaccurate personal data, the ECB may decide to include a supplementary statement or annotation to the relevant document. Communicating any rectification, erasure or restriction of processing of personal data may involve a disproportionate effort or be practically impossible. As personal data form an integral and indispensable part of the ECB historical archives, granting the right to object to the processing of personal data contained in the ECB archives would render impossible the achievement of the purpose of archiving in the public interest.

(11)

The ECB is not to make available to the public documents containing special categories of personal data referred to in Article 10 of Regulation (EU) 2018/1725, personal data relating to criminal convictions and offences referred to in Article 11 of Regulation (EU) 2018/1725 or personal data of a child below the age of 13 years. Given the large volume of documents and the improbability of documents containing sensitive personal data having administrative or historical value, making such documents available to the public would lead to a considerable delay and therefore seriously impair the archiving process. Recital 6 of Regulation (EU) 2018/1725 states that the Regulation should not apply to the processing of personal data of deceased persons. Since in most cases the ECB cannot establish whether the data subject is deceased, it is appropriate as an additional safeguard that the period for opening an ECB historical archives document containing such sensitive personal data under Articles 10 and 11 of Regulation (EU) 2018/1725 or data relating to the privacy and the integrity of the individual under Article 4 of Decision ECB/2004/3 is set to one hundred years after the creation of that document.

(12)

The European Data Protection Supervisor was consulted in accordance with Article 41(2) of Regulation (EU) 2018/1725 and delivered an opinion on 5 October 2022. The ECB implemented the recommendations of the European Data Protection Supervisor.

(13)

The second sentence of Article 23.3 of Decision ECB/2004/2 is amended to clarify that documents belonging to the ECB archives are only freely accessible after the expiry of the 30-year period in accordance with this Decision unless the decision-making bodies decide to shorten that period, such as in the case of the documents that originated in or were received by the Delors Committee, the COG, the EMCF and the EMI, and are held by the ECB, or prolong it, such as potentially in the case of individual proceedings of the meetings of the Governing Council, should a case-by-case assessment disprove the assumption that the independence of the decision-making process of the Governing Council is no longer threatened after 30 years,

(1)

‘ECB’s predecessors’ means the Committee for the Study of Economic and Monetary Union, the Committee of Governors of the Central Banks of the Member States of the European Economic Community, the European Monetary Cooperation Fund and the European Monetary Institute;

(2)

‘ECB archives’ means:

(3)

‘ECB historical archives’ means all documents of historical or administrative value that are part of the ECB archives and have been selected for permanent preservation;

(4)

‘date of creation’ means:

(5)

‘national central bank’ or ‘NCB’ means a central bank of a Member State;

(6)

‘third party’ means any natural or legal person or any entity outside the ESCB;

(7)

‘appraisal’ means an ongoing sorting process of ECB archives to identify documents that should be preserved for historical archiving purposes;

(8)

‘preservation’ means the set of activities necessary to ensure continued access to, and to minimise the loss of information content in, documents selected to be part of the ECB historical archives;

(9)

‘classified document’ means an ECB historical archives document that has been assigned one of the four following security classifications under the ECB’s confidentiality regime (7) that does not authorise its release to the public, namely: ‘ECB-SECRET’, ‘ECB-CONFIDENTIAL’, ‘ECB-RESTRICTED’ and ‘ECB-UNRESTRICTED’;

(10)

‘declassified document’ means an ECB historical archives document that has been assigned the security classification of ‘ECB-PUBLIC’ under the ECB’s confidentiality regime;

(11)

‘personal data’ means personal data within the meaning of Article 3, point (1) of Regulation (EU) 2018/1725;

(12)

‘children’s personal data’ means personal data of children below the age of 13 years;

(13)

‘sensitive personal data’ means special categories of personal data referred to in Article 10 of Regulation (EU) 2018/1725, personal data relating to criminal convictions and offences referred to in Article 11 of Regulation (EU) 2018/1725 and children’s personal data;

(14)

‘controller’ means controller within the meaning of Article 2, point (1), of Decision (EU) 2020/655 of the European Central Bank (ECB/2020/28) (8).

(a)

where the ECB holds the same documents as those transferred to that third party and that third party carries out an appraisal of those documents, the appraisal of that third party shall be aligned with the outcome of the appraisal carried out by the ECB under Article 3;

(b)

where the ECB holds the same documents as those transferred to that third party and that third party examines the security classifications of those documents, a decision on declassification of that third party shall be aligned with the outcome of the decision on declassification taken by the ECB in compliance with Article 4(1); and

(c)

the third party shall not make declassified documents available to the public before the expiry of the 30-year period starting from the date of the creation of the documents.