Judgment;Information — ECLI:EU:T:2024:783
Date: 2024-11-06
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Economic and monetary policy
Procedure: Action for annulment - unfounded
Origin: Austria

summary or aggregate form such that credit institutions cannot be identified. That principle is accompanied by two derogations enabling the disclosure of confidential information, first, in cases covered by criminal law, second, in cases relating to civil or commercial proceedings subject to the twofold condition, in the case of those commercial or civil proceedings, that the credit institution concerned by the confidential information has been declared bankrupt or is being compulsorily wound up and that the confidential information does not concern third parties involved in attempts to rescue that credit institution. 67 In the present case, the information redacted from the FOLTF assessment consists in information concerning the liquidity situation of Sberbank Slovenia on different dates, the clients of that establishment, the actions taken by that establishment in order to prepare for any economic sanctions, the rescue measures identified by that establishment and the ECB’s assessment concerning them, the information on access to ECB financing, the content of two letters of the applicant addressed to the ECB, the estimated lifetime of Sberbank Slovenia in view of outflows, the measures taken by that establishment aimed at improving its liquidity position and supervisory measures taken by the ECB. That information is all prudential information and has mostly been obtained by the ECB in the context of exchanges of information with the supervised entity and the national supervisory authorities. As such, it is covered by Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 which concern professional secrecy and the exchange of information in the exercise of supervisory functions. 68 Both Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 prohibit the competent authorities and their staff from disclosing information covered by professional secrecy, as well as confidential information in their possession other than in summary or aggregate form preventing any identification of the entities concerned. 69 The ECB could therefore rely on its professional secrecy obligations under Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 in refusing to grant access based on Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law and, pursuant to those provisions, check that the two conditions set out in the judgment in Baumeister were satisfied in respect of each item of information to which access was requested, knowing that if those conditions were satisfied, it must refuse access to the information at issue (see, by analogy, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196), as it has done. 70 In those circumstances, the applicant’s arguments according to which Article 27 of Regulation No 1024/2013 is not the article which governs FOLTF assessments of supervised entities, Directive 2013/36 is addressed to the Member States and the said Article 27 and Article 53 of that directive concern only the staff of the competent authorities, cannot succeed. As the ECB confirmed at the hearing, the redacted information was retrieved and exchanged in the context of the supervision of Sberbank Slovenia. 71 As regards the judgment in Baumeister, it has already been held that the interpretation adopted in that judgment was applicable for the purpose of defining confidential information within the meaning of Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law (see, to that effect, judgments of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196, and of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraphs 120 to 134). 72 It is true that, as the applicant states, according to paragraph 46 of the judgment in Baumeister, all information relating to the supervised entity and communicated by it to the competent authority, and all statements of that authority in its supervision file, including its correspondence with other bodies, do not constitute, unconditionally, confidential information that is covered consequently by the obligation to maintain professional secrecy. 73 However, in paragraph 46 of the judgment in Baumeister, the Court ruled that information held by the competent authorities (i) which is not public and (ii) the disclosure of which is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the system for monitoring the activities of investment firms was to be so classified. 74 Therefore, if, as in the present case, the ECB intends to refuse access to documents owing to the confidentiality of the information at issue, it must check that the two criteria set out in the judgment in Baumeister stated in paragraph 73 above are satisfied in respect of each item of information concerned, since that process necessarily requires a specific examination of each item of that information (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196). 75 That said, in applying the second condition of the judgment in Baumeister, the ECB enjoys a broad discretion, since the assessment of whether the disclosure of certain documents would undermine the protection of the proper functioning of the prudential supervision and resolution system is a complex and delicate one which calls for the exercise of particular care (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraphs 159 and 252 to 253). 76 The consequence of recognising that the ECB enjoys such discretion is that the EU Courts’ review of legality in that regard must be limited to verifying whether the procedural rules and the obligation to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers (see judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 161 and the case-law cited). 77 It must now be examined whether the ECB was right to consider the redacted information to be confidential. In other words, it must be verified whether (i) that information is not public in nature and (ii) its disclosure is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the prudential supervision system. 78 In the first place, as regards the public nature of the information requested, a reading of the full text of the FOLTF assessment suggests that the information which has been redacted is known only to a limited number of persons and is therefore not public in nature (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 220 and the case-law cited). 79 As the description of that information in the public version of the FOLTF assessment also shows, the information to which access was refused is essentially specific financial information relating to the liquidity situation of Sberbank Slovenia in the weeks preceding the drafting of the FOLTF assessment and the assessments made by Sberbank Slovenia, the applicant and the ECB or the actions taken by them. It is therefore information which, in principle, is not regularly or normally made public by the credit institution concerned or by the competent national authorities or the ECB, but is rather information which has been specifically gathered in order to assess whether Sberbank Slovenia was failing or was likely to fail. 80 In the light of the foregoing, it must be stated that there is nothing in the file to suggest that the information to which access was refused pursuant to Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law was in the public domain at the time when the contested decision was adopted. 81 The fact that the ECB published the public version of the FOLTF assessment cannot alter that conclusion. In that regard, the publicity generated around Sberbank Slovenia’s situation, in particular by the publication of a press release and the public version of the FOLTF assessment, responded, as the ECB explained at the hearing, to the need to inform the public, without, however, disclosing the specific information relating to the liquidity situation of Sberbank Slovenia or the entirety of the assessments made by Sberbank Slovenia, the applicant and the ECB, and the actions undertaken by them. 82 In the second place, as regards the likelihood of adversely affecting the interests of the natural or legal person who provided that information or the interests of third parties, or the proper functioning of the system of prudential supervision, it should be borne in mind at the outset that, where information that could constitute business secrets at a certain moment in time is at least five years old, that information must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties (judgments of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 54, and of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 235). 83 In the present case, the FOLTF assessment is dated 27 February 2022 and the contested decision was adopted on 21 September 2022. Therefore, at the time when the contested decision was adopted, the information at issue had existed for no more than a few months and so, as the ECB maintains, could not be regarded as historical information. 84 In essence, the applicant claims that the redacted information relates to a crisis situation which was in the past. Since that information is no longer relevant, there would be no risk in its disclosure. Similarly, it submits that there is no risk that the interests of Sberbank Slovenia may be subject to conjecture, that is to say, speculation by external observers, since it was already in the public domain that the ECB and the SRB concluded that that establishment was failing or was likely to fail. Moreover, Sberbank Slovenia is now part of a different banking group; it is therefore barely plausible that disclosure would affect its interests. The applicant also criticises the ECB for not having stated whether it had consulted Sberbank Slovenia on that point. 85 In that respect, as regards the specific financial data relating to the situation of Sberbank Slovenia in the weeks preceding the redaction of the FOLTF assessment, the disclosure of which could, according to the ECB, adversely affect the interests of that establishment and of its new parent company, although that establishment joined the Nova Ljubljanska Banka d.d. group following the adoption of a resolution tool, it remained in activity at the time when the contested decision was adopted. 86 It follows that the ECB was entitled to take the view that disclosure of the financial data relating to the liquidity situation of Sberbank Slovenia was capable, when the contested decision was adopted, of adversely affecting the interests of that establishment or those of its new parent company (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraphs 240 to 242). It cannot be accepted that the mere fact that an establishment joins a group following the adoption of a resolution tool can create a presumption that the financial information gathered for the purposes of the FOLTF assessment would immediately lose its secret nature. 87 The press releases and other documents on the situation of Sberbank Slovenia published by the ECB and the SRB cannot alter that conclusion. Although, as the applicant states, it is in the public domain that the ECB and the SRB considered that Sberbank Slovenia was failing or was likely to fail, no publicity was given to the specific financial data relating to that situation. 88 Moreover, contrary to what the applicant claims, in so far as it was clear that the ECB did not have to disclose the recent information on the commercial position of Sberbank Slovenia, it did not have to consult that establishment, according to Article 4(4) of Decision 2004/258. 89 Furthermore, although the reasoning of the contested decision on the likelihood of an adverse effect on the interests of Sberbank Slovenia and of its new parent company is succinct, it clearly sets out, in a clear and unequivocal fashion, the reasons for refusing the disclosure and must therefore be regarded as being sufficient (see paragraphs 41 to 55 above). 90 As regards the assessments made by Sberbank Slovenia, the applicant and the ECB and the actions undertaken by them, the disclosure of which might, according to the ECB, adversely affect the proper functioning of the supervisory system, the applicant’s complaints, which merely regret the ECB’s lack of transparency, fail to call into question the ECB’s assessment that the disclosure of that information is likely to adversely affect the supervisory methodologies and strategies applied by the competent authorities and the mutual trust between them and the supervised establishments necessary to the prudential supervision mechanism. 91 Contrary to what the applicant alleges, the fact that the ECB publicised the conclusions of its FOLTF assessment before the adoption of the resolution tool concerning Sberbank Slovenia without being required to do so by Regulation No 806/2014 does not prevent it from relying on the risk that other establishments might no longer trust the fact that the information that they might provide the ECB with in the future in the context of prudential supervision will remain confidential. In the press release on the situation of Sberbank Slovenia, which the ECB published on its website on 28 February 2022, the ECB did not disclose any information covered by professional secrecy. 92 In that regard, recital 116 of Regulation No 806/2014, which the applicant relies on, states that ‘resolution actions should be properly notified and, subject to the limited exceptions laid down in this Regulation, made public’ and that, ‘however, as information obtained by the Board, the national resolution authorities and their professional advisers during the resolution process is likely to be sensitive, before the resolution decision is made public, that information should be subject to the requirements of professional secrecy’. It has already been held that accepting that the adoption of a resolution scheme can have automatic consequences affecting the confidentiality of the information which has been sought out specifically in order to assess the commercial position of a credit institution would be tantamount to excluding, as a matter of principle, the application of the exception mentioned in Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 239). In those circumstances, the ECB rightly checked whether any part of the FOLTF assessment contained confidential information before publishing it. In the present case, it has been established that some of those parts contained confidential information, and therefore the ECB could legitimately redact it in the public version of that assessment. 93 By merely regretting the ECB’s lack of transparency and relying on the fact that the ECB disclosed certain information concerning the situation of Sberbank Slovenia in a press release, the applicant fails to call into question the ECB’s reasoning that the disclosure of the redacted information could have adverse consequences for the proper functioning of the system of prudential supervision. 94 The ECB could therefore legitimately rely on a risk of adversely affecting the supervisory methodologies and strategies applied by the competent authorities and the mutual trust between them and the supervised establishments necessary to the prudential supervision mechanism. 95 In the light of the foregoing, it is not established that the ECB committed a manifest error of assessment or misused its powers in considering that the disclosure of the requested information would be likely to adversely affect the proper functioning of the system of prudential supervision (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 269). 96 Therefore, it must be concluded that the information to which the ECB refused access pursuant to Article 4(1)(c) of Decision 2004/258 is confidential within the meaning of Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36. 97 Consequently, the third plea in law must be rejected, since the contested decision proves to be well founded in the light of the exception relating to the protection of confidential information protected as such under EU law, as provided for in Article 4(1)(c) of Decision 2004/258. The fourth plea in law, alleging infringement of the first indent of Article 4(2) of Decision 2004/258 on the protection of the commercial interests of a natural or legal person 98 In essence, the applicant claims that the ECB misinterprets and incorrectly applies the first indent of Article 4(2) of Decision 2004/258 on the protection of the commercial interests of a natural or legal person. It also submits that the ECB fails to provide sufficient reasoning in that regard. 99 The ECB disputes those arguments. 100 In that regard, although the same document can fall within the scope of one or more exceptions provided for in Decision 2004/258, it is apparent from the examination of the third plea in law that the ECB was right to consider that the disclosure of the full version of the FOLTF assessment could adversely affect the protection of confidential information protected as such under EU law within the meaning of Article 4(1)(c) of that decision. 101 Therefore, since that exception in itself justifies non-disclosure of the redacted information, for reasons of procedural economy, it is unnecessary to examine whether the applicant’s pleas concerning the exception relating to the protection of the commercial interests of natural or legal persons mentioned in Article 4(2) of Decision 2004/258, which form the subject matter of the present plea in law, are well founded (see, by analogy, judgment of 28 May 2020, ViaSat v Commission, T‑649/17, not published, EU:T:2020:235, paragraph 127 and the case-law cited). The fifth plea in law, alleging infringement of the applicant’s right of access to the procedural file which resulted in the contested decision 102 In essence, the applicant claims that, as part of the procedure for public access to documents, the ECB should, in accordance with Article 41 of the Charter, have granted it access to the FOLTF assessment in order to give it the opportunity effectively to make known its view on the confidentiality of the information that it contains. 103 The ECB disputes that line of argument. 104 In the present case, as is apparent from paragraphs 61 to 97 above, it has been established that the redacted information was confidential. In that regard, information which has not been disclosed by the ECB on the ground that it is confidential and which forms the subject matter of a procedure for public access to documents does not have to be communicated to the applicant during that procedure. That approach is in accordance with the principle of sound administration, because, if that were not the case, any procedure for public access to documents would become devoid of purpose as a result of the communication of the document requested. 105 In accordance with Article 8 of Decision 2004/258, the contested decision may be the subject of an action for annulment under Article 263 TFEU. In the context of the present action for annulment brought against the contested decision, it is therefore for the General Court, and not the applicant, to consult the document requested (see, to that effect, judgment of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, EU:T:2015:268, paragraph 105 and the case-law cited). 106 Consequently, the fifth plea in law, alleging the infringement of the applicant’s right of access to the procedural file resulting in the contested decision must be rejected, and the action must be dismissed in its entirety. Costs 107 Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the ECB, in accordance with the forms of order sought. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders MeSoFa Vermögensverwaltungs AG to bear its own costs and to pay those incurred by the European Central Bank (ECB). Kowalik-Bańczyk Buttigieg Hesse Delivered in open court in Luxembourg on 6 November 2024. V. Di Bucci S. Papasavvas Registrar President * Language of case: English.