# C_2019280EN.01002002.xml

| 19.8.2019 | EN | Official Journal of the European Union | C 280/20 |
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19.8.2019

EN

Official Journal of the European Union

C 280/20

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Appeal brought on 30 April 2019 by Fabio De Masi and Yanis Varoufakis against the judgment of the Court (Second Chamber) delivered on 12 March 2019 in Case T-798/17, Fabio De Masi, Yanis Varoufakis v European Central Bank (ECB)

(Case C-342/19 P)

(2019/C 280/28)

Language of the case: German

Parties

Appellants: Fabio de Masi, Yanis Varoufakis (represented by: Professor Dr. A. Fischer-Lescano, University professor)

Other party to the proceedings: European Central Bank

Form of order sought

The appellants claim that the Court should:

| 1. | Set aside in its entirety the judgment in Case T-798/17 and uphold the application at first instance. |
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1.

Set aside in its entirety the judgment in Case T-798/17 and uphold the application at first instance.

| 2. | Order the respondent to pay the costs of the dispute in accordance with Article 184 in conjunction with Article 137 et seq. of the Rules of Procedure of the Court of Justice. |
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2.

Order the respondent to pay the costs of the dispute in accordance with Article 184 in conjunction with Article 137 et seq. of the Rules of Procedure of the Court of Justice.

Pleas in law and main arguments

At first instance, the appellants sought a declaration of invalidity under Article 263(4) TFEU of the decision of the ECB of 16 October 2017 by which access to the document of 23 April 2015 with the title ‘Answers to the question of the interpretation of Article 14.4 of the Protocol on the Statute of the ESCB and of the ECB’ was refused to them.

In support of the first head of claim, the appellants put forward four grounds:

| 1. | Failure to have regard for the primary law principle of transparency laid down in Article 15(1) TFEU, Article 10(3) TEU and Article 298(1) TFEU as well as of Article 42 of the Charter of Fundamental Rights of the European Union. The judgment under appeal disregards the fact that the requirement for transparency derives not only from secondary law, but that that secondary law must be interpreted in accordance with the transparency requirement under primary law. As a result, the Court unlawfully withdraws judicial review of the transparency requirement. |
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1.

Failure to have regard for the primary law principle of transparency laid down in Article 15(1) TFEU, Article 10(3) TEU and Article 298(1) TFEU as well as of Article 42 of the Charter of Fundamental Rights of the European Union. The judgment under appeal disregards the fact that the requirement for transparency derives not only from secondary law, but that that secondary law must be interpreted in accordance with the transparency requirement under primary law. As a result, the Court unlawfully withdraws judicial review of the transparency requirement.

| 2. | Failure to have regard for the importance of the obligation to state reasons and the corresponding standards developed by the Court of Justice of the European Union (CJEU). The judgment of the Court fails to have regard for the fact that the contested decision of the ECB entirely fails to set out the specific prejudice to the ECB. |
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2.

Failure to have regard for the importance of the obligation to state reasons and the corresponding standards developed by the Court of Justice of the European Union (CJEU). The judgment of the Court fails to have regard for the fact that the contested decision of the ECB entirely fails to set out the specific prejudice to the ECB.

| 3. | Failure to have regard for the connection between Article 4(3) of Decision 2004/258/EC (1) (Transparency exceptions: opinions for internal use) and Article 4(2) of that decision (Transparency exceptions: legal communications). The Court fails to have regard for the lex specialis nature of Article 4(2) of the abovementioned decision in relation to legal opinions and the fact that Article 4(3) of that decision is not applicable to abstract legal advice. |
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3.

Failure to have regard for the connection between Article 4(3) of Decision 2004/258/EC (1) (Transparency exceptions: opinions for internal use) and Article 4(2) of that decision (Transparency exceptions: legal communications). The Court fails to have regard for the lex specialis nature of Article 4(2) of the abovementioned decision in relation to legal opinions and the fact that Article 4(3) of that decision is not applicable to abstract legal advice.

| 4. | The judgment under appeal in general unlawfully denies an overriding public interest in the publication of the document for the purposes of Article 4(3) of the abovementioned decision.
  The application for costs is made in accordance with Article 184 in conjunction with Article 137 et seq. of the Rules of Procedure of the Court of Justice. |
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4.

The judgment under appeal in general unlawfully denies an overriding public interest in the publication of the document for the purposes of Article 4(3) of the abovementioned decision.

The application for costs is made in accordance with Article 184 in conjunction with Article 137 et seq. of the Rules of Procedure of the Court of Justice.

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(1)  Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42).

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