Decision (EU) 2023/1610 of the European Central Bank of 28 July 2023 establishing the historical archives of the European Central Bank and amending Decision ECB/2004/2 (ECB/2023/17)

• CELEX: Decision (EU) 2023/1610
• Articles: 14

Article 1 Subject matter

This Decision lays down the rules concerning the preservation and opening to the public of the ECB historical archives.

Article 2 Definitions

For the purposes of this Decision:

(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:

(a)

all documents of whatever type and in whatever medium which have originated in or been received by the ECB or the 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; and

(b)

all documents of whatever type and in whatever medium which have originated in or been received by the ECB’s predecessors and are held by the ECB;

(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:

(a)

in the case of digital documents that are created within the ECB’s document management system, the date on which the document was last edited or on which the latest version was added;

(b)

in the case of paper documents that are placed in a physical file, the date of the most recent substantive document in the file;

(c)

in the case of paper documents that are in bound volume format, the year of the most recent substantive entry in the volume or of the most recent substantive comment or annotation, whichever is the later; and

(d)

in the case of an image, such as an architectural drawing, photograph or moving image, the date of creation or the year of the last amendment to the image or drawing, whichever is the later;

(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 ) .

Article 3 Appraisal and preservation

1.   The ECB shall carry out an appraisal to identify which ECB archives documents held by it shall be preserved and which documents have no administrative or historical value and shall be disposed of.

2.   The policy objectives of the appraisal carried out by the ECB are to identify and preserve document classes that:

(a)

provide evidence of the source of authority, foundation, organisation and functioning of the ECB and its predecessors, the ESCB, the Eurosystem, as well as any relevant Committees, Working Groups and Task Forces;

(b)

provide evidence of the activities of the ECB and its predecessors, the ESCB, the Eurosystem, as well as any relevant Committees, Working Groups and Task Forces relating to key functions and significant programmes and issues;

(c)

substantially contribute to the knowledge and understanding of the Member States whose currency is the euro and/or their institutions and their citizens; of the impact of the activities of the ECB and its predecessors and/or the ESCB and the Eurosystem on the external environment; and/or of the interaction of people and organisations with the Union institutions and bodies;

(d)

substantially contribute to the knowledge and understanding of aspects of the ECB’s and its predecessors’ corporate culture.

3.   Irrespective of the outcome of the appraisal referred to in paragraphs 1 and 2, the ECB shall hold ECB archives documents in compliance with the retention requirements set out in the ECB Filing and Retention Plan  ( 9 ) .

Article 4 Declassification

1.   The ECB shall in good time and not later than the 25 th year following the date of the creation of a classified document, examine categories of classified documents held by it in order to decide whether or not to declassify them to ‘ECB-PUBLIC’. The ECB shall re-examine ECB historical archives documents, or categories of documents, held by it which have not been declassified to ‘ECB-PUBLIC’ following the first such examination at least every five years thereafter.

2.   In accordance with Article 2(3) of Regulation (EEC, Euratom) No 354/83, before deciding to declassify and make available to the public ECB historical archives documents which, if disclosed, could undermine the commercial interests of a natural or legal person, including intellectual property, the ECB shall publish a notice in the Official Journal of the European Union to inform the persons or undertakings concerned and invite them to submit observations within a period of no less than eight weeks as specified in the notice, with a view to assessing whether the documents shall or shall not be released.

Article 5 Opening declassified documents held by the ECB to the public

1.   The ECB shall make available to the public declassified documents held by it if they originated in or were received by the ECB’s predecessors.

2.   The ECB shall make available to the public pursuant to paragraphs 3 and 4 declassified documents held by it, other than those referred to in paragraph 1, 30 years after the date of their creation.

3.   The ECB shall make accessible online, wherever possible, declassified documents referred to in paragraph 2 via the ECB’s online communications platforms.

4.   Where it is not possible to make the declassified documents referred to in paragraph 2 available online pursuant to paragraph 3, the ECB shall make them available to applicants either at the ECB’s premises or, where deemed suitable by the ECB, by releasing a digital copy of the requested documents, under the following conditions:

(a)

an application to access a declassified document is made in any written form, including electronic form, in one of the official languages of the Union in a sufficiently precise manner to enable the ECB to identify the requested documents;

(b)

documents are supplied in their latest version in the format (including electronic) and in the language(s) in which they were created.

If an application for access to a declassified document is not sufficiently precise for the purposes of point (a), the ECB shall ask the applicant to clarify it and shall assist the applicant in doing so.

Article 6 Documents concerning the performance of the tasks of the ESCB and the Eurosystem held by NCBs

1.   NCBs shall carry out an appraisal to identify which ECB archives documents held by them shall be preserved and which documents have no historical or administrative value and shall be disposed of. They shall pursue the policy objectives set out in Article 3(2) in their appraisal and respect the retention requirements referred to in Article 3(3). Where an NCB and the ECB hold the same ECB archives documents, NCBs shall align their appraisal with the outcome of the appraisal carried out by the ECB under Article 3.

