62017TJ0827
JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)
6 October 2021 (
*1
)
(Access to documents – Decision 2004/258/EC – Documents concerning the adoption of a resolution scheme for Banco Popular Español – Partial refusal of access – Exception relating to the protection of the confidentiality of the proceedings of the ECB’s decision-making bodies – Documents reflecting the outcome of the proceedings of the ECB’s decision-making bodies – Obligation to state reasons – Exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State – Exception relating to the protection of the stability of the financial system in the European Union or in a Member State – Exception relating to the protection of the confidentiality of information that is protected as such under EU law – Concept of ‘confidential information’ – General presumption of confidentiality – Exemptions from the obligation of professional secrecy – Article 47 of the Charter of Fundamental Rights)
In Case T‑827/17,
Aeris Invest Sàrl, established in Luxembourg (Luxembourg), represented by R. Vallina Hoset and E. Galán Burgos, lawyers,
applicant,
v
European Central Bank (ECB), represented by T. Filipova, D. Báez Seara and F. von Lindeiner, acting as Agents, and by M. Kottmann, lawyer,
defendant,
supported by
European Commission, represented by É. Gippini Fournier, J. Rius, C. Ehrbar and A. Steiblytė, acting as Agents,
and by
Banco Santander, SA, established in Santander (Spain), represented by J. Rodríguez Cárcamo and A. Rodríguez Conde, lawyers,
interveners,
APPLICATION under Article 263 TFEU for annulment of Decisions LS/MD/17/405, LS/MD/17/406 and LS/MD/17/419 of the ECB of 7 November 2017 refusing to grant full access to certain documents concerning the adoption of a resolution scheme for Banco Popular Español, SA,
THE GENERAL COURT (Third Chamber, Extended Composition),
composed of A.M. Collins, President, V. Kreuschitz, Z. Csehi, G. De Baere (Rapporteur) and G. Steinfatt, Judges,
Registrar: A. Juhász-Tóth, Administrator,
having regard to the written part of the procedure and further to the hearing on 4 March 2021,
gives the following
Judgment
I. Background to the dispute
Resolution of Banco Popular Español, SA
1
Banco Popular Español, SA (‘Banco Popular’) was a credit institution established in Spain subject to direct prudential supervision by the European Central Bank (ECB) pursuant to Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).
2
On 6 June 2017, the ECB, after consulting the Single Resolution Board (SRB), carried out an assessment regarding whether Banco Popular was failing or was likely to fail (‘the FOLTF assessment’), in accordance with the second subparagraph of Article 18(1) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).
3
That same day, Banco Popular’s board of directors informed the ECB that it had reached the conclusion that the bank was likely to fail.
4
Also on the same day, the ECB sent the final version of the FOLTF assessment to the SRB and the European Commission, in accordance with the third subparagraph of Article 18(1) of Regulation No 806/2014.
5
In the FOLTF assessment, the ECB stated that in the preceding months there had been a substantial deterioration in the liquidity situation of Banco Popular, primarily driven by a significant depletion of its deposit base.
6
In view, in particular, of the excessive deposit outflows, the speed at which Banco Popular had lost liquidity and its inability to generate further liquidity, the ECB took the view that there were objective elements indicating that Banco Popular would be unlikely, in the near future, to be able to pay its debts or other liabilities as they fell due. The ECB concluded from this that Banco Popular was failing or, in any case, was likely to fail in the near future, in accordance with Article 18(1)(a) and (4)(c) of Regulation No 806/2014.
7
On 7 June 2017, the SRB in its executive session adopted Decision SRB/EES/2017/08 concerning a resolution scheme in respect of Banco Popular on the basis of Regulation No 806/2014 (‘the resolution scheme’). The resolution scheme was addressed to the Fondo de Reestructuración Ordenada Bancaria (FROB, Fund for Orderly Bank Restructuring, Spain).
8
Prior to the adoption of the resolution scheme, Banco Popular was valued in accordance with Article 20 of Regulation No 806/2014. That valuation comprised an initial valuation report dated 5 June 2017, drawn up by the SRB pursuant to Article 20(5)(a) of Regulation No 806/2014, and a second valuation report dated 6 June 2017, drawn up by an independent expert pursuant to Article 20(10) of Regulation No 806/2014. Those two valuation reports are annexed to the resolution scheme.
9
Taking the view that the conditions laid down in Article 18(1) of Regulation No 806/2014 were met, the SRB decided to place Banco Popular under resolution. Thus, the SRB found, first, that Banco Popular was failing or was likely to fail, second, that there were no alternative measures that could prevent Banco Popular’s failure within a reasonable timeframe and, third, that a resolution action in the form of a sale-of-business tool in respect of Banco Popular was necessary in the public interest.
10
The application of the sale-of-business tool consisted in transferring the shares in Banco Popular, free and clear of any rights or liens of any third party, to Banco Santander, SA, as consideration for the purchase price of EUR 1.
11
On 7 June 2017, the Commission adopted Decision (EU) 2017/1246 endorsing the resolution scheme for Banco Popular (OJ 2017 L 178, p. 15) and notified it to the SRB.
12
That same day, the FROB adopted the necessary measures to implement the resolution scheme, in accordance with Article 29 of Regulation No 806/2014.
13
The SRB published a press release on its website summarising the effects of the resolution scheme. Furthermore, on 11 July 2017, a summary notification of the resolution scheme was published in the Official Journal of the European Union (OJ 2017 C 222, p. 3). That summary notification stated that further information on the resolution scheme was available on the SRB’s website and provided the link giving access to that information, including the non-confidential version of the resolution scheme. That same day, Decision 2017/1246 was published in the Official Journal of the European Union (OJ 2017 L 178, p. 15).
14
By application lodged at the Registry of the General Court on 18 September 2017, the applicant, Aeris Invest Sàrl, brought an action for annulment of the resolution scheme. That action was registered as Case T‑628/17. On 10 October 2017, the applicant also brought an action for non-contractual liability against the SRB seeking compensation for the harm allegedly sustained following the adoption of the resolution scheme. That action was registered as Case T‑714/17.
The applications for access to documents submitted by the applicant
15
The applicant held shares in Banco Popular before the adoption of the resolution scheme.
16
Between 19 June and 2 August 2017, it submitted three applications for access to documents to the ECB, under Article 6(1) of Decision 2004/258/EC of the ECB of 4 March 2004 on public access to ECB documents (OJ 2004 L 80, p. 42), as amended by Decision 2011/342/EU of the ECB of 9 May 2011 (OJ 2011 L 158, p. 37) and Decision (EU) 2015/529 of the ECB of 21 January 2015 (OJ 2015 L 84, p. 64), and two applications to Banco de España (Bank of Spain, Spain). The applications sent to the Bank of Spain, which concerned documents drawn up or held by the ECB, were forwarded to the ECB, in accordance with the second paragraph of Article 5 of Decision 2004/258.
17
In response to the applicant’s applications for access to documents, the ECB adopted four decisions, namely Decision LS/PT/2017/66 of 11 August 2017, Decision LS/PT/2017/77 of 30 August 2017, Decision LS/PT/2017/71 of 31 August 2017 and Decision LS/PT/2017/74 of 1 September 2017.
18
Following those decisions, in accordance with Article 8(2) of Decision 2004/258, the applicant submitted a single confirmatory application to the Executive Board of the ECB (‘the confirmatory application’) in which it grouped together all the documents to which it sought full access, referred to in the decisions of the ECB mentioned in paragraph 17 above.
19
Thus, the applicant requested, inter alia, access to the following documents:
–
the redacted data concerning the ceiling for emergency liquidity assistance (‘ELA’), the amount of ELA actually granted, the collateral provided by Banco Popular for the grant of ELA (‘the collateral provided’), the liquidity situation and the capital ratios;
–
the FOLTF assessment;
–
any document from the Bank of Spain showing the daily balance (positive or negative) of the deposits of Banco Popular, namely both withdrawals and amounts deposited, between 1 January and 6 June 2017, and any documents containing some or all of that information;
–
any document from the Bank of Spain containing, first, the average balance (positive or negative) of the deposits of Banco Popular, namely both withdrawals and amounts deposited, between 1 January and 23 May 2017, and, second, the daily balance (positive or negative) of the withdrawals from Banco Popular between 1 January and 23 May 2017;
–
the documents sent by Banco Popular to the ECB and the Bank of Spain within the framework of the Single Supervisory Mechanism (SSM) between 1 and 6 June 2017 relating to the adoption by the SRB of the resolution scheme, in particular correspondence sent by Banco Popular to the ECB on 6 June 2017 and, in the alternative, the letter that Banco Popular sent to the ECB on 6 June 2017.
20
The ECB replied to the confirmatory application by three decisions adopted on 7 November 2017 (‘the contested decisions’).
21
By Decision LS/MD/17/405 of 7 November 2017 (‘the first contested decision’), the ECB refused to grant access to the information listed in the third and fourth indents of paragraph 19 above. According to the ECB, the document containing that information was covered by a general presumption of confidentiality under Article 4(1)(c) of Decision 2004/258, which seeks to protect the confidentiality of information that is protected as such under EU law.
22
In that regard, the ECB stated that in the context of its ongoing prudential supervisory activities, it collects information on deposits at specific end-period dates for the credit institutions it directly supervises. Such reporting does not usually cover information relating to the daily balance (positive or negative) of deposits, that is to say both withdrawals and deposits, or information relating to the liquidity coverage capacity of the credit institution concerned. In Banco Popular’s case, the ECB exceptionally began to collect that information on 3 April 2017.
23
According to the ECB, the document containing that information was prepared by it in the context of its prudential supervisory tasks and its contents were taken into account in preparing the FOLTF assessment. As such, the requested document was part of the administrative file relating to the ongoing prudential supervision of Banco Popular and the FOLTF procedure.
24
Therefore, the requested document was covered by the obligations of professional secrecy laid down in Article 27 of Regulation No 1024/2013, Article 53 et seq. of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338), and Article 84 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190). According to the ECB, its disclosure could have damaging consequences not only for Banco Popular but also for the banking system in general, since banks could no longer be sure that the information provided would remain confidential.
25
By Decision LS/MD/17/406 of 7 November 2017 (‘the second contested decision’), the ECB refused to grant access to the information listed in the first indent of paragraph 19 above. That information had been redacted when the ECB granted the applicant partial access in response to its first application for access. That partial access concerned the following four documents:
–
a letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’;
–
a follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’;
–
a proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’;
–
the minutes of the 447th meeting of the Governing Council of the ECB held by teleconference on 5 June 2017.
26
The ECB decided that full access to those documents could not be granted for several reasons. First, the information they contained concerning the ELA ceiling and the amount of ELA actually granted was covered by the exceptions laid down in the first indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the confidentiality of the proceedings of the ECB’s decision-making bodies, in the second indent of Article 4(1)(a) of that decision, relating to the protection of the public interest in the financial, monetary or economic policy of the European Union or of a Member State, and in the seventh indent of Article 4(1)(a) of that decision, relating to the protection of the public interest in the stability of the financial system in the European Union or in a Member State. Second, according to the ECB, the information contained in the requested documents concerning the collateral provided was also protected by the exception laid down in the first indent of Article 4(2) of Decision 2004/258, relating to the protection of the commercial interests of a natural or legal person. Third, the ECB took the view that information concerning Banco Popular’s liquidity situation and capital ratios was protected under the exceptions laid down 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, and in the first indent of Article 4(2) of that decision, relating to the protection of the commercial interests of a natural or legal person.
27
As for information concerning the ELA ceiling and the amount of ELA actually granted, the ECB stated that disclosure of that information could specifically and effectively undermine monetary policy and financial stability in so far as the unfettered ability of national central banks to address temporary liquidity problems is an essential component of financial stability and a fundamental prerequisite for the effectiveness of monetary policy.
28
According to the ECB, the resolution of Banco Popular increased the sensitivity of the Spanish financial market to possible similar cases. Market confidence deteriorated, especially regarding small financial institutions. The disclosure of information relating to the ELA ceiling and the amount of ELA actually granted might revive tensions vis-à-vis financial institutions or fuel unwarranted speculation as regards the situation of Banco Santander. In addition, since financial markets are highly interconnected, any negative developments in Spain could have spillover effects in other Member States, which could ultimately have adverse effects on the financial stability of the European Union.
29
The ECB also pointed out that disclosure of the ELA ceiling and the amount of ELA actually granted to Banco Popular could reduce the flexibility that national central banks have to tailor ELA to specific circumstances in future cases. Moreover, disclosure of that data might lead to an expectation that national central banks and the ECB will act in the same way even in situations not warranting such an approach.
30
As for the collateral provided, the ECB stated, in essence, that disclosure of that information would undermine the effectiveness of ELA as a tool for maintaining financial stability. According to the ECB, banks would be deterred from seeking ELA at the appropriate time if information concerning the collateral provided were published. Disclosure of that information, even ex post, could also have the effect of reducing the flexibility of national central banks to consider a wide range of possible assets, since knowledge of the approach they have endorsed in the past would create expectations as to the type of collateral that might be accepted in the future. That would curtail their ability to respond effectively to future liquidity problems and would undermine the effectiveness of ELA as a tool for maintaining financial stability.
31
As regards information relating to Banco Popular’s liquidity situation and capital ratios, the ECB stated that that information fell within the scope of prudential supervision and was therefore protected by the rules of professional secrecy and confidentiality applicable to that area, provided for in Article 27 of Regulation No 1024/2013, read in conjunction with Article 53 et seq. of Directive 2013/36. According to the ECB, disclosure of that data would trigger speculation among market participants about Banco Santander’s liquidity situation and its financing needs, thereby generating unwarranted funding pressures. Disclosure of that information would thus risk undermining the public interest in the stability of the financial system in Spain and the European Union and also risk undermining Banco Santander’s commercial interests.
32
Lastly, the ECB stated that, in its view, there was no overriding public interest that could trump the application of the exception laid down in the first indent of Article 4(2) of Decision 2004/258. It found that the interest relied on in the present case by the applicant, namely its status as former shareholder, was a private interest which could not prevail over the public interest protected by that provision.
33
By Decision LS/MD/17/419 of 7 November 2017 (‘the third contested decision’), the ECB refused to grant access to the documents listed in the second and fifth indents of paragraph 19 above. The ECB took the view that those documents were covered by a general presumption of confidentiality based on the exceptions laid down 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, and in the first indent of Article 4(2) of that decision, relating to the protection of the commercial interests of a natural or legal person.
34
The ECB explained that the full text of the FOLTF assessment and the documentation provided by Banco Popular, namely Banco Popular’s capital and liquidity situation, information on the requirements for its authorisation and correspondence sent by Banco Popular to the ECB between 1 and 6 June 2017, were part of the administrative files relating to ongoing prudential supervision and the FOLTF assessment procedure.
35
Since those administrative files were linked to the performance by the ECB of its tasks as prudential supervisory authority, they were covered by the obligations of professional secrecy and confidentiality applicable in that area, provided for in Article 27 of Regulation No 1024/2013, Article 53 et seq. of Directive 2013/36 and Article 84 of Directive 2014/59.
36
According to the ECB, disclosure of the requested documents could have damaging consequences not only for the credit institution concerned but also for the banking system in general, since banks could no longer be sure that the information they provide to the ECB for prudential supervision purposes will remain confidential.
37
The rules governing professional secrecy and confidentiality permit the disclosure of confidential information only in summary or aggregate form in such a way that the credit institution concerned cannot be identified. Those rules continue to apply even where a credit institution has been the subject of resolution.
38
The ECB then noted that the requested documents also contained information on Banco Popular’s market position and its assets and liabilities, disclosure of which could adversely affect the commercial interests of Banco Popular and its parent company, Banco Santander. The ECB considered, in particular, that information such as the assessment of the impact of Banco Popular’s liquidity on the funding and operating structure of its subsidiary Banco Popular Portugal was commercially sensitive and could trigger unwarranted speculation about the group’s financial and liquidity situation.
39
Lastly, the ECB stated that, in its view, there was no overriding public interest that could trump the application of the exception laid down in the first indent of Article 4(2) of Decision 2004/258. It found that the interest relied on in the present case by the applicant, namely its status as former shareholder, was a private interest which could not prevail over the public interest protected by that provision.
II. Events subsequent to the bringing of the action
40
Following actions brought before the SRB’s Appeal Panel by several former shareholders, including the applicant, and creditors of Banco Popular, the SRB published on its website a number of documents concerning the resolution of Banco Popular.
41
By application lodged at the Court Registry on 6 February 2018, the applicant brought an action for annulment of the decision of the SRB’s Appeal Panel of 28 November 2017, registered as Case T‑62/18.
42
In addition, on 18 July 2018, the applicant brought an action for annulment of Decision LS/MD/18/141 of the ECB of 8 May 2018, by which the ECB had refused to grant access to certain documents concerning the resolution of Banco Popular, other than the documents forming the subject matter of the present action. That action was registered as Case T‑442/18.
43
On 14 June 2018, the firm Deloitte sent the SRB a valuation report drawn up in order to ascertain whether the shareholders and creditors would have received better treatment if the institution under resolution had entered into normal insolvency proceedings, as provided for in Article 20(16) to (18) of Regulation No 806/2014 (‘Valuation 3’).
44
On 6 August 2018, the SRB published on its website its Notice of 2 August 2018 regarding its preliminary decision SRB/EES/2018/132 on whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular have been effected and the launching of the right to be heard process, together with a non-confidential version of Valuation 3. On 7 August 2018, an announcement concerning the SRB’s Notice of 2 August 2018 was published in the Official Journal of the European Union (OJ 2018 C 277 I, p. 1).
45
On 17 March 2020, the SRB adopted Decision SRB/EES/2020/52 determining whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular have been effected. In that decision, published on its website, the SRB took the view that the shareholders and creditors that had been affected by the resolution of Banco Popular were not entitled to compensation from the Single Resolution Fund (SRF) pursuant to Article 76(1)(e) of Regulation No 806/2014. On 20 March 2020, an announcement concerning that decision was published in the Official Journal of the European Union (OJ 2020 C 91, p. 2).
III. Procedure and forms of order sought by the parties
46
By application lodged at the Court Registry on 27 December 2017, the applicant brought the present action.
47
By separate document lodged at the Court Registry on the same day, the applicant requested that the present action be dealt with under an expedited procedure in accordance with Article 152 of the Rules of Procedure of the General Court. The ECB submitted its observations on that request within the prescribed period. By decision of 26 January 2018, the General Court (Eighth Chamber) refused the request for an expedited procedure.
48
By documents lodged at the Court Registry on 6 March 2018, Banco Popular and Banco Santander each applied for leave to intervene in these proceedings in support of the form of order sought by the ECB.
49
By document lodged at the Court Registry on 11 April 2018, the Commission applied for leave to intervene in these proceedings in support of the form of order sought by the ECB.
50
By decision of 17 July 2018, the President of the Eighth Chamber of the General Court granted the Commission leave to intervene. The Commission lodged its statement in intervention and the main parties lodged their observations on that statement within the prescribed period.
51
By orders of 27 July 2018, the President of the Eighth Chamber of the General Court granted Banco Santander and Banco Popular leave to intervene. They lodged their statements in intervention and the main parties lodged their observations on those statements within the prescribed period.
52
By document lodged at the Court Registry on 30 October 2018, Banco Santander informed the Court that with effect from 28 September 2018, it had become the universal successor of Banco Popular and that Banco Popular’s intervention had been withdrawn.
53
The applicant lodged its observations on the withdrawal of Banco Popular’s intervention within the prescribed period. Neither the ECB nor the Commission lodged observations in that regard.
54
By order of 5 February 2019, the President of the Eighth Chamber of the General Court removed Banco Popular’s intervention from the register and ordered Banco Santander to bear its own costs and to pay the costs incurred by the applicant in relation to the intervention of Banco Popular. It also decided that the ECB and the Commission should bear their own costs.
55
By decision of the President of the Eighth Chamber of 1 August 2019, after the parties had been heard, the proceedings were stayed in accordance with Article 69(b) of the Rules of Procedure pending a final decision in the case having since given rise to the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117).
56
Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was accordingly allocated.
57
On 19 December 2019, the Court of Justice delivered its judgment in ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117). In consequence, the proceedings in the present case were resumed.
58
By way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the applicant was invited to express its views on the inferences which it considered should be drawn from the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117), for the present case, while the ECB, the Commission and Banco Santander were invited to submit observations on the applicant’s reply.
59
By way of a measure of organisation of procedure provided for in Article 89 of the Rules of Procedure, the applicant, the ECB and the Commission were invited to reply in writing to a number of questions put by the Court. They replied within the prescribed period.
60
By order relating to measures of inquiry of 27 November 2020, the Court ordered the ECB, under the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and under Article 91(c) and Article 104 of the Rules of Procedure, to produce the documents to which access had been refused in the contested decisions.
61
Acting on a proposal from the Third Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition.
62
By letter of 12 February 2021, Banco Santander stated that on account of the COVID-19 health crisis it was unable to travel to Luxembourg (Luxembourg) for the hearing and asked to be allowed to plead by videoconference. By decision of 17 February 2021, the President of the Third Chamber, Extended Composition, granted Banco Santander’s request.
63
The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 4 March 2021.
64
The applicant claims that the Court should:
–
annul the contested decisions;
–
order the ECB to pay the costs.
65
The ECB, supported by the Commission and Banco Santander, contends that the Court should:
–
dismiss the action;
–
order the applicant to pay the costs.
IV. Law
66
In support of its action, the applicant puts forward five pleas in law. The first plea alleges that the ECB infringed Article 4(1)(c) of Decision 2004/258 in the contested decisions. In the second plea, the applicant claims that the ECB infringed the second and seventh indents of Article 4(1)(a) of Decision 2004/258 in the second contested decision. The third plea seeks annulment of the second and third contested decisions on the ground of infringement of the first indent of Article 4(2) of Decision 2004/258. The fourth plea alleges infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In the fifth plea, raised for the first time in its observations on the statements in intervention of the Commission and Banco Santander, the applicant submits that the second contested decision is vitiated by an infringement of the obligation to state reasons in relation to the application of the first indent of Article 4(1)(a) of Decision 2004/258.
67
Before examining the five pleas in law raised by the applicant, it is necessary to determine whether the purpose of the action and the applicant’s interest in bringing proceedings continue to exist.
68
The Court will then need to examine the wording of the second contested decision. On the basis of that analysis, the fifth and second pleas will be dealt with first. Thereafter, the Court will consider the first and, if appropriate, the third plea, followed by, finally, the fourth plea.
A. Purpose of the action and the applicant’s interest in bringing proceedings
69
In its statement in intervention, Banco Santander draws the Court’s attention to the fact that, since the lodging of the present action, some documents have already been published to a large extent or will soon be published on the SRB’s website following the decisions of its Appeal Panel (see, in that regard, paragraph 40 et seq. above). Banco Santander submits that that fact could render the action devoid of purpose.
70
The ECB and the applicant dispute Banco Santander’s claims.
71
As Banco Santander rightly points out, it has been held that an intervener is not entitled to raise an objection of inadmissibility independently and that the Court is therefore not bound to consider the pleas on which the intervener relies exclusively, which do not relate to public policy (judgments of 24 March 1993, CIRFS and Others v Commission, C‑313/90, EU:C:1993:111, paragraph 22, and of 13 December 2018, Post Bank Iran v Council, T‑559/15, EU:T:2018:948, paragraph 63).
72
However, under Article 131(1) of the Rules of Procedure, if the Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.
73
According to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 32 and the case-law cited).
74
Concerning, first, the purpose of the action, the Court of Justice recalled in paragraph 33 of its judgment of 21 January 2021, Leino-Sandberg v Parliament (C‑761/18 P, EU:C:2021:52), that in the field of public access to documents of the EU institutions, an action retains its purpose as long as the decision by which the institution concerned refused access to the requested document has not been formally withdrawn by that institution, even if the requested document has been disclosed by a third party.
75
Since the ECB has not formally withdrawn the contested decisions, the present action retains its purpose.
76
Concerning, second, the applicant’s interest in bringing proceedings, it should be pointed out that the following documents relating to the resolution of Banco Popular have been published in part or in full on the SRB’s website: (i) the resolution scheme; (ii) the first valuation report of 5 June 2017 drawn up by the SRB under Article 20(5)(a) of Regulation No 806/2014; (iii) the second valuation report of 6 June 2017 drawn up by an independent expert under Article 20(10) of Regulation No 806/2014; (iv) the 2016 resolution plan; (v) the letter of sale of 6 June 2017; (vi) the SRB’s decision of 3 June 2017 to initiate the sale of Banco Popular; (vii) the cover letter to the SRB’s decision of 3 June 2017 to initiate the sale of Banco Popular; (viii) Valuation 3; (ix) the SRB’s Notice of 2 August 2018 regarding its preliminary decision on whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular have been effected and the launching of the right to be heard process; (x) the 2017 data liability report; (xi) the 2017 critical functions report; and (xii) documents received from Banco Popular in the course of the private sale.
77
It must be stated that the documents referred to in paragraph 76 above do not include the documents forming the subject matter of the present dispute, as mentioned in paragraphs 21 to 25 and 33 above, which was confirmed by the applicant both in writing and at the hearing.
78
In any event, the Court of Justice has pointed out that in a situation where the applicant has only obtained access to the requested document disclosed by a third party and where the institution concerned continues to refuse to grant him or her access to the requested document, it cannot be considered that the applicant has obtained access to that document or that, therefore, he or she no longer has any interest in seeking the annulment of the decision at issue solely as a result of that disclosure. On the contrary, in such circumstances, the applicant retains a genuine interest in obtaining access to an authenticated version of the requested document guaranteeing that that institution is the author and that the document expresses its official position (see, to that effect, judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 48).
79
As the ECB confirmed at the hearing that it had not disclosed the requested documents since the lodging of the present action and that it continued to refuse access to them, it must be concluded that the applicant retains its interest in bringing proceedings in this action.
B. Interpretation of the second contested decision
80
As a preliminary point, it must be observed that there is a mismatch between the way in which the ECB has summarised the second contested decision in its written pleadings before the Court and the actual wording of that decision. Specifically, that mismatch concerns the provisions of Decision 2004/258 on which the ECB relied in the second contested decision in order to refuse access to the various types of information concerned.
81
It must be observed, first of all, that the Court will use the English version of the second contested decision in order to interpret the content of that decision. The Spanish version of the second contested decision contains the words ‘Traducción de cortesía (en caso de discrepancia prevalece la versión en inglés)’ (Courtesy translation (in the event of divergence, the English-language version prevails)). It is common ground between the parties that the English version of that decision must be regarded as the authentic version.
82
Next, as stated in paragraph 25 above, it should be recalled that the second contested decision contains a refusal to grant partial access to four documents containing five categories of information: information relating to the ELA ceiling, the amount of ELA actually granted, the collateral provided, the liquidity situation of Banco Popular and the capital ratios of Banco Popular. The second contested decision applied five exceptions to the right of access to those five categories of information, exceptions which overlap depending on the type of information in question.
83
In response to a question put by the Court at the hearing, the ECB explained that, in its view, the second contested decision is based on the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258 as regards each of the five categories of information to which access was refused (see paragraph 82 above). According to the ECB, that interpretation is confirmed by Annex B.1 to the defence, containing a table listing the documents requested and the grounds for (partial) non-disclosure relied on by the ECB, which forms an integral part of the second contested decision.
84
In response to the ECB’s claims, the applicant stated at the hearing that it considered its rights of the defence to have been infringed since it did not receive Annex B.1 to the defence with the second contested decision and the wording of the second contested decision did not confirm the ECB’s view that the five categories of information to which access had been refused were covered by the set of exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258.
85
It must be stated, first, that the second contested decision was intended to confirm Decision LS/PT/2017/66 of the ECB of 11 August 2017. It is apparent from the wording of the decision of 11 August 2017 that only information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided was covered by the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258, not information concerning Banco Popular’s liquidity situation and capital ratios.
86
Second, in the second contested decision, under the heading ‘Information on the liquidity situation and the capital ratios of BPE’, the ECB stated that ‘in your confirmatory application you do not contest the ECB’s reasoning and arguments put forward as justification for the non-disclosure of the liquidity situation and the capital ratios of BPE’ and that ‘the Executive Board takes the view that such data are protected under Article 4(1)(c) (“protected as such under Union law”) and the first indent of Article 4(2) (“the commercial interests of a natural or legal person”) of Decision ECB/2004/3’. Those sentences leave no doubt that information relating to Banco Popular’s liquidity situation and capital ratios was not covered by the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258.
87
Third, it must be observed that, contrary to the ECB’s claims, there is nothing in the case file to support the conclusion that Annex B.1 to the ECB’s defence is an integral part of the second contested decision.
88
The second contested decision does not refer to any attached annex. Moreover, the table in Annex B.1 concerns the three contested decisions, not just the second contested decision, so that it is likely that that annex was drawn up for the purposes of the present action.
89
In the light of those considerations, it must be concluded that, contrary to the ECB’s arguments in its written pleadings before the Court and at the hearing, the second contested decision is not based on the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258 as regards each of the five categories of information to which access was refused. Specifically, in the second contested decision the ECB only refused access to the ELA ceiling, to the amount of ELA actually granted and to the collateral provided on the basis of the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258. Access to information concerning the collateral provided was also refused on the basis of the first indent of Article 4(2) of Decision 2004/258. By contrast, as regards the refusal to grant access to information concerning Banco Popular’s liquidity situation and capital ratios, the second contested decision is based solely on Article 4(1)(c) and the first indent of Article 4(2) of Decision 2004/258.
C. Fifth plea in law: infringement of the obligation to state reasons in relation to the application of the first indent of Article 4(1)(a) of Decision 2004/258 in the second contested decision
90
In its observations on the statements in intervention of the Commission and Banco Santander, the applicant raises a plea alleging that the second contested decision is vitiated by a failure to state reasons because the ECB did not explain in that decision the reasons for its view that (i) information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided was covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the confidentiality of the proceedings of the ECB’s decision-making bodies, and (ii) disclosure of that information could specifically and actually undermine the interest protected by that exception.
91
In support of that plea, the applicant refers to the judgment of 26 April 2018, Espírito Santo Financial (Portugal) v ECB (T‑251/15, not published, EU:T:2018:234). In that judgment, the Court held that the ECB had infringed its obligation to state reasons by failing (i) to explain why the documents requested in that case fell within the area covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258 and (ii) to provide a statement of reasons that would have made it possible to understand and verify how access to the documents at issue would have undermined the protected interest.
1.
Preliminary remarks
92
It must be stated that it was only at an advanced stage of the proceedings, namely in its observations on the statements in intervention of the Commission and Banco Santander, that the applicant raised the plea alleging infringement of the obligation to state reasons.
93
It should be borne in mind that in an action for annulment a plea alleging that the statement of reasons for a measure is lacking or inadequate involves a matter of public policy which may, or even must, be raised by the EU Courts of their own motion and, consequently, may be raised by the parties at any stage of the proceedings (judgments of 20 February 1997, Commission v Daffix, C‑166/95 P, EU:C:1997:73, paragraph 25; of 13 December 2001, Krupp Thyssen Stainless and Acciai speciali Terni v Commission, T‑45/98 and T‑47/98, EU:T:2001:288, paragraph 125; and of 10 February 2021, Şanli v Council, T‑157/19, not published, EU:T:2021:75, paragraph 34).
94
Moreover, according to settled case-law, the obligation to state the reasons on which an act adversely affecting an individual is based, as provided for in the second paragraph of Article 296 TFEU and enshrined in Article 41(2)(c) of the Charter, is a corollary of the principle of respect for the rights of the defence and its purpose is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the EU Courts and, second, to enable those Courts to review the legality of that act (see judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 29 and the case-law cited, and of 10 February 2021, Şanli v Council, T‑157/19, not published, EU:T:2021:75, paragraph 36 and the case-law cited).
95
According to equally settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution that adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the EU Courts to exercise their power of review (judgments of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 40; of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 85; and of 27 January 2021, KPN v Commission, T‑691/18, not published, EU:T:2021:43, point 161).
96
In the present case, as will be explained below, the ECB’s refusal to grant access to certain information on the basis of the first indent of Article 4(1)(a) of Decision 2004/258 does not meet those requirements.
2.
Infringement of the obligation to state reasons
(a)
Failure to state reasons for the refusal to grant access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided
97
It should be recalled, first of all, that with respect to the legal framework applicable to the right of access to ECB documents, the second paragraph of Article 1 TEU enshrines the principle that the European Union’s decision-making process must be open. In that respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the European Union’s institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the European Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, under the second subparagraph of Article 15(3) TFEU, general principles and limits on grounds of public or private interest governing that right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. The third subparagraph of Article 15(3) TFEU provides that each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph thereof. According to the fourth subparagraph of Article 15(3) TFEU, the Court of Justice of the European Union, the ECB and the European Investment Bank (EIB) are to be subject to that paragraph only when exercising their administrative tasks.
98
Decision 2004/258 seeks, as stated in recitals 2 and 3 thereof, to authorise wider access to ECB documents than that which existed under the rules established by ECB Decision 1999/284/EC of 3 November 1998 concerning public access to documentation and the archives of the ECB (OJ 1999 L 110, p. 30), while at the same time protecting the independence of the ECB and of the national central banks, and the confidentiality of certain matters specific to the performance of the ECB’s tasks.
99
Article 2(1) of Decision 2004/258 thus gives any EU citizen, and any natural or legal person residing or having its registered office in a Member State, a right of access to ECB documents, subject to the conditions and limits laid down in that decision.
100
That right is subject to certain limits based on reasons of public or private interest. Specifically, and in accordance with recital 4 thereof, Decision 2004/258 provides, in Article 4, for a system of exceptions authorising the ECB to refuse access to a document where disclosure of that document would undermine one of the interests protected by Article 4(1) and (2) or where that document contains opinions for internal use as part of deliberations and preliminary consultations within the ECB or with national central banks.
101
Since the exceptions to the right of access laid down in Article 4 of Decision 2004/258 derogate from the right of access to documents, they must be interpreted and applied strictly (judgments of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 41, and of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 17).
102
Next, it must be observed that the judgment of 26 April 2018, Espírito Santo Financial (Portugal) v ECB (T‑251/15, not published, EU:T:2018:234), relied on by the applicant in support of the fifth plea (see paragraph 91 above), was set aside by the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117).
103
In the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117), the Court of Justice held that with regard to the exclusive competence conferred on the Governing Council of the ECB, Article 4(1)(a) of Decision 2004/258, read in conjunction with the second sentence of Article 10.4 of Protocol No 4 on the Statute of the European System of Central Banks and of the ECB, annexed to the TEU and TFEU (‘the Statute of the ESCB and of the ECB’), must be interpreted as protecting the confidentiality of the outcome of the proceedings of the Governing Council, without it being required that the refusal to grant access to the documents containing that outcome be subject to the condition that the disclosure thereof undermines the protection of the public interest (judgments of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 43, and of 21 October 2020, ECB v Estate ofEspírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 50).
104
The Court of Justice added that pursuant to the first indent of Article 4(1)(a) and Article 7(1) of Decision 2004/258, the Director-General Secretariat of the ECB is required to refuse to grant access to the outcome of the proceedings of the Governing Council, unless the latter has decided to make that outcome public in whole or in part (judgments of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 44, and of 21 October 2020, ECB v Estate of Espírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 51).
105
The Court of Justice concluded from this that sufficient reasons are given for a decision refusing to disclose the outcome of the proceedings of the Governing Council solely by reference to the requirements of the first indent of Article 4(1)(a) of Decision 2004/258 in so far as documents recording the outcome of those proceedings are concerned (judgments of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 46, and of 21 October 2020, ECB v Estate of Espírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 53).
106
In response to the Court’s request to comment on the inferences to be drawn from the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117), the applicant acknowledges that that judgment appears to allow the ECB to derogate from the obligation to state reasons for its decisions, in the light of the particular features of the confidentiality of the proceedings of its decision-making bodies arising from the Statute of the ESCB and of the ECB. However, the applicant states that the Court of Justice’s reasoning is limited to ‘documents reflecting the outcome of the proceedings of the ECB’s decision-making bodies’.
107
According to the ECB, supported in that regard by the Commission and Banco Santander, the applicant’s fifth plea must be rejected on the basis of the inferences to be drawn from the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117). Thus, the ECB submits that it complied with its obligation to state reasons simply by invoking the application of the first indent of Article 4(1)(a) of Decision 2004/258 in order to refuse access to the requested information.
108
It is in the light of those considerations that it is necessary to examine whether the ECB provided sufficient reasons for the second contested decision inasmuch as it refused access to certain information on the basis of the exception laid down in the first indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the confidentiality of the proceedings of the ECB’s decision-making bodies.
109
As the ECB correctly states, the statement of reasons for the second contested decision is confined to the mere reference to the requirements of Article 4(1)(a) of Decision 2004/258 in order to refuse access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided.
110
The applicant is right to state that it follows from the case-law of the Court of Justice cited in paragraphs 103 to 105 above that it is only with regard to documents ‘reflecting the outcome of the proceedings of the Governing Council’ that a refusal to grant access is subject to a duty to state reasons, which may be confined to a mere reference to the requirements of the first indent of Article 4(1)(a) of Decision 2004/258.
111
In the present case, it must be observed that the ECB does not specify, for each type of information to which it refused access on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, the document in which that information is to be found. It merely states, in general terms, that the three types of information to which it refused access on the basis of the exceptions it relied on are to be found in the four documents to which it granted partial access, namely the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’; the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’; the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’; and the minutes of the 447th meeting of the Governing Council of the ECB held by teleconference on 5 June 2017.
112
Of those four documents, the only one clearly intended to record the outcome of the proceedings of the Governing Council of the ECB is the minutes of its 447th meeting held by teleconference on 5 June 2017. In that regard, the ECB explained in Decision LS/PT/2017/66 of 11 August 2017, which was confirmed by the second contested decision, that the decisions of the Governing Council not to oppose the ELA ceiling are recorded in the minutes of that body’s meetings, which, under Article 10.4 of the Statute of the ESCB and of the ECB, are confidential in order to safeguard the independence of the members of the Governing Council and ensure that its decision-making process is effective.
113
After consulting the confidential versions of the four documents concerned, as lodged by the ECB in response to the measure of inquiry referred to in paragraph 60 above, the Court was able to ascertain that those minutes contained only one of the three items of information to which access was refused on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, namely the ELA ceiling. Information relating to the amount of ELA actually granted and the collateral provided was contained in the three other documents to which the ECB refused full access, namely the two letters from the Governor of the Bank of Spain of 5 June 2017 and the Executive Board’s proposal of 5 June 2017.
114
Thus, in accordance with the case-law of the Court of Justice cited in paragraphs 103 to 105 above, the ECB provided sufficient reasons for its refusal to grant access to the ELA ceiling in so far as that information was found in the minutes of the 447th meeting of the Governing Council, since that document reflects the outcome of the proceedings of the Governing Council.
115
However, it is necessary to examine whether the ECB also provided sufficient reasons for its refusal to grant access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided, in so far as that information was contained in the other three documents.
116
When questioned in that regard at the hearing, the ECB stated that it was of the view that the two letters from the Governor of the Bank of Spain and the Executive Board’s proposal are documents enabling the Governing Council to take an informed decision and, as such, are necessarily linked to the proceedings of that body. It follows that the protection of the confidentiality of the outcome of the proceedings of the Governing Council under the first indent of Article 4(1)(a) of Decision 2004/258, read in conjunction with the second sentence of Article 10.4 of the Statute of the ESCB and of the ECB, covers all preparatory documents submitted for the purposes of the Governing Council’s proceedings. According to the ECB, by refusing access to the full text of those documents simply by invoking the requirements of the first indent of Article 4(1)(a) of Decision 2004/258, it complied with its duty to state reasons in line with the case-law of the Court of Justice set out in paragraphs 103 to 105 above.
117
The applicant countered by saying that since it was not in a position to know why the first indent of Article 4(1)(a) of Decision 2004/258 was applied to the redacted information in the letters from the Governor of the Bank of Spain and the Executive Board’s proposal, it was impossible for it to put forward a plea questioning the justification for applying that provision. Specifically, it claimed that the exceptions to the right of access must be interpreted restrictively and that the broad interpretation of the first indent of Article 4(1)(a) of Decision 2004/258, read in conjunction with Article 10.4 of the Statute of the ESCB and of the ECB, as proposed by the ECB, clashes with that rule.
118
It must be stated that the two letters from the Governor of the Bank of Spain and the Executive Board’s proposal predate the meeting of the Governing Council and therefore do not reflect the outcome of the proceedings of the Governing Council. It follows that the second sentence of Article 10.4 of the Statute of the ESCB and of the ECB does not apply to those documents, with the result that the Court of Justice’s reasoning, as set out in paragraphs 103 to 105 above, cannot be applied to them.
119
In addition, it is for the ECB to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the requested document does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine (judgments of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 99, and of 26 March 2020, Bonnafous v Commission, T‑646/18, EU:T:2020:120, paragraph 24; also see, by analogy, judgment of 26 April 2005, Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 61).
120
In that regard, it must be observed that Decision 2004/258 contains an exception to the right of access, namely Article 4(3), which expressly refers to the refusal to grant access to documents drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB (see, to that effect, judgment of 17 December 2020, De Masi and Varoufakis v ECB, C‑342/19 P, EU:C:2020:1035, paragraphs 66 to 79).
121
The failure to state any reasons at all, in both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision, explaining why the refusal to grant full access to the letters from the Governor of the Bank of Spain and the Executive Board’s proposal was covered by the exception laid down in the first indent of Article 4(1)(a) of Decision 2004/258, in so far as those documents contained information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided, prevented the applicant from understanding the reasons for the refusal to grant access to that information and, so the applicant claims, prevented it from raising a plea challenging the justification for applying the first indent of Article 4(1)(a) of Decision 2004/258 to those documents.
122
As explained in paragraph 116 above, it was only at the hearing that the ECB stated that, in its view, since the letters from the Governor of the Bank of Spain and the Executive Board’s proposal were necessary supporting material for the proceedings of the Governing Council, the refusal to grant access to certain information contained in those documents could be justified by simply referring to the requirements of the first indent of Article 4(1)(a) of Decision 2004/258, in accordance with the case-law of the Court of Justice set out in paragraphs 103 to 105 above.
123
It is settled case-law that the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him or her. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the EU Courts (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 149; of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission andCommission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74; and of 10 September 2019, Trasys International and Axianseu – Digital Solutions v EASA, T‑741/17, EU:T:2019:572, paragraph 53).
124
It is therefore appropriate to uphold the plea alleging that the statement of reasons for the second contested decision was inadequate inasmuch as it refused access to information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, in so far as that information was contained in the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’, the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’ and the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’.
125
Before deciding on the consequences of that inadequate statement of reasons for the second contested decision, it is necessary to examine whether the other exceptions relied on by the ECB, the justification for which the applicant calls into question in the second plea, provide a proper foundation for refusing access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided.
(b)
Failure to state reasons for the refusal to grant access to the outcome of the vote in the Governing Council
126
On reading the confidential version of the minutes of the 447th meeting of the Governing Council of the ECB held by teleconference on 5 June 2017, the Court noted that the ECB had refused access to an item of information contained in that document which was not included in any of the five categories of information to which access was expressly refused in the second contested decision (see paragraph 82 above). The item of information in question is the outcome of the vote in the Governing Council. It does not concern the ELA ceiling, the amount of ELA actually granted, the collateral provided or Banco Popular’s liquidity situation or capital ratios. The vote cast must be considered to constitute specific information which must be distinguished from information concerning the content of the proceedings prior to that vote.
127
When questioned at the hearing about the lack of any reference to the outcome of the vote, the ECB, supported in that regard by the Commission, replied that although it had not expressly stated that it also refused access to that type of information, its view was that it had provided sufficient reasons for its refusal to grant access to that item of information by invoking the application of the first indent of Article 4(1)(a) of Decision 2004/258 in order to refuse full access to the minutes of the 447th meeting of the Governing Council.
128
The approach suggested by the ECB would involve interpreting the notion of the ‘outcome of the proceedings’ of the Governing Council broadly, in so far as the outcome of the proceedings of the Governing Council would automatically include the outcome of the vote of that body. Such a broad interpretation would, consequently, justify the ECB’s duty to state reasons when refusing access to a document containing the result of the vote in the Governing Council being limited in accordance with the case-law of the Court of Justice set out in paragraphs 103 to 105 above.
129
However, as the applicant rightly submitted at the hearing, such an approach would clearly be at variance with the principle that exceptions to the right of access must be interpreted strictly (see paragraphs 101 and 117 above).
130
Accordingly, the onus was on the ECB to state reasons for applying the first indent of Article 4(1)(a) of Decision 2004/258 to its refusal to grant access to the outcome of the vote in the Governing Council in such a way as to enable the applicant to assess whether it was justified.
131
By failing even to mention the existence of information relating to the outcome of the vote in the Governing Council, the second contested decision is vitiated by a failure to state reasons and it must be annulled in that respect.
D. Second plea in law: infringement of the second and seventh indents of Article 4(1)(a) of Decision 2004/258 in the second contested decision
132
In support of its second plea, the applicant submits that, in the second contested decision, the ECB infringed the second indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the financial, monetary or economic policy of the European Union or of a Member State, and the seventh indent of Article 4(1)(a) of that decision, relating to the protection of the public interest in the stability of the financial system in the European Union or in a Member State, in so far as it wrongly asserted that the disclosure of Banco Popular’s use of ELA in the days preceding its resolution and the disclosure of information relating to its liquidity situation and capital ratios could sap the effectiveness of monetary policy and jeopardise the financial stability of the European Union or of a Member State.
133
Although the applicant concedes that the ECB enjoys a broad discretion in deciding whether the public interest in the financial, monetary or economic policy of the European Union or of a Member State is undermined, it submits that the ECB committed a manifest error of assessment in the present case in so far as the requested documents are not concerned with the financial, monetary or economic policy of the European Union or of a Member State.
134
Thus, first, the applicant did not request information relating to a general policy; it only sought information relating to one particular case, limited to an identified financial institution, namely Banco Popular, covering a fixed period, namely that of the resolution of Banco Popular by the SRB. In accordance with the principle that exceptions to the right of access must be interpreted strictly, the applicant’s application for access should not be construed so broadly as to equate it to an application for access to data relating to the financial, monetary or economic policy of the European Union or of a Member State.
135
Second, the information requested by the applicant does not concern the European Union or a Member State, but rather the liquidity situation of Banco Popular.
136
Third, the information requested is not of a general nature but, on the contrary, is very specific. It is concerned with a clearly defined and circumscribed period, namely the days preceding the resolution of Banco Popular, and relates to Banco Popular’s individual situation. The information examined in the second contested decision, that is, the ELA ceiling, the amount of ELA actually granted, the collateral provided, and Banco Popular’s liquidity situation and capital ratios, do not reveal a general policy of the European Union. Consequently, disclosure of that information would be unlikely to undermine the effectiveness of the monetary policy and financial stability of the European Union.
137
Fourth, the applicant submits that its application for access complies with the principle of proportionality, since it relates solely to information that would enable it to understand the alleged liquidity problems of Banco Popular which led to its resolution.
138
The ECB disputes the applicant’s arguments.
1.
The ineffectiveness of the second plea in law
139
The ECB contends that the second plea is ineffective inasmuch as the application refers expressly to the exceptions in the second and seventh indents of Article 4(1)(a) of Decision 2004/258, but the arguments put forward relate solely to the second indent of that provision.
140
In that regard, it must be observed as a preliminary point that the wording of the second plea could indeed have been clearer to make it more readily understandable. Thus, in paragraph 48 of the application, the applicant states that the second contested decision relies on the second and seventh indents of Article 4(1)(a) of Decision 2004/258 in order to refuse access, inter alia, to information ‘relating to the liquidity situation and the capital ratios’. As pointed out in paragraph 85 above, access to that information was refused solely on the basis of Article 4(1)(c) and the first indent of Article 4(2) of Decision 2004/258. The second plea is therefore ineffective inasmuch as it is concerned with that category of information to which access was refused in the second contested decision.
141
Next, as regards whether the second plea raised by the applicant seeks to challenge the application of both the second indent of Article 4(1)(a) of Decision 2004/258 and the seventh indent thereof, it must be held that the applicant’s arguments, as set out in particular in paragraph 55 of the application, clearly seek to call into question the fact that the ECB relied on two exceptions with a very broad political and geographic scope, whereas the requested information was concerned with the very specific case of a single bank. Accordingly, the ECB’s argument that the second plea is ineffective in that regard must be rejected.
142
Lastly, it should be borne in mind that the Court found in paragraph 124 above that as regards information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided, the second contested decision does not contain an adequate statement of reasons, in so far as that information was contained in the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’, the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’ and the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’. The second plea is therefore not ineffective in so far as it is directed at that information.
143
By contrast, the second plea is ineffective in so far as it concerns the refusal to grant access to information relating to the ELA ceiling contained in the minutes of the 447th meeting of the Governing Council. Since the Court has ruled in paragraph 114 above that the second contested decision contains an adequate statement of reasons for the refusal to grant access to that information inasmuch as it was found in the minutes of the 447th meeting of the Governing Council, and since the applicant has not raised a plea seeking to challenge, on the substance, the application by the ECB of the first indent of Article 4(1)(a) of Decision 2004/258, it must be held that the refusal to grant access to information relating to the ELA ceiling contained in the minutes of the 447th meeting of the Governing Council is justified by that exception. That said, for the sake of completeness, the Court will also examine the merits of the second plea so far as concerns that information.
2.
The merits of the second plea in law
144
The second plea essentially hinges on two complaints. In the first complaint, the applicant takes issue with the ECB for having considered that the requested information fell within the scope of the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258. By its second complaint, the applicant denies that disclosure of the requested information, in so far as it is concerned solely with the individual situation of Banco Popular, undermines the effectiveness of monetary policy and financial stability.
(a)
First complaint: the requested information does not fall within the scope of the second and seventh indents of Article 4(1)(a) of Decision 2004/258
145
In the first complaint, the applicant submits that the exceptions to the right of access must be interpreted and applied strictly, so that an application for access to information relating to Banco Popular should not be interpreted as an application relating to the financial, monetary or economic policy of the European Union or of a Member State or to the stability of the financial system in the European Union or in a Member State. Thus, that information does not concern the European Union or a Member State, but only the liquidity situation of a particular financial institution, namely Banco Popular. It also covers a clearly defined period and relates to a very specific case. That information does not therefore relate to a general policy of the European Union, but only to the individual situation of Banco Popular.
146
As the applicant rightly points out, it has been held that since the exceptions to the right of access laid down in Article 4 of Decision 2004/258 derogate from the right of access to documents, they must be interpreted and applied strictly (judgments of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 41; of 27 September 2018, Spiegel-Verlag Rudolf Augstein and Sauga v ECB, T‑116/17, not published, EU:T:2018:614, paragraph 22; and of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 17).
147
While it is true that the confirmatory application did not seek access to information expressly relating to the monetary policy or financial stability of the European Union or of a Member State, it cannot be inferred from this that the information identified by the ECB as relevant in the light of that application is concerned solely with Banco Popular’s individual situation.
148
It is apparent from both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision that the information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided arose in a very specific regulatory context underpinned by considerations of price stability, monetary policy and financial stability of the European Union, with the result that that information necessarily goes beyond the specific case of a single credit institution.
149
Consequently, as regards information concerning the ELA ceiling and the amount of ELA actually granted, Decision LS/PT/2017/66 of 11 August 2017 describes in some detail the regulatory framework applicable to the grant of ELA, distinguishing between the nature of such credit and standard monetary transactions. The ECB explained in particular that, as a rule, national central banks alone are responsible under national law for the grant of ELA. It then stated that the ECB does not approve or adopt decisions concerning the grant of ELA, but that under Article 14.4 of the Statute of the ESCB and of the ECB, its power is limited to assessing whether the grant of ELA may, in a specific case, interfere with the objectives and tasks of the Eurosystem. In that regard, it noted that for the purposes of exercising that power, a system for the exchange of information between national central banks and the ECB is in place in the Eurosystem. Lastly, the ECB stated that the ex post publication of the ELA ceiling and the amount of ELA actually granted risks diminishing the flexibility that national central banks have to tailor an ELA operation to specific circumstances in future cases. Such publication would create an expectation that the ECB would act in the same way in the future, even where there was no justification for doing so. That might give rise to unwarranted market speculation, which would limit the Governing Council’s ability to assess whether an envisaged ELA operation interferes with the objectives and tasks of the Eurosystem since the Governing Council would also have to take into account the effects of publication on financial stability and, ultimately, on monetary policy.
150
The second contested decision expressly referred to the detailed overview of the regulatory framework applicable to the grant of ELA as explained in paragraph 149 above. The ECB then stated that the ability of national central banks to address the temporary liquidity problems of credit institutions is an essential component of financial stability and a fundamental prerequisite for the effectiveness of monetary policy. In that regard, it pointed to the systemic effects which followed the resolution of Banco Popular and weakened the Spanish financial market and explained that publication of the requested information might revive tensions vis-à-vis financial institutions or give rise to warranted speculation about Banco Santander. Those detrimental effects in Spain could, moreover, owing to the highly interconnected nature of the markets, have adverse consequences in other Member States and, ultimately, jeopardise the financial stability of the European Union as a whole. The second contested decision also refers to Article 127(5) TFEU, which provides that the Eurosystem is to contribute to the stability of the financial system. Lastly, it reproduces the considerations set out in Decision LS/PT/2017/66 of 11 August 2017 concerning the ex post publication of information concerning the ELA ceiling and the amount of ELA actually granted, as well as the effect of such publication on the flexibility that national central banks and the ECB must have in the management of ELA operations.
151
As regards the collateral provided, both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision state that the publication of that information could reduce the effectiveness of ELA operations as a tool for maintaining financial stability. According to the ECB, such publication might deter credit institutions from participating in standard monetary policy operations which, in turn, could undermine the transmission mechanism implementing the ECB’s monetary policy. The publication of information on the collateral provided might also diminish the flexibility that national central banks must have in order to respond effectively to future liquidity crises, since it would create expectations as to the type of collateral that would be accepted in the future. It is essential that national central banks retain their flexibility to consider a wide range of collateral options.
152
In view of the content of Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision, the ECB, having drawn the applicant’s attention to the rules applicable to the grant of ELA and explained the ECB’s role in that regard, provided sufficient details enabling the applicant to understand that the information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided was generated and used in a context guided by considerations which were not confined to the individual situation of Banco Popular, but which essentially concerned the monetary policy and financial stability of the European Union and of Spain.
153
Information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided was included in the four documents concerned precisely for the purposes of the assessment, by the Governing Council of the ECB, of whether the Bank of Spain’s planned ELA operation would interfere with the objectives of the European System of Central Banks (ESCB), of which monetary policy and financial stability form part, in accordance with Article 127(1), (2) and (5) TFEU and Articles 2 and 3 of the Statute of the ESCB and of the ECB. In other words, the rationale behind those documents lies in the very fact that that information relates to considerations which go beyond Banco Popular’s specific situation. As the ECB rightly points out, information concerning the ELA ceiling and the amount of ELA actually granted reveals the ECB’s position as to the marginal amount of ELA which may be granted without running the risk of frustrating the objectives of the European Union’s monetary policy.
154
In the light of the foregoing, it must be concluded that the ECB did not infringe the principle that the exceptions to the right of access provided for in Decision 2004/258 must be interpreted strictly in finding that information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided fell within the scope of the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258.
155
The first complaint of the second plea must therefore be rejected.
(b)
Second complaint: the refusal to grant access was not intended actually and specifically to protect the public interests at issue
156
By its second complaint, the applicant claims that the ECB committed a manifest error of assessment regarding whether disclosure of the requested information could specifically and actually impair the effectiveness of the monetary policy and financial stability of the European Union or of a Member State.
157
As the applicant rightly points out, it has been held that the ECB must be recognised as enjoying a broad discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by a number of the exceptions laid down in Decision 2004/258 is liable to undermine the public interest at issue.
158
As regards the second and seventh indents of Article 4(1)(a) of Decision 2004/258, the existence of such discretion was expressly recognised in several judgments, including those of 29 November 2012, Thesing and Bloomberg Finance v ECB (T‑590/10, not published, EU:T:2012:635, paragraphs 43 and 44); of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB (T‑376/13, EU:T:2015:361, paragraph 53); and of 27 September 2018, Spiegel-Verlag Rudolf Augstein and Sauga v ECB (T‑116/17, not published, EU:T:2018:614, paragraph 42).
159
That broad discretion was based, by analogy with the case-law relating to Article 4(1)(a) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), on the finding that the particularly sensitive and essential nature of the interests protected by Article 4(1)(a) of Decision 2004/258, combined with the fact that access must be refused by the institution, under that provision, if disclosure of a document to the public would undermine those interests, confers on the decision which must thus be adopted by the institution a complex and delicate nature which calls for the exercise of particular care (judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 44; also see, by analogy, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 35; of 27 November 2019, Izuzquiza and Semsrott v Frontex, T‑31/18, EU:T:2019:815, paragraph 64; and of 25 November 2020, Bronckers v Commission, T‑166/19, EU:T:2020:557, paragraph 34).
160
Furthermore, the recognition that the ECB enjoys a broad discretion was also guided by the fact that the criteria set out in Article 4(1)(a) of Decision 2004/258 are very general (judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 43; also see, by analogy, judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 36).
161
According to the case-law, 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 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 53 and the case-law cited; judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 54).
162
In addition, given the limited scope of the review conducted by the EU Courts, the ECB’s compliance with its obligation to provide a statement of reasons takes on even more fundamental importance. Indeed, only in this way can the EU Courts verify whether the factual and legal elements upon which the exercise of the power of assessment depends were present (see judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 54 and the case-law cited; judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 54).
163
In the present case, it cannot be claimed that the ECB manifestly erred in taking the view that disclosure of the ELA ceiling, the amount of ELA actually granted and the collateral provided could actually and specifically undermine the monetary policy and financial stability of the European Union or of a Member State.
164
It must be noted that in both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision, the ECB established a specific causal link between the potential disclosure of the information at issue and the specific harm to the protected public interests.
165
Thus, as regards the ELA ceiling and the amount of ELA actually granted, the ECB explained that disclosure of that information could undermine the financial stability and monetary policy of the European Union because, since the Spanish market had been weakened following the resolution of Banco Popular, such disclosure might revive tensions vis-à-vis financial institutions and fuel unwarranted speculation as regards the situation of Banco Santander. Those detrimental effects on the Spanish market could then have spillover effects in other Member States’ markets, which could have adverse consequences for the financial stability of the European Union. Moreover, the ex post publication of the information concerned would considerably reduce the ability of national central banks and the ECB to manage ELA operations in a flexible way in the future. Market participants’ awareness of that specific information would create an expectation that the same approach would be followed where there was no justification for doing so. Such an expectation could also result in unwarranted speculation among market participants, which might hamper the ability of the ECB’s Governing Council to assess whether an envisaged ELA operation interferes with the objectives and tasks of the Eurosystem, since the Governing Council would also have to factor in the possible effects of publishing the parameters of the operation concerned on financial stability and monetary policy in future cases.
166
Furthermore, as regards the collateral provided, the ECB explained that that information is an indicator of the stress level faced by a credit institution in so far as such collateral is potentially collateral that is not regarded as being eligible for use in standard monetary policy operations. The possible publication of that information might deter credit institutions from having recourse to ELA or from requesting it in good time for fear of market exposure. Market participants might also be tempted to request additional or different collateral in exchange for operating with the institution concerned or might stop lending money to that institution, which would pose a genuine threat to financial stability in the Member State concerned. Disclosure of that information, even ex post, could also have the effect of limiting the ability of national central banks to consider a wide range of possible collateral in a flexible way, since knowledge of the approach they have endorsed in the past would create expectations as to the type of collateral that might be accepted in the future. That would curtail their ability to respond effectively to future liquidity problems and would undermine the effectiveness of ELA as a tool for maintaining financial stability.
167
It must be observed that the applicant has not put forward any specific arguments, let alone evidence, capable of calling into question the merits of the ECB’s reasoning set out in paragraphs 165 and 166 above. By merely invoking the fact that the requested information relates solely to the situation of Banco Popular over a short, fixed period, the applicant does not call into question the ECB’s reasoning that disclosure of the information concerned could have adverse consequences for the financial stability and monetary policy of the European Union in the future.
168
In the light of the foregoing, it must be held that the ECB did not commit a manifest error of assessment in finding that the disclosure of information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided would specifically and actually undermine the public interest in the monetary policy and financial stability of the European Union or of Spain.
169
Accordingly, the second complaint and, therefore, the second plea in its entirety must be dismissed.
170
Given that the refusal to grant access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided is lawfully based on the second and seventh indents of Article 4(1)(a) of Decision 2004/258, the finding made in paragraph 124 above that the second contested decision does not contain an adequate statement of reasons inasmuch as it refused access to that information on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, in so far as that information was contained in the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’, the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’ and the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’, does not give grounds to annul the second contested decision in that respect.
E. First plea in law: infringement of Article 4(1)(c) of Decision 2004/258 in the contested decisions
171
The first plea revolves around three complaints alleging that (i) the ECB wrongly applied a general presumption of confidentiality on the basis of Article 4(1)(c) of Decision 2004/258; (ii) the conditions laid down in the judgment of 19 June 2018, Baumeister (C‑15/16, EU:C:2018:464; ‘the judgment in Baumeister’), are not satisfied; and (iii) the exemptions from the principle of confidentiality, provided for in the third subparagraph of Article 53(1) of Directive 2013/36 and Article 84(6) of Directive 2014/59 apply.
172
Before examining the arguments raised in the first plea, it should be borne in mind first of all that the ECB invoked the application of Article 4(1)(c) of Decision 2004/258 in all three contested decisions. In the first contested decision, the ECB relied on that provision in order to refuse access to the document containing an overview of the daily balance (positive or negative) of deposits, that is to say both withdrawals and deposits, and information relating to the liquidity coverage capacity of Banco Popular from 3 April 2017. In the second contested decision, the ECB redacted information relating to Banco Popular’s liquidity situation and capital ratios in the letters from the Governor of Spain and the Executive Board’s proposal, inter alia, on the basis of Article 4(1)(c) of Decision 2004/258. The third contested decision relies on the application, in particular, of that provision in order to refuse access to the FOLTF assessment and the documents that Banco Popular sent to the ECB and the Bank of Spain in the context of the SSM between 1 and 6 June 2017.
173
It must be observed that the second contested decision also contains a refusal to grant access to other information, namely the ELA ceiling, the amount of ELA granted and the collateral provided, which was not based on Article 4(1)(c) of Decision 2004/258. As the Court found in its examination of the second plea, the refusal to grant access to that information is lawfully based on the second and seventh indents of Article 4(1)(a) of Decision 2004/258.
1.
First complaint: the ECB wrongly applied a general presumption of confidentiality on the basis of Article 4(1)(c) of Decision 2004/258
174
In its first complaint, the applicant submits that, in the three contested decisions, the ECB wrongly relied on the application of a general presumption of confidentiality in order to refuse access to the requested documents. According to the applicant, such a presumption, which is based on the requested documents being protected by an obligation of professional secrecy on the part of the EU institutions, does not exist in the present case.
175
Although the applicant concedes that the application of general presumptions of confidentiality in certain specific cases has been accepted in case-law, it argues that that case-law cannot be transposed to the present case since the duty of professional secrecy applies to all the institutions under Article 339 TFEU, so that, if the ECB’s logic were to be followed, any document of an EU institution would always be covered by a general presumption based precisely on that duty. That would render meaningless the principle of transparency and the right of access to documents as provided for in Article 41 of the Charter.
176
The ECB contends that a general presumption of confidentiality applies in the present case. It refers, in that regard, to the case-law of the Court of Justice and the General Court, in which the existence of such presumptions has been recognised in the areas of State aid, mergers and concerted practices. According to the ECB, the underlying logic of that case-law, namely the need to guarantee the smooth functioning of procedures in those areas and ensure that their objectives are not jeopardised by preventing the right of access from being used to circumvent the specific rules providing for limited access to the file, also applies to the area of prudential supervision.
177
The ECB submits that unlike competition law procedures, which start and end with a decision, the ECB’s prudential banking supervision is ongoing in nature. Thus, the various risks posed by credit institutions subject to prudential supervision are continuously assessed on the basis of information regularly provided by them. In addition, while the general presumptions of confidentiality accepted in other areas essentially protect the integrity of specific administrative procedures, the ECB’s confidentiality obligations are intended moreover to protect the functioning of the prudential banking supervision mechanism as a whole and, therefore, the stability of the financial markets.
178
In the light of those considerations, the ECB maintains that Article 4(1)(c) of Decision 2004/258 should be interpreted as providing a level of protection for its prudential supervision files that is at least equivalent to the protection which the Court of Justice has recognised in the area of merger control.
179
In that context, the ECB disputes the applicant’s argument that any document of an EU institution is always covered by an obligation of professional secrecy because Article 339 TFEU is applicable to all EU institutions. The ECB contends that its duty of professional secrecy in the exercise of its prudential supervisory tasks reflects the particular nature of its supervisory activities. That duty is, moreover, clearly defined and specific in terms of its scope ratione personae. It therefore differs from the general obligation of professional secrecy enshrined in Article 339 TFEU. Furthermore, the obligations of professional secrecy imposed by Article 339 TFEU and Article 37 of the Statute of the ESCB and of the ECB are not an absolute bar to disclosure, but prevent only the improper disclosure of confidential information.
180
It must be stated at the outset that the first complaint is based in part on a misreading of the contested decisions. Although the applicant asserts that ‘the’ contested decisions infringe Article 4(1)(c) of Decision 2004/258 on the ground that, in those decisions, the ECB relied on a general presumption of confidentiality to refuse access to the requested documents, the fact of the matter is that only the first and third contested decisions are based on such a presumption, which the ECB confirmed at the hearing.
181
Concerning the second contested decision, as the Court noted in paragraph 172 above, that decision relies on Article 4(1)(c) of Decision 2004/258 in order to refuse access to information relating to Banco Popular’s liquidity situation and capital ratios. As the ECB explained at the hearing, instead of applying a general presumption to refuse access to that information, it carried out a specific and individual examination of the four documents to which it granted partial access to determine whether that information was protected by the exception provided for in Article 4(1)(c) of Decision 2004/258. That approach is in line with the case-law that recourse to a general presumption of confidentiality is merely an option for the EU institution, body, office or agency concerned and the latter always retains the possibility of carrying out a specific and individual examination of the documents in question (judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 61).
182
Next, it should be borne in mind that the case-law which established the existence of general presumptions of confidentiality is based on the fact that the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 cannot, where the documents subject to the application for disclosure fall within a particular area of EU law, be interpreted without taking account of the specific rules governing access to those documents. Those general presumptions thus make it possible to ensure consistency in the application of legal rules which pursue different objectives and do not expressly provide for one to take precedence over the other (see judgment of 19 September 2018, Chambre de commerce et d’industrie métropolitaine Bretagne-Ouest (port de Brest) v Commission, T‑39/17, not published, EU:T:2018:560, paragraph 55 and the case-law cited).
183
The application of general presumptions is essentially dictated by the overriding need to ensure that the procedures at issue operate correctly, and to guarantee that their objectives are not jeopardised. Accordingly, a general presumption may be recognised on the basis that access to the documents involved in certain procedures is incompatible with the proper conduct of such procedures and the risk that those procedures could be undermined, it being understood that general presumptions ensure that the integrity of the conduct of the procedure can be preserved by limiting intervention by third parties (see judgment of 28 May 2020, Campbell v Commission, T‑701/18, EU:T:2020:224, paragraph 50 and the case-law cited).
184
As general presumptions constitute an exception to the rule that the EU institution concerned is obliged to carry out a specific and individual examination of every document which is the subject of a request for access and, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union, they must be interpreted and applied strictly (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 80 and the case-law cited; judgment of 28 May 2020, Campbell v Commission, T‑701/18, EU:T:2020:224, paragraph 39).
185
It is in the light of those factors that it is necessary to examine whether the ECB was right to apply a general presumption of confidentiality based on Article 4(1)(c) of Decision 2004/258.
186
In that regard, first, it must be observed that Article 4(1)(c) of Decision 2004/258 provides that the ECB must refuse access to a document where disclosure would undermine the protection of the confidentiality of information protected as such ‘under Union law’.
187
It must be stated that in the light of the wording of Article 4(1)(c) of Decision 2004/258, a general presumption of confidentiality based on that provision would not be clearly and precisely circumscribed in scope.
188
As regards the confidential nature of information which is deserving of protection as such, Article 4(1)(c) of Decision 2004/258, by referring to EU law, does not have specific content of its own and its application depends on reference to other rules of EU law applicable to the circumstances in which the documents to which access is sought were drawn up.
189
Article 4(1)(c) of Decision 2004/258 thus establishes a link between the rules governing public access to ECB documents and the rules of professional secrecy to which the ECB and its staff are subject under EU law, thus seeking to ensure that the ECB complies with its obligations of professional secrecy also in the context of applications for access to its documents.
190
The recognition of a general presumption of confidentiality based on a provision that is not clearly circumscribed in scope does not satisfy the requirements of legal certainty, which is one of the general principles of EU law and requires that rules of law be clear, precise and predictable in their effects, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (judgments of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 111; of 25 November 2020, ACRE v Parliament, T‑107/19, not published, EU:T:2020:560, paragraph 66; and of 9 December 2020, Adraces v Commission, T‑714/18, not published, EU:T:2020:591, paragraph 37). Compliance with the requirements flowing from that principle is all the more important where the rules of law in question may have negative consequences for individuals and undertakings (see, to that effect, judgments of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 111, and of 26 March 2020, HUNGEOD and Others, C‑496/18 and C‑497/18, EU:C:2020:240, paragraph 93 and the case-law cited). In particular, that principle requires that EU rules enable those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons are able to ascertain unequivocally what their rights and obligations are and take steps accordingly (judgment of 10 March 2009, Heinrich, C‑345/06, EU:C:2009:140, paragraph 44).
191
Moreover, accepting that a general presumption of confidentiality exists based on a provision which is not clearly circumscribed in scope would be at variance with the case-law set out in paragraph 184 above, according to which, since presumptions are an exception to the principle of the widest possible access, they must be interpreted strictly.
192
Second, the recognition of a general presumption of confidentiality based on Article 4(1)(c) of Decision 2004/258 cannot be reconciled with the approach endorsed by the Court of Justice in the judgment in Baumeister.
193
In that judgment, which was delivered after the adoption of the decisions forming the subject matter of this dispute, the Court of Justice interpreted the notion of confidential information set out in Article 54 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1). In that regard, it must be observed that Article 54 of Directive 2004/39 establishes the general rule that disclosure of confidential information held by the competent authorities is prohibited and lists exhaustively the specific cases where, exceptionally, that general prohibition does not preclude the communication or use of that information (the judgment in Baumeister, paragraph 38).
194
In paragraph 46 of the judgment in Baumeister, the Court of Justice held that all information relating to a supervised entity and communicated by it to the competent authority, and all statements of that supervisory authority in its supervision file, including its correspondence with other bodies, does not constitute, unconditionally, confidential information that is covered by professional secrecy as provided for in Article 54 of Directive 2004/39. By contrast, according to the Court of Justice, 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, is to be so classified.
195
The parties do not dispute that the Court of Justice’s interpretation of Article 54 of Directive 2004/39 in the judgment in Baumeister should be transposed to the present case, since that provision is worded in very similar terms to the provisions on which the ECB relied in the present case as constituting ‘Union law’ under Article 4(1)(c) of Decision 2004/258, namely the second subparagraph of Article 53(1) of Directive 2013/36 and Article 84(3) of Directive 2014/59. Article 54 of Directive 2004/39, the second subparagraph of Article 53(1) of Directive 2013/36 and Article 84(3) of Directive 2014/59 all prohibit the competent authorities from disclosing ‘confidential information’ held by them, save in summary or aggregate form such that the entities concerned cannot be identified.
196
Thus, the application of the second subparagraph of Article 53(1) of Directive 2013/36 and Article 84(3) of Directive 2014/59 presupposes that the ECB has checked that the two conditions set out in the judgment in Baumeister are satisfied in respect of each item of information to which access is requested. If those conditions are in fact satisfied, the ECB must refuse access to the information at issue. The provisions concerned leave no discretion in that regard, as the Court of Justice confirmed in paragraph 43 of the judgment in Baumeister. That process necessarily requires a specific and individual examination of each item of information concerned, which cannot be circumvented by the application of a general presumption of confidentiality.
197
Third, it must be borne in mind that the exception laid down in Article 4(1)(c) of Decision 2004/258 is an ‘absolute’ exception. Unlike exceptions whose application is based on a balance being struck between the relevant interests, the application of an absolute exception is mandatory where disclosure of the document concerned to the public is liable to undermine the interests which that exception protects.
198
According to settled case-law, the application of a general presumption does not rule out the possibility of demonstrating that a specific document, disclosure of which has been requested, is not covered by that presumption, or that there is an overriding public interest in disclosure of the document concerned by virtue of the last clause of Article 4(2) of Regulation No 1049/2001 (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 62; also see judgments of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 46 and the case-law cited, and of 28 May 2020, Campbell v Commission, T‑701/18, EU:T:2020:224, paragraph 37 and the case-law cited).
199
The fact that a general presumption may, according to the case-law cited in paragraph 198 above, be rebutted if it can be shown that an overriding public interest exists is at odds with the fact that the exception laid down in Article 4(1)(c) of Decision 2004/258 is an ‘absolute’ exception and therefore does not provide for any balancing exercise involving such an overriding interest.
200
Similarly, it should be recalled, as explained in paragraph 181 above, that recourse to a general presumption of confidentiality is merely an option for the EU institution, body, office or agency concerned and the latter always retains the possibility of carrying out a specific and individual examination of the documents in question (judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:30, paragraph 61).
201
In the present case, as the ECB submits in paragraph 94 of the defence and having regard to the findings made in paragraphs 228, 271 and 302 below, irrespective of whether or not a general presumption is applied to the information to which access was refused in the first and third contested decisions, that information constitutes, on any view, ‘confidential information’ which is covered by the application of Article 4(1)(c) of Decision 2004/258.
202
It follows that whatever the outcome of the examination of the first complaint of the first plea, it cannot call into question the lawfulness of the first and third contested decisions since, in the light of the rejection of the second and third complaints of the first plea, the information at issue is nevertheless covered by the exception laid down in Article 4(1)(c) of Decision 2004/258.
203
Therefore, even if the ECB sought to apply, by mistake, a general presumption of confidentiality in the first and third contested decisions, the first complaint of the first plea must be dismissed as ineffective.
2.
Second complaint: the requested information is not confidential information
204
In the second complaint, the applicant takes issue with the ECB for having refused access to information in the public domain. It also submits that the ECB failed to explain, to the requisite legal standard, the damage which access to the requested documents could cause both to the commercial interests of Banco Popular and Banco Santander and to the proper functioning of the prudential supervision system.
205
Those arguments essentially raise the question of whether the requested documents contain confidential information within the meaning of the second subparagraph of Article 53(1) of Directive 2013/36 and Article 84(3) of Directive 2014/59.
206
It is therefore necessary to examine whether the requested documents contained confidential information, that is, information (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 prudential supervision system (see, by analogy, the judgment in Baumeister, paragraph 46). Those two conditions will be examined in turn.
(a)
Whether the requested information is of a public nature
207
In the application, the applicant submits that the market was aware of most of the information relating to the resolution of Banco Popular, either in summary form or indirectly, since the information had appeared in the press and listed banks are subject to numerous transparency obligations. Thus, the applicant asserts that the market already knew that Banco Popular had faced liquidity problems which led to its resolution. It argues that disclosing the details of the resolution would not alter the market’s perception of what happened.
208
In its observations on the statements in intervention of the Commission and Banco Santander, the applicant refers to numerous press articles and produces several of them concerning Banco Popular’s ELA request and its liquidity situation, which it claims prove that that information is public.
209
In those observations, the applicant states, in essence, that Banco Santander itself does not consider the requested information to be confidential information. In that regard, the applicant submits that Banco Popular published data on short-term ratios in its annual and quarterly reports and that it also published its loan-to-deposit ratio, one of the indicators of its liquidity. Furthermore, the Asociación Española de Banca (Spanish Banking Association; ‘AEB’) published monthly financial statements for each bank setting out the volume of deposits and the volume of loans. Those data enable the loan-to-deposit ratio to be calculated. According to the applicant, Banco Santander does not explain why those data are allowed to be public while other liquidity indicators to which it has requested access should remain confidential.
210
According to the ECB, those claims are inadmissible or, at the very least, unfounded. It denies that the information to which it refused access on the basis of Article 4(1)(c) of Decision 2004/258 was in the public domain when the contested decisions were adopted. It also states that the applicant has not succeeded in identifying the information to which its claims relate.
211
In response to the ECB’s assertions, the applicant clarified its arguments and provided additional documents to support them. Thus, first, as regards the documents concerned by the third contested decision, the applicant refers to an annex containing press articles mentioning the existence and content of the letter which Banco Popular sent to the ECB on 6 June 2017. Second, as for the documents ‘relating to the liquidity of Banco Popular’, which are the subject of the first contested decision, the applicant states that that information was published either in the annual and quarterly reports of Banco Popular or internally within the AEB, of which Banco Popular was a member, with a view to publication. In that regard, the applicant refers to the documents attached to its observations on the Commission’s statement in intervention. Third, concerning the information relating to the grant of ELA, which is the subject of the second contested decision, the applicant refers to the annexes it submitted with its observations on the statements in intervention of the Commission and Banco Santander and also attached additional press articles which, in its view, confirm that the information was in the public domain.
212
In the first place, it must be observed that the ECB did not rely on the exception provided for in Article 4(1)(c) of Decision 2004/258 as a basis for its refusal to grant access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided (see, in that regard, paragraph 89 above). In so far as the applicant’s claims in the present complaint concern that information, they must be rejected as ineffective.
213
In the second place, it must be recalled that according to settled case-law, Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure provide that the application initiating proceedings must contain a brief statement of the pleas on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if appropriate, without other supporting information. The application must, accordingly, specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (see, to that effect, judgments of 7 June 2018, Winkler v Commission, T‑369/17, not published, EU:T:2018:334, paragraph 53 and the case-law cited, and of 13 May 2020, Peek & Cloppenburg v EUIPO – Peek & Cloppenburg (Peek & Cloppenburg), T‑446/18, not published, EU:T:2020:187, paragraph 29).
214
Whilst the body of the application may certainly be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (see, to that effect, judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 40 and the case-law cited).
215
Thus, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 94 and the case-law cited; judgment of 24 February 2021, Universität Koblenz-Landau v EACEA, T‑606/18, not published, EU:T:2021:105, paragraph 61).
216
It must be held, in the light of that case-law, that the applicant’s claims are not sufficient to mount a valid challenge to the ECB’s assertion that the requested information was not in the public domain when the contested decisions were adopted. The applicant has not adduced any tangible evidence to substantiate its claims, with the result that the Court is not in a position to determine whether they are true. In consequence, the applicant fails to specify, in the body of its pleadings, the precise information which it considers to be public and merely makes a general reference to approximately 10 annexes totalling more than 1000 pages. The applicant does not identify the extracts from the annexes demonstrating that any of the requested items of information was public when the contested decisions were adopted.
217
In the third place, it must be observed, as the ECB rightly submits, that the ECB cannot be required to monitor the publication of material by the credit institutions concerned, the competent national authorities or the press.
218
Accordingly, in paragraph 56 of its judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117), the Court of Justice stated, in essence, that the confidentiality of certain information may be relied upon on condition that such information has not been made public by the ECB, and that the fact that comparable information has been published by third parties is not, per se, such as to require the ECB to disclose that information. Therefore, even if the press articles mentioned by the applicant contained information which was very similar to that contained in the requested documents, that does not mean that the ECB would be under an obligation to grant access to those documents.
219
Furthermore, the unauthorised disclosure of a document cannot have the effect of granting public access to a document covered by one of the exceptions provided for in Article 4 of Decision 2004/258 (see, by analogy, judgment of 25 October 2013, Beninca v Commission, T‑561/12, not published, EU:T:2013:558, paragraph 55).
220
In the fourth place, a reading of the requested documents suggests that the information contained therein is known only to a limited number of persons and is therefore not public in nature (see, to that effect, judgment of 30 May 2006, Bank Austria Creditanstalt v Commission, T‑198/03, EU:T:2006:136, paragraph 71).
221
Thus, as regards, first, the FOLTF assessment, a reading of the full text of that assessment shows that the extracts to which access was refused essentially contained financial information relating to Banco Popular’s capital and liquidity situation in the weeks preceding the drawing up of the assessment. As the ECB confirmed at the hearing, such information is not regularly or habitually published by the credit institution concerned, the national central bank or the ECB; rather, that information is sought out specifically in order to assess whether the supervised credit institution continues to satisfy the conditions for authorisation laid down in Directive 2013/36.
222
Second, as for the letter which Banco Popular sent to the ECB on 6 June 2017, the applicant asserts that even though the existence of that letter and its contents are mentioned in the press articles it produced, those references are very generic and do not disclose any of the data contained in that letter.
223
Third, concerning the document which is the subject of the first contested decision, namely the overview of the daily balance of the deposits of Banco Popular from 3 April 2017, the ECB explained in that decision that that document contains information which is not usually communicated to it but which it exceptionally began to collect on 3 April 2017. The ECB adds that that document was drawn up in the context of the prudential supervision of Banco Popular with a view to preparing the FOLTF assessment.
224
There is nothing in the applicant’s arguments to support the conclusion that that information gathered exceptionally by the ECB was public when the first contested decision was adopted. The applicant merely asserts that Banco Popular and the AEB published certain data enabling ‘Banco Popular’s liquidity indicators’ to be calculated. It states that it was unclear as to why ‘other indicators to which [it] seeks access are confidential’. Therefore, far from adducing even minimal evidence that the information to which it seeks access is public, the applicant instead confirms that such information is not in the public domain.
225
Fourth, with respect to the information to which the ECB refused access in the second contested decision on the basis of Article 4(1)(c) of Decision 2004/258, namely information relating to Banco Popular’s liquidity situation and capital ratios, it must be observed that the three documents containing that information were intended for internal use as part of the deliberations of the Governing Council of the ECB. Accordingly, by their very nature, those three documents were intended to be disclosed only to a limited number of persons.
226
In the fifth place, the applicant is also unable to rely on the argument that Banco Santander itself acknowledged that the requested information was not confidential since, in its contacts with the institutions, Banco Santander merely objected to the disclosure of certain specific information liable to harm its commercial interests, namely data relating to its customers, the consequences of the resolution mechanism for joint venture agreements and the details and evaluation of the policy for measuring Banco Popular’s legal risks as of 6 June 2017.
227
As Banco Santander confirmed at the hearing, the contacts referred to took place in the context of proceedings for access to documents before the SRB and did not concern information held and used by the ECB. Furthermore, contrary to the applicant’s claims, Banco Santander clearly submits in its statement in intervention that, in its view, the information requested in the present case was confidential when the contested decisions were adopted.
228
In the light of the foregoing, it must be held that there is nothing in the file to support the conclusion that the information to which access was refused on the basis of Article 4(1)(c) of Decision 2004/258 was in the public domain when the contested decisions were adopted.
(b)
Whether disclosure is likely to affect adversely the interests of the natural or legal person who provided the requested information or of third parties, or the proper functioning of the prudential supervision and resolution system
229
The second condition laid down by the Court of Justice in the judgment in Baumeister which must be satisfied if information is to be classified as confidential requires an examination of whether the disclosure of that information is likely to affect adversely the interests of the natural or legal person who provided it or of third parties, or the proper functioning of the prudential supervision and resolution system (the judgment in Baumeister, paragraph 46). The arguments put forward by the applicant in relation to that condition are divided into two parts.
(1) First part: disclosure of the requested documents would not adversely affect the interests of the person who provided the information contained in them or of third parties
230
In the first place, the applicant claims that because of the nature of the requested information, its disclosure would not have an appreciable effect on the commercial interests of Banco Popular or Banco Santander.
231
In that regard, the applicant states, first, that the information at issue belongs to the past. According to an economic report annexed to the application, only current and future data are important to the market and to institutions on the financial markets. In view of the particularities of the financial sector, where information circulates rapidly and operators draw quick conclusions from what they consider to be relevant information, information soon becomes outdated and thus worthless on the market. The applicant submits that this is precisely the case in respect of information concerning the collateral provided, the liquidity situation and capital ratios of Banco Popular, and its likely or actual failure. Even if that information is normally regarded as commercially sensitive, the applicant claims that it is no longer relevant to the financial market or to competitors since it predates the resolution of Banco Popular and therefore no longer reflects its current situation. All information prior to resolution has therefore become historical information and cannot be regarded as confidential.
232
The applicant also claims that the case-law follows a case-by-case approach in assessing whether information is historical. Although the judgment in Baumeister established a rebuttable presumption that information which is more than five years old is historical, it cannot be inferred from that judgment that information less than five years old cannot on any account be classified as historical information.
233
It must be borne in mind, at the outset, that according to settled case-law, in an action for annulment under Article 263 TFEU, the lawfulness of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgments of 28 January 2021, Qualcomm and Qualcomm Europe v Commission, C‑466/19 P, EU:C:2021:76, paragraph 82 and the case-law cited, and of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 84 and the case-law cited; also see, to that effect, the judgment in Baumeister, paragraph 50). Thus, as Banco Santander correctly points out, the date which the Court must take into account in assessing the lawfulness of the ECB’s refusal to grant access to the requested information is therefore the date on which the contested decisions were adopted, namely 7 November 2017.
234
Accordingly, the applicant’s claim that the requested information is no longer relevant to the financial market or to competitors, since it predates the resolution of Banco Popular and thus no longer reflects its current situation, cannot be upheld.
235
Next, the Court of Justice stated in paragraph 54 of the judgment in Baumeister 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.
236
In that regard, Banco Santander submits, without being contradicted by the other parties, that the requested information mainly dates back to the period immediately preceding the resolution and, in some instances, to the beginning of 2017.
237
Consequently, the requested information was at most a few months old when the contested decisions were adopted and thus could not, in the light of the criteria mentioned in paragraphs 233 and 235 above, be regarded as historical information.
238
That finding cannot be called into question by the applicant’s argument that the judgment in Baumeister contains nothing to suggest that information under five years old cannot on any account be classified as historic information and a case-by-case approach is called for. In particular, in a case such as the present case, in which the requested information concerns the commercial position of a credit institution that was subject to a resolution scheme, the applicant contends that that information automatically became historical after the adoption of the resolution tool.
239
It cannot be accepted that the adoption of a resolution scheme gives rise to a fresh presumption that information relating to the commercial position of the credit institution subject to the resolution scheme automatically becomes historical. That approach would, as a matter of principle, preclude the application of the exception laid down in Article 4(1)(c) of Decision 2004/258, read together with the second subparagraph of Article 53(1) of Directive 2013/36 and Article 84(3) of Directive 2014/59.
240
As the ECB, the Commission and Banco Santander rightly point out, Banco Popular remained in business as part of the Banco Santander group after 7 June 2017, until 28 April 2018 when it was merged by absorption with Banco Santander.
241
One of the reasons why the SRB decided to adopt a resolution scheme in respect of Banco Popular was to ensure the continuity of its critical functions, in accordance with Article 14(2)(a) of Regulation No 806/2014. Thus, the sale of Banco Popular to Banco Santander enabled the former to continue to operate under normal market conditions as a member of the Santander group.
242
It follows that the ECB was entitled to take the view that disclosure of the daily balance of the deposits of Banco Santander from 3 April 2017, of Banco Popular’s liquidity situation and capital ratios, of information on Banco Popular’s market position, of its assets and liabilities, and of the assessment of the impact of Banco Popular’s liquidity situation on the funding and operating structure of its subsidiary Banco Popular Portugal, was capable, when the contested decisions were adopted, of adversely affecting the interests of Banco Popular or those of its parent company, notwithstanding the application of a resolution tool.
243
In the second place, the applicant submits, in essence, that the ECB has not succeeded in demonstrating that disclosure of the requested information could specifically and actually undermine the commercial interests of Banco Santander and Banco Popular. The applicant considers, in that regard, that the statement of reasons for the contested decisions is very generic and could apply to any bank. It also states that the ECB did not genuinely take into account the resolution of Banco Popular or the exceptional nature of the situation.
244
In that regard, it must be stated at the outset that the applicant has not formally raised a plea alleging breach of the duty to state reasons. On reading the applicant’s pleadings, it appears instead that the applicant disagrees with the reasons put forward by the ECB.
245
It is apparent from settled case-law that the duty to state reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will affect the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a plea alleging an inadequate statement of reasons or a lack of such a statement (see judgments of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 85 and the case-law cited, and of 29 April 2020, Tilly-Sabco v Council and Commission, T‑707/18, not published, EU:T:2020:160, paragraph 103 and the case-law cited).
246
In the first contested decision, the ECB stated that disclosure of the requested document would have adverse consequences for the credit institution concerned, since that institution could no longer be sure that the information provided to the ECB for the purposes of its prudential supervision would remain confidential. The ECB also made clear in that decision that those rules on confidentiality apply irrespective of whether a bank has been the subject of a resolution scheme.
247
In the second contested decision, the ECB explained, as regards information relating to Banco Popular’s liquidity situation and capital ratios, that disclosure of that information would fuel speculation among market participants as to Banco Santander’s liquidity situation and its financing needs which, in turn, could generate unwarranted funding pressures.
248
In the third contested decision, the ECB found that the requested information related to Banco Santander’s commercial position on the market and to its assets and liabilities and that disclosure of that information could have a detrimental impact on the commercial interests of Banco Popular and Banco Santander. In particular, according to the ECB, the assessment of the impact of Banco Popular’s liquidity situation on the funding and operating structure of its subsidiary Banco Popular Portugal was commercially sensitive and could trigger unwarranted speculation about the group’s financial and liquidity situation. That decision also states that the rules governing professional secrecy apply irrespective of whether a bank has been resolved.
249
Therefore, the ECB was entitled to take the view that the information to which it refused access on the basis of Article 4(1)(c) of Decision 2004/258 was capable, when the contested decisions were adopted, of specifically and actually undermining the interests of Banco Popular or of Banco Santander. The fact that the contested decisions contain only a very brief statement of reasons as to why such an adverse effect could be presumed notwithstanding the application of a resolution tool to Banco Popular in no way detracts from that finding.
250
In the light of the foregoing, the Court must reject the first part, alleging that disclosure of the requested information would not harm the interests of Banco Popular or of Banco Santander.
(2) Second part: disclosure of the requested documents would not adversely affect the proper functioning of the prudential supervision system
251
Before considering the arguments put forward by the applicant, it is necessary to bear in mind the considerations set out in paragraphs 157 to 162 above.
252
As the Commission rightly submits, the case-law according to which the ECB enjoys a broad discretion for the purpose of determining whether the disclosure of certain information could undermine a public interest as provided for in Article 4(1)(a) of Decision 2004/258 should be transposed to the assessment the ECB is required to carry out when applying the second condition in the judgment in Baumeister. The assessment of whether the proper functioning of the prudential supervision and resolution system is likely to be adversely affected is not dissimilar to the assessment of whether the public interest is likely to be undermined.
253
Furthermore, in accordance with the case-law referred to in paragraph 159 above, the ECB’s 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.
254
Moreover, the criteria laid down by the Court of Justice in the judgment in Baumeister in order to assess whether the proper functioning of the system for monitoring the activities of investment firms might be adversely affected, which are applicable by analogy in the context of prudential supervision and resolution, are very general, as required by the case-law set out in paragraph 160 above.
255
It follows, first, that the review of legality which the General Court is called upon to carry out in that context is limited to the review provided for in the case-law cited in paragraph 161 above and, second, that the ECB’s compliance with its obligation to provide sufficient reasons for its decisions takes on, in principle, even more fundamental importance (see, in that regard, paragraph 162 above).
256
In the present case, the ECB stated in the first contested decision that the document containing information concerning the daily balance of the deposits of Banco Popular was part of the administrative file relating to the ongoing supervision of Banco Popular and the final analysis of whether it was failing or was likely to fail.
257
In the second contested decision, the ECB stated that the applicant had not disputed the analysis conducted in Decision LS/PT/2017/66 of 11 August 2017, according to which the document entitled ‘Emergency liquidity assistance request from Banco de España’ of 5 June 2017 contained information concerning Banco Popular’s liquidity situation and capital ratios. It went on to explain that that information had been provided to it by Banco Popular in the context of its ongoing prudential supervision.
258
As regards the full text of the FOLTF assessment and the documentation provided by Banco Popular concerning, inter alia, its capital position, its liquidity situation and the other conditions for its continued authorisation, the ECB explained, in the third contested decision, that those documents were part of the administrative files concerning ongoing prudential supervision and the FOLTF assessment procedure. According to the ECB, those administrative files were related to the performance by the ECB of its tasks as competent supervisory authority, tasks laid down in Regulation No 1024/2013.
259
In all three contested decisions, the ECB also stated that in the performance of the tasks entrusted to it by Regulation No 1024/2013, it is bound by obligations of professional secrecy. Against that background, it set out the applicable legislative provisions, explained the content of the obligation of professional secrecy and stated that the exemptions from that obligation were not applicable in the present case.
260
The ECB concluded from this that the disclosure of confidential information arising from prudential supervision could have damaging consequences for both the credit institution directly concerned and the banking system in general, since banks could no longer be sure that the information provided to the ECB in the context of prudential supervision would remain confidential.
261
In the first and third contested decisions, the ECB referred, in that respect, to the judgments of 11 December 1985, Hillenius (110/84, EU:C:1985:495, paragraph 27), and of 12 November 2014, Altmann and Others (C‑140/13, EU:C:2014:2362, paragraphs 31 to 33). The ECB also stated in those decisions that the resolution of Banco Popular had not altered that bank’s status as supervised entity and that the rules on confidentiality therefore continued to apply vis-à-vis Banco Popular.
262
The ECB thus provided an explanation as to the need for protection on which it relied, arguing that disclosure of the requested documents would undermine, inter alia, the banking system in general.
263
Those findings are not invalidated by the applicant’s arguments.
264
First, the applicant’s argument that the statement of reasons is generic and formulaic must be dismissed. Account must be taken of the fact that it may be impossible to give the reasons justifying the refusal of access to each document, or in this instance to each piece of information in the documents, without disclosing the content of the document or an essential aspect of it and thereby depriving the exception of its very purpose. In the present case, because the requested document was covered by the public interest exceptions relating to the proper functioning of the prudential supervision and resolution system, any more complete and individualised demonstration of its content could jeopardise the confidentiality of information intended to remain confidential (see, by analogy, judgment of 26 April 2005, Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 84).
265
Second, the Court must also dismiss the argument that the disclosure of information such as liquidity ratios would in no way establish a precedent whereby that type of information would, in the future, be broadcast to the market, since Banco Popular’s resolution was of an exceptional nature.
266
The applicant has not succeeded in challenging the ECB’s assessment that the disclosure of certain information would be liable to undermine the mutual trust between the ECB and the institutions under supervision, trust which is needed for the prudential supervision mechanism. In that regard, the fact that the bank resolution remains exceptional and that certain information was collected only exceptionally by the ECB has no bearing on the risk that other institutions might no longer be sure that the information they are likely to provide to the ECB in the future in the context of prudential supervision will remain confidential.
267
Furthermore, according to the case-law, an EU institution may rely on the hypothetical conduct of market operators and on the effects of that conduct on future interventions (see, by analogy, judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 78).
268
Accordingly, the ECB was entitled to rely on the risk that market operators would engage in speculation based on the data concerning Banco Popular’s liquidity situation prior to its resolution, as long as it is reasonably foreseeable that such data could be regarded as information capable of giving rise to speculation and, thus, of jeopardising the proper functioning of the prudential supervision and resolution system.
269
On the basis of the foregoing considerations, it must be held that the applicant has not succeeded in demonstrating that the ECB committed a manifest error of assessment in considering that disclosure of the requested documents would be likely to adversely affect the proper functioning of the prudential supervision and resolution system.
270
It is therefore necessary to reject the second part, alleging that disclosure of the requested information would not adversely affect the proper functioning of the prudential supervision and resolution system.
271
Accordingly, it must be concluded that the requested documents to which the ECB refused access on the basis of Article 4(1)(c) of Decision 2004/258 contained confidential information within the meaning of the second subparagraph of Article 53(1) of Directive 2013/36 and Article 84(3) of Directive 2014/59.
3.
Third complaint: the exemptions provided for in the third subparagraph of Article 53(1) of Directive 2013/36 and Article 84(6) of Directive 2014/59 apply to the requested documents
272
By its third complaint, the applicant submits that the third subparagraph of Article 53(1) of Directive 2013/36 and Article 84(6) of Directive 2014/59 allow the ECB to grant access to the requested documents in or for the purpose of legal proceedings. It follows, in particular, from a teleological interpretation of those provisions that there is an exception to confidentiality where access to the requested documents is necessary for the purpose of exercising the right to effective judicial protection in legal proceedings related to the conduct of an EU institution or body.
273
The applicant adds that, according to the case-law, the assessment of whether information is confidential requires the legitimate interests opposing its disclosure to be weighed against the public interest. It claims that the specific features of the present case, namely the fact that Banco Popular’s former shareholders wish to learn of the circumstances in which the resolution of the bank took place, justify disclosure of the requested information. In that regard, it is of crucial importance, according to the applicant, that account be taken of the fact that it has brought two actions before the Court: one for annulment of the resolution mechanism (registered as Case T‑628/17) and another for non-contractual liability (registered as Case T‑714/17). The information requested in the present case is to serve solely as evidence in those two actions.
274
The applicant states that, among other things, it needs to be apprised of the liquidity problems which led to the resolution of Banco Popular, but that both the FOLTF assessment and the resolution scheme had been redacted in that regard. Access to that data would enable it to adduce evidence in support of its argument that Banco Popular’s liquidity situation was not sufficiently serious for its resolution to be declared and that any liquidity problems were linked to statements made by the Chair of the SRB.
275
The ECB, supported by the Commission and Banco Santander, disputes the applicant’s arguments.
276
In that regard, it must be observed, first of all, that the Court of Justice stated in paragraph 30 of its judgment of 13 September 2018, Buccioni (C‑594/16, EU:C:2018:717; ‘the judgment in Buccioni’), that the specific cases in which the general rule that disclosure of confidential information held by the competent authorities is prohibited, laid down in Article 53(1) of Directive 2013/36, does not, exceptionally, preclude their communication or use, are exhaustively set out in that directive. In addition, the Court stated in paragraph 37 of that judgment that the exemptions provided for in Directive 2013/36 from the general prohibition on the disclosure of confidential information must be interpreted strictly.
277
The same considerations apply, by analogy, to the exemption from the prohibition on disclosure laid down in Article 84(6) of Directive 2014/59.
278
The applicant’s arguments must be assessed in the light of those principles.
279
Concerning the third subparagraph of Article 53(1) of Directive 2013/36, that provision states that where a credit institution has been declared bankrupt or is being compulsorily wound up, confidential information which does not concern third parties involved in attempts to rescue that credit institution may be disclosed in civil or commercial proceedings.
280
In the present case, as the ECB rightly points out, Banco Popular was neither declared bankrupt nor ordered to be compulsorily wound up. On the contrary, it is apparent from the resolution scheme that that scheme was intended, among other things, to sell Banco Popular’s business to Banco Santander. That sale enabled Banco Popular to continue to operate under normal market conditions as a member of the Santander group.
281
Furthermore, it is apparent from Regulation No 806/2014 that it is precisely with a view to avoid winding up under normal insolvency proceedings that that regulation provides for the application of resolution tools to failing entities.
282
Thus, before adopting a resolution action, as part of the assessment of the condition that resolution be in the public interest, provided for in Article 18(1)(c) of Regulation No 806/2014, the SRB must, inter alia, assess whether the resolution of an insolvent entity is preferable to its winding up. In that regard, recital 58 of Regulation No 806/2014 states that where the liquidation of a failing entity under normal insolvency proceedings could jeopardise financial stability, interrupt the provision of essential services and affect the protection of depositors, there is a public interest in applying resolution tools.
283
Furthermore, following the adoption of a resolution action in accordance with Article 15(1)(g), Article 20(16) and Article 76(1)(e) of Regulation No 806/2014, an independent expert’s valuation must compare the actual treatment that shareholders and creditors have received in the context of resolution and the treatment they would have received if the entity had entered into normal insolvency proceedings when the decision on the resolution action was taken. If it is determined that shareholders and creditors have received, in payment of their claims in the context of resolution, less than the amount they would have received under normal insolvency proceedings, they should, in principle, be entitled to compensation.
284
In the light of those considerations, it must be concluded that the nature and objectives of bankruptcy are essentially different from those of resolution and that the application by analogy of the third subparagraph of Article 53(1) of Directive 2013/36 to an entity under resolution is therefore precluded.
285
The application by analogy of that provision would also be contrary to the principles recalled in paragraph 276 above, according to which the exemptions listed in Directive 2013/36 from the general prohibition on disclosing confidential information are exhaustive and must be interpreted strictly.
286
It follows that the exemption provided for in the third paragraph of Article 53(1) of Directive 2013/36 does not apply in the present case.
287
Concerning the exemption from the principle of professional secrecy laid down in Article 84(6) of Directive 2014/59, that provision states that it applies without prejudice to national law concerning the disclosure of information for the purpose of legal proceedings in criminal or civil cases.
288
As the ECB rightly points out, the applicant has not relied on any provision of national law which requires disclosure of the requested documents.
289
Furthermore, Article 84(6) of Directive 2014/59 concerns the exceptional disclosure of confidential information in national proceedings. The applicant does not deny that its applications for access were motivated by its intention to bring an action before the Court.
290
Accordingly, the exemption provided for in Article 84(6) of Directive 2014/59 does not apply in this case.
291
Those findings cannot be called into question by the applicant’s arguments.
292
First, the Court must dismiss the applicant’s argument that the confidentiality rule does not apply where the applicant puts forward precise and consistent evidence plausibly suggesting that the information is relevant for the purposes of civil or commercial proceedings which are under way or to be initiated. The applicant refers to the judgment in Buccioni in support of that argument. It must be observed that unlike the present case, the case which gave rise to the judgment in Buccioni concerned a credit institution which had been compulsorily wound up (the judgment in Buccioni, paragraph 17). As explained in paragraphs 281 to 285 above, a broad application of the third subparagraph of Article 53(1) of Directive 2013/36 would breach the principle that exemptions from the principle of confidentiality must be interpreted strictly, which the Court of Justice itself recalled in paragraph 37 of the judgment in Buccioni.
293
In any event, the approach advocated in the judgment in Buccioni cannot be transposed to the present case. In paragraphs 38 and 40 of that judgment, the Court of Justice stated that the applicant for access to confidential information must put forward precise and consistent evidence plausibly suggesting that the requested information is relevant for the purposes of civil or commercial proceedings which are under way or to be initiated, the subject matter of which must be specifically identified by the applicant. Such an approach would result in an application contra legem of Article 6 of Decision 2004/258, which provides that a person requesting access is not required to justify the request. The absence of any obligation to demonstrate an interest in having access to a document is one of the cornerstones of the rules on access to documents which, according to settled case-law, specifically prohibits persons requesting access to documents being treated differently depending on their individual interests or needs (see, to that effect, judgments of 26 April 2005, Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraphs 50 to 56, and of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 82).
294
Moreover, as the ECB rightly submits, when a document is disclosed, following an application made under the rules governing public access to documents, it becomes public erga omnes. In the judgment in Buccioni, the Court of Justice held that subject to the conditions set out in paragraph 38 thereof, the competent authorities may disclose confidential information for the purposes of civil or commercial proceedings which are under way or to be initiated, ‘without which the information in question cannot be used’. Decision 2004/258, specifically Article 9 thereof, which deals with access following an application, does not however provide for the possibility of granting access to a document to a member of the public at the same time as requiring him or her him not to disclose it to others. Such a possibility would be contrary to the spirit and logic of that decision since, where the exceptions to the right of access laid down in Article 4 of that decision are applicable, access to the document in question is simply refused (see, by analogy, order of 7 March 2013, Henkel and Henkel France v Commission, T‑64/12, not published, EU:T:2013:116, paragraph 47).
295
Second, the applicant’s argument, put forward in the alternative, requesting the Court to grant it access to the documents concerned in the form of a confidentiality undertaking, is not only inconsistent with the considerations relating to the nature of the rules governing public access to documents, referred to in paragraph 293 above, but also disregards the fact that, under Article 104 of the Rules of Procedure, a document to which access has been denied by an institution and which has been the subject of a measure of inquiry cannot be communicated to the other parties. The purpose of that rule is to prevent an action before the Court from becoming devoid of purpose as a result of the communication of the document concerned to the person requesting access (see, to that effect, judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 39). In addition, access in the form of a confidentiality undertaking, as proposed by the applicant, is one of the methods envisaged in the Rules of Procedure to ensure that information in the possession of one of the parties to proceedings before the Court can be produced and used in those proceedings.
296
Third, the applicant cannot claim that the fact that certain exemptions from the principle of confidentiality apply on account of the existence of proceedings before the national courts does not preclude the application of those exemptions in the present dispute before the Court. That, according to the applicant, would lead to the absurd situation whereby national courts would be able to access documents of the EU institutions while the Court would not. For the reasons set out in paragraph 295 above, it is not for the Court, in proceedings concerning access to documents, to order the disclosure to the applicant of a document to which it has been refused access. Moreover, although the rules governing the taking of evidence before the EU Courts differ from those before the national courts, they are nonetheless a comprehensive set of rules. Article 89 et seq. of the Rules of Procedure provide that the Court may, in the course of proceedings, request or order the production of a document by one of the parties to the case. Furthermore, the Court may, on the basis of Article 24 of the Statute of the Court of Justice of the European Union, require the institutions, bodies, offices and agencies not being parties to the case to supply all information which the Court considers necessary for the purposes of examining the dispute. Contrary to the applicant’s assertions, the Court, like the national courts, has all the means necessary at its disposal to be able to obtain access to documents deriving from prudential supervision and to resolve cases brought before it in that area.
297
Fourth, the case-law cited by the applicant in paragraphs 38 and 39 of the application in support of its argument that the specific features of the present case justify disclosure of the requested information, in the light of the various interests at stake, also does not invalidate the findings made in the analysis of the third complaint. The judgments of 9 June 2010, Éditions Jacob v Commission (T‑237/05, EU:T:2010:224, paragraph 90), and of 24 May 2011, NLG v Commission (T‑109/05 and T‑444/05, EU:T:2011:235, paragraph 140), concern the application of the principle of professional secrecy by the Commission in the context of competition law. In both judgments, the Court stated that the duty of professional secrecy is not so extensive as to justify any general, abstract refusal of access to documents containing commercial information on the undertakings involved. Determining whether or not such information is confidential requires that the interests opposing disclosure be weighed against the public interest in the activities of the EU institutions taking place as openly as possible.
298
That case-law cannot, however, be applied to the present case.
299
In the context of the prudential supervision and resolution of credit institutions, the ECB is subject to rules of primary and secondary legislation interpreted by the Court of Justice in the judgment in Baumeister and the judgment in Buccioni. According to those judgments, Article 53(1) of Directive 2013/36 imposes, as a general rule, the obligation to maintain professional secrecy (the judgment in Baumeister, paragraph 33, and the judgment in Buccioni, paragraph 29). Against that background, the Court of Justice has established the conditions under which certain information is to be regarded as confidential and therefore covered by the obligation of professional secrecy. If those conditions are satisfied, the information concerned may, as in the present case, be covered by Article 4(1)(c) of Decision 2004/258, and no balancing exercise will have to be carried out in order for the ECB to be able to refuse access to it.
300
In addition, as the ECB correctly points out, the case-law cited by the applicant concerned cases in which Article 4(2) of Regulation No 1049/2001 applied, which, unlike Article 4(1)(c) of Decision 2004/258, provides for the relevant interests to be weighed against each other.
301
In light of the foregoing, the third complaint must be rejected.
302
It must therefore be held that since the requested documents contained confidential information (see paragraph 271 above) and the exemptions from the principle of confidentiality do not apply, the ECB was lawfully entitled to base the contested decisions on Article 4(1)(c) of Decision 2004/258. Accordingly, the first plea must be dismissed.
303
It is clear from all the foregoing that, first, as regards the information concerning Banco Popular’s liquidity situation and capital ratios, the second contested decision is justified in law by the grounds it contains relating to the exception laid down in Article 4(1)(c) of Decision 2004/258.
304
Second, as regards the documents to which access was refused in the third contested decision, that decision is justified in law by the grounds it contains relating to the exception laid down in Article 4(1)(c) of Decision 2004/258.
305
Third, with respect to the collateral provided, the second contested decision is justified in law by the grounds it contains relating to the exceptions laid down in the second and seventh indents of Article 4(1)(a) of Decision 2004/258 (see paragraph 170 above).
306
It follows from those findings that even if access to the documents and information referred to in paragraphs 303 to 305 above was also refused on the basis of the first indent of Article 4(2) of Decision 2004/258, there is no longer any need to rule on the merits of the third plea alleging infringement of that provision. The third plea must be dismissed as ineffective in any event since, in order for the contested decisions to be well founded in law, it is sufficient if one of the exceptions put forward by the ECB in order to refuse access to the requested documents was justified (see, to that effect, judgment of 25 November 2020, Bronckers v Commission, T‑166/19, EU:T:2020:557, paragraph 78 and the case-law cited).
F. Fourth plea in law: infringement of Article 47 of the Charter
307
In support of its fourth plea, the applicant submits that the ECB infringed Article 47 of the Charter, inasmuch as the refusals to grant access contained in the contested decisions prevented it from gaining access to the documents on which the ECB relied to declare the resolution of Banco Popular. The applicant submits that there is settled case-law according to which effective judicial protection, enshrined in Article 47 of the Charter, requires that the person concerned must be able to ascertain the reasons for the decision taken in relation to him or her. The applicant further submits that in the light of the adversarial principle, which forms an integral part of the rights of the defence, the parties to proceedings have the right to be apprised of all the documents and observations submitted to the court with a view to influencing its decision as well as the right to discuss them. In the light of those considerations, the applicant asserts that the adoption of an administrative measure which deprives individuals of their property on the basis of documents of which they were unable to be apprised constitutes an infringement of their fundamental right to effective judicial protection.
308
The applicant accepts that, in certain proceedings, there is an exception to the general rule that documents should be accessible, where it is advisable that access be refused for overriding reasons relating to State security. It maintains, however, that that is not the case here. It adds that the requested documents are concerned with specific circumstances, namely Banco Popular’s liquidity situation.
309
The applicant also argues that Article 53(1) of Directive 2013/36 and Article 84 of Directive 2014/59 permit the dissemination of confidential information in civil, commercial or criminal proceedings concerning the failure of credit institutions at national level. In that regard, it states that those exemptions from the principle of confidentiality should also be considered to apply to proceedings before the EU Courts under Article 47 of the Charter.
310
Lastly, the applicant submits that the classification of the requested documents as confidential documents is, on any view, a disproportionate measure that does not satisfy the conditions laid down in Article 52 of the Charter.
311
The ECB, supported in that regard by the Commission and Banco Santander, disputes the applicant’s arguments.
312
The first paragraph of Article 47 of the Charter lays down the right to an effective remedy before a court and the second the right to a fair hearing.
313
It is settled case-law that the right to effective judicial protection requires that the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him or her is based, either by reading the decision himself or herself, or by requesting and obtaining disclosure of those reasons, without prejudice to the power of the court having jurisdiction to require the authority concerned to disclose that information, so as to make it possible for him or her to defend his or her rights in the best possible conditions and to decide, with full knowledge of the relevant facts, whether there is any point in his or her applying to the court having jurisdiction, and in order to put the latter fully in a position to review the lawfulness of the decision in question (see judgment of 18 July 2013, Commission and Others v Kadi, C‑584/10 P, C‑593/10 P and C‑595/10 P, EU:C:2013:518, paragraph 100 and the case-law cited; judgment of 3 February 2021, Ramazani Shadary v Council, T‑122/19, not published, EU:T:2021:61, paragraph 50).
314
In the present case, the only decisions adopted by the ECB in relation to the applicant are the three contested decisions. The applicant was able to ascertain the reasons for those decisions and was able to challenge them before the Court by means of this action, brought under Article 263 TFEU, which demonstrates the reality of its right to an effective remedy.
315
Contrary to the applicant’s claims in paragraph 73 of the application, the ECB did not ‘declare the resolution of Banco Popular’, but rather found, in its FOLTF assessment, that that credit institution was failing or was likely to fail within the meaning of Article 18(4) of Regulation No 806/2014. That FOLTF assessment was in the nature of a preparatory act intended to enable the SRB to take a decision on the resolution of Banco Popular (see, to that effect, order of 6 May 2019, ABLV Bank v ECB, T‑281/18, EU:T:2019:296, paragraph 36). Thus, and in any event, the FOLTF assessment did not, as such, produce any binding legal effect capable of affecting the applicant’s interests by bringing about a distinct change in its legal position, since only the adoption and entry into force of a resolution scheme and the application of resolution tools, within the meaning of Article 22(2) of Regulation No 806/2014, are capable of altering that position.
316
If the present plea were to be construed as meaning that the applicant is in fact claiming that its right to an effective remedy was infringed because it was not apprised of the documents serving as the basis for the adoption of the decision pursuant to which Banco Popular’s business was transferred to Banco Santander, namely Decision SRB/EES/2017/08 of the executive session of the SRB of 7 June 2017 concerning a resolution scheme in respect of Banco Popular, it must be recalled that that decision is the subject of the action for annulment brought by the applicant before the Court in Case T‑628/17.
317
The case-law concerning the right to effective judicial protection does not require the ECB, in the context of an application made under Decision 2004/258, to grant access to certain documents which the persons requesting access claim to need for the purpose of preparing an action for annulment of a decision adopted by another institution. That finding follows from the characteristics of the rules on access to documents established by Decision 2004/258.
318
First, Article 1 of Decision 2004/258 provides that the purpose of that decision is to define the conditions governing applications for public access to documents held by the ECB. The purpose of Decision 2004/258 is not, therefore, to settle questions relating to the evidence to be produced by the parties in judicial proceedings (see, by analogy, judgments of 14 May 2019, Commune de Fessenheim and Others v Commission, T‑751/17, EU:T:2019:330, paragraph 123, and of 30 January 2020, CBA Spielapparate- und Restaurantbetrieb v Commission, T‑168/17, not published, EU:T:2020:20, paragraph 74).
319
Second, under Article 2(1) of Decision 2004/258, the beneficiaries of the right of access to the ECB’s documents comprise ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State’. Accordingly, Decision 2004/258 is not intended to lay down rules designed to protect the particular interest which a specific individual may have in gaining access to a document (see, by analogy, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 43; of 30 January 2020, CBA Spielapparate- und Restaurantbetrieb v Commission, T‑168/17, not published, EU:T:2020:20, paragraph 74; and of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 80).
320
Third, it must be borne in mind that if a document is disclosed following an application for access made on the basis of Decision 2004/258, it becomes public erga omnes, in the sense that it may be communicated to other applicants and every person has a right of access to it. Such an erga omnes effect would manifestly exceed the boundaries of the legitimate interests of a party seeking to rely on his or her right to an effective remedy for the purpose of making enquiries in connection with another case before the Court (see, to that effect, order of 1 September 2015, Pari Pharma v EMA, T‑235/15 R, EU:T:2015:587, paragraph 71).
321
The question whether a person requires a document in order to prepare an action for annulment falls to be considered in this case (see, by analogy, judgments of 26 April 2005, Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 55, and of 26 May 2016, International Management Group v Commission, T‑110/15, EU:T:2016:322, paragraph 57). It is therefore only in the action brought against the decision adopting a resolution scheme in respect of Banco Popular, namely in Case T‑628/17, that the applicant could possibly and usefully raise a plea alleging infringement of Article 47 of the Charter. As the ECB and the Commission rightly point out, the Court may, in Case T‑628/17, profitably have recourse to the specific and comprehensive rules on the production and use of documents laid down in the Rules of Procedure (see, in that regard, paragraph 296 above).
322
Having regard to the foregoing, it must be held that the ECB did not infringe Article 47 of the Charter. The fourth plea must accordingly be dismissed.
323
In the light of all the above considerations, the second contested decision must be annulled inasmuch as it refused access to the outcome of the vote in the Governing Council of the ECB recorded in the minutes of the 447th meeting of the Governing Council of the ECB and the action must be dismissed as to the remainder.
V. Costs
324
Under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the Court is to decide how the costs are to be shared. In the present case, since the ECB and the applicant have been unsuccessful in part, the ECB is to bear one third of its own costs and the applicant two thirds of the ECB’s costs in addition to its own costs.
325
Under Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently, the Commission is to bear its own costs.
326
Under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In the present case, Banco Santander, which intervened in support of the form of order sought by the ECB, must be ordered to bear its own costs.
On those grounds,
THE GENERAL COURT (Third Chamber, Extended Composition),
hereby:
1.
Annuls Decision LS/MD/17/406 of the European Central Bank (ECB) of 7 November 2017 inasmuch as it refused access to the outcome of the vote in the Governing Council of the ECB recorded in the minutes of the 447th meeting of the Governing Council of the ECB;
2.
Dismisses the action as to the remainder;
3.
Orders Aeris Invest Sàrl to bear its own costs and to pay two thirds of the costs incurred by the ECB;
4.
Orders the ECB to bear one third of its own costs;
5.
Orders the European Commission and Banco Santander, SA to bear their own costs.
Collins
Kreuschitz
Csehi
De Baere
Steinfatt
Delivered in open court in Luxembourg on 6 October 2021.
[Signatures]
(
*1
)	Language of the case: Spanish.