2.   NCBs shall in good time, and not later than the 25 th year following the date of the creation of a classified document, examine categories of classified documents held by them in order to decide whether or not to declassify them to a level that is equivalent to the ‘ECB-PUBLIC’ classification. Where an NCB and the ECB hold the same ECB archives documents, NCBs shall align their decision on declassification with the outcome of the decision on declassification taken by the ECB in compliance with Article 4(1). NCBs shall not make declassified documents available to the public or transfer them to a third party before the expiry of the 30-year period starting from the date of the creation of a document.

Article 7 ECB archives documents concerning the performance of the tasks of the ESCB and the Eurosystem held by third parties

Where an NCB has transferred ECB archives documents to a third party, that NCB shall ensure that:

(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.

Article 8 Processing of personal data and obligations of controller

1.   The ECB may derogate from the rights of data subjects pursuant to Article 25(4) Regulation (EU) 2018/1725, insofar as is necessary to fulfil archiving purposes in the public interest and to preserve the integrity of the ECB historical archives, including in particular from the following rights:

(a)

the right of access  ( 10 ) , where the request of the data subject does not allow for the identification of specific ECB archives documents without involving disproportionate administrative effort and, in assessing the action to be taken on the request of the data subject and the administrative effort required, particular account shall be taken of the information provided by the data subject and the nature, scope, volume and size of the ECB archives documents potentially concerned;

(b)

the right to rectification  ( 11 ) , where rectification renders it impossible to preserve the integrity and authenticity of ECB historical archives documents, without prejudice to the possibility of a supplementary statement or annotation to the document concerned, unless this proves impossible or involves disproportionate effort;

(c)

the right to restriction of processing  ( 12 ) , where processing is necessary to preserve the integrity and authenticity of ECB historical archives documents and/or is in the public interest;

(d)

the obligation to notify the rectification or erasure of personal data  ( 13 ) , insofar as this proves impossible or involves disproportionate effort;

(e)

the right to object to the processing  ( 14 ) , where the personal data are contained in ECB historical archives documents as an integral and indispensable part of those documents.

2.   The ECB shall implement appropriate safeguards to ensure compliance with Article 13 of Regulation (EU) 2018/1725. Such safeguards shall include technical and organisational measures, in particular, in order to ensure respect for the principle of data minimisation. The safeguards shall include:

(a)

establishing procedures to protect personal data, such as systematically deleting and destroying files containing personal data in line with the ECB Filing and Retention Plan;

(b)

establishing controlled procedures to enable access to documents where the existence of personal data cannot be ascertained;

(c)

not releasing sensitive personal data; and

(d)

pseudonymisation and anonymisation measures.

3.   The controller is required to:

(a)

inform data subjects about the fact that documents containing their personal data may be made available to the public as part of the ECB historical archives;

(b)

consult the data protection officer prior to a decision to derogate from data subject rights in a particular case and document this consultation;

(c)

record any derogations applied pursuant to paragraph 1 as well as the reasoning that justifies the derogation;

(d)

make available any documents containing underlying factual and legal elements to the European Data Protection Supervisor upon request.

Article 9 Protection of sensitive personal data

The ECB shall not make available to the public ECB historical archives documents held by it containing sensitive personal data or data relating to the privacy and the integrity of the individual under Article 4 of Decision ECB/2004/3, including archival descriptions or authority records, before the expiry of a period of one hundred years starting from the date of creation of those documents.

Article 10 Reproduction of ECB historical archives

1.   ECB historical archives, or any descriptive information concerning such archives, released via the ECB’s online communications platforms and in accordance with this Decision shall not be reproduced or exploited for commercial purposes without the ECB’s prior specific authorisation. The ECB may withhold such authorisation without stating its reasons for doing so.

2.   This Decision shall be without prejudice to any rules on copyright which may limit a third party’s right to reproduce or exploit any released documents.

Article 11 Annual publication of information on activities

The ECB shall annually publish information on its historical archiving activities via the ECB’s online communications platforms.

Article 12 Coordination

The ECB shall establish an ECB historical archives coordination group with representatives from the ECB and the NCBs chaired by the ECB’s Information Governance Division. It shall discuss the application of this Decision with the aim of ensuring that the ECB historical archives are processed consistently and with the appropriate care throughout the ESCB and the Eurosystem. For this purpose, it shall also assist the ECB’s Information Governance Division in establishing a set of operational measures and procedures to be applied.

Article 13 Amendment to Decision ECB/2004/2

The second sentence of Article 23.3 of Decision ECB/2004/2 is replaced by the following:

‘They shall be freely accessible after the expiry of a period of 30 years starting from their date of creation in accordance with the Decision (EU) 2023/1610 of the European Central Bank (ECB/2023/17)  ( *1 ) unless the decision-making bodies decide to prolong or shorten that period.

Article 14 Entry into force

This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .