JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
4 June 2025 (*) (1)
( Access to documents – Decision 2004/258/EC – Documents relating to the announcement of a United States authority (FinCEN) concerning ABLV Bank – Partial refusal of access – Exception relating to the protection of the confidentiality of information that is protected as such under EU law – Exception relating to the protection of documents for internal use – Exception relating to the protection of exchanges of views between the ECB and the relevant authorities – Sufficiently precise nature of an application for access – Duty of the ECB to provide assistance – Article 6(1) and (2) of Decision 2004/258 )
In Case T‑100/23,
ABLV Bank AS, established in Riga (Latvia), represented by O. Behrends, lawyer,
applicant,
v
European Central Bank (ECB), represented by F. von Lindeiner, D. Báez Seara and J. Ruiz Jiménez, acting as Agents,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg and G. Hesse (Rapporteur), Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the measure of organisation of procedure of 5 June 2024 and the respective responses of the applicant and the ECB lodged on 21 June 2024,
having regard to the measure of inquiry of 18 June 2024 and the response of the ECB lodged at the Court Registry on 3 July 2024,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, ABLV Bank AS, seeks the annulment of Decision LS/CL/2022/261 of the European Central Bank (ECB) of 8 December 2022 rejecting its application for access to documents (‘the contested decision’).
Background to the dispute
2        The applicant was an authorised Latvian credit institution until 11 July 2018, on which date its authorisation was withdrawn by the ECB. Until that date, it was a significant institution for the purposes of Article 7(2)(a) 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        On 13 February 2018, the United States Department of the Treasury (United States Treasury Department, United States of America), through the Financial Crimes Enforcement Network (FinCEN), announced a proposed measure to designate the applicant as an institution of primary money laundering concern, pursuant to Section 311 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). Following that announcement, the applicant experienced a wave of deposit withdrawals.
4        On 23 February 2018, the ECB concluded that the applicant was failing or likely to fail within the meaning of Article 18(1) of Regulation No 806/2014 and the Single Resolution Board (SRB) found that a resolution action in respect of the applicant was not necessary in the public interest.
5        On 3 July 2018, following a request made to that effect by the applicant on 16 April 2018, it received the list of documents included in the ECB’s file relating to the procedure which led to the assessment that it was failing or likely to fail.
6        On 26 March 2021, the Korupcijas novēršanas un apkarošanas birojs (Corruption Prevention and Combating Bureau, Latvia; ‘the KNAB’) decided to terminate the criminal proceedings opened following the proposed FinCEN measure (‘the KNAB decision’).
7        On 25 May 2022, the applicant made an application for access to documents to the ECB. It requested access to:
–        any document relating, directly or indirectly, to FinCEN and/or other parts of, or officials from other parts of, the United States Treasury Department or other United States authorities or authorities in the United States and/or the applicant and/or its Luxembourg subsidiary;
–        any document containing communications, directly or indirectly, with FinCEN and/or FinCEN officials and/or other parts of, or officials from other parts of, the United States Treasury Department or other United States authorities or authorities in the United States;
–        any document relating, directly or indirectly, to the KNAB decision, the facts referenced by the KNAB decision and/or the factual findings in the KNAB decision, irrespective of whether such communications occurred before or after the FinCEN announcement;
–        any document relating, directly or indirectly, to acts or omissions of the ECB, the SRB, the Finanšu un kapitāla tirgus komisija (Financial and Capital Markets Commission, Latvia; ‘the FCMC’), FinCEN or any other authority following the FinCEN announcement or prior to the FinCEN announcement;
–        any document relating, directly or indirectly, to Euroclear regarding its role in relation to the applicant and/or its Luxembourg subsidiary, including, without limitation, any communication between the ECB and/or the SRB and Euroclear relating directly or indirectly to the applicant and/or its Luxembourg subsidiary;
–        any other document relating, directly or indirectly, to the applicant and/or its Luxembourg subsidiary.
8        The application for access stated that the term ‘document’ was to be understood broadly and included, without limitation, any electronically stored document and any audio or audiovisual recording.
9        That application was based on ‘any applicable legal basis including[,] without limitation[,] any applicable right of access to the file, [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, first, by Decision 2011/342/EU of the ECB of 9 May 2011 (OJ 2011 L 158, p. 37) and, second, by Decision (EU) 2015/529 of the ECB of 21 January 2015 (OJ 2015 L 84, p. 64)], and the principle of compensation of [damage] by means of restitution in kind.’
10      By email of 11 July 2022, the ECB informed the applicant, in response to its application of 25 May 2022, that it could not grant its application for access to the file. In particular, the ECB stated that the applicant could not rely on the protection of the rights of the defence in relation to any supervisory decision for the purposes of which it would be entitled to request access to its file concerning such a procedure. The ECB added that, although the applicant had referred to the principle of compensation of damage in its application, no explanation had been provided as regards the need for access to the file and that, in any event, it could not be granted access to the file on that basis.
11      On 8 August 2022, the ECB sent the applicant an email informing it that the application for access would be processed in two batches. According to that email, the first batch covers the documents referred to in the first three indents of the application for access set out in paragraph 7 above. It stated that the second batch covers the documents referred to in the three other indents set out in that paragraph. As regards the first batch, the ECB extended the time limit for reply pursuant to Article 7(1) of Decision 2004/258. As regards the second batch, the ECB considered that the application for access was not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258. The ECB then asked the applicant, in accordance with Article 6(2) of Decision 2004/258, to indicate the specific subject matter or topics of interest to it and a limited timeframe. The ECB informed the applicant that the processing of the second batch was put on hold until the scope of the application for access was specified.
12      By email of 13 September 2022, the ECB communicated to the applicant its initial decision, adopted under reference LS/PS/2022/48. By the same email, it informed the applicant that the final three indents of the application for access were not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258 and asked it, in accordance with Article 6(2) of that decision, to indicate the specific subject matter or topics of interest to it and a limited timeframe. In its initial decision, the ECB stated, inter alia, that, after examining the first three indents of the application for access referred to in paragraph 7 above, it had identified nine documents of relevance under the first two indents. By contrast, no ECB document corresponding to the third indent could be identified. According to the ECB, two of the relevant documents were publicly available (Documents No 1 and No 2 below) and full or partial access to the seven other documents had to be refused (Documents No 3 to No 9 below).
13      The nine documents identified by the ECB are:
–        the FinCEN press release concerning the measure taken against the applicant, dated 13 February 2018 (Document No 1);
–        the FinCEN publication with notice of proposed rule-making (‘the NPRM’) (Document No 2);
–        advice provided by the applicant’s external consultants on Section 311 of the USA PATRIOT Act, dated 13 February 2018 (Document No 3);
–        a memo on the NPRM prepared for the ECB by the applicant’s external consultants (Document No 4);
–        email exchanges within the ECB, summarising the issues relating to the applicant following receipt of news from the United States authorities, dated 13 February 2018 (Document No 5);
–        email exchanges within the ECB addressing the measure taken against the applicant following receipt of news from the United States authorities, dated 13 February 2018 (Document No 6);
–        the email exchange between the FCMC and the ECB regarding the measure taken by FinCEN against the applicant, dated 13 February 2018 (Document No 7);
–        the email exchange between the ECB and the FCMC regarding the measure taken by FinCEN against the applicant, dated 13 February 2018 (Document No 8);
–        the email exchange between the ECB and the SRB following the FinCEN announcement, dated 15 February 2018 (Document No 9).
14      On 11 October 2022, the applicant made a confirmatory application to the ECB, in accordance with Article 7(2) of Decision 2004/258. In particular, it requested that the ECB reconsider its position and complete the list of documents relating to the application for access. In addition, the applicant requested, pursuant to Article 41(2)(b) of the Charter of Fundamental Rights of the European Union, access to the file relating to the ongoing procedure in the context of its application for access to documents.
15      On 8 December 2022, the ECB adopted the contested decision.
16      In the contested decision, in the first place, the ECB recalled that the public’s right of access to documents, on the one hand, and the right of access to the file, on the other, were governed by separate legal regimes. It stated that that decision assessed only the applicant’s application under the regime of public access to documents and that it therefore did not cover the request for access to the file. Thus, it considered that the question was not whether a specific applicant should have access to the documents requested, but whether the general public should have access to them.
17      In the second place, the ECB stated, first, that, according to Article 4(1)(c) of Decision 2004/258, access to the documents requested could not be granted where the confidentiality of specific information was protected as such under EU law. According to the ECB, in the field of banking supervision, professional secrecy requirements have been imposed by Article 27 of 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), and by Article 53 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). The third subparagraph of Article 53(1) of Directive 2013/36 provides for an exception to the principle of confidentiality. It considered, however, that the fact that an entity such as the applicant is in liquidation does not mean that information concerning that entity automatically loses its confidential nature.
18      The ECB also stated that, according to case-law, it could not disclose any document drawn up or held in the context of European banking supervision which was not public and the disclosure of which was 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 of banking supervision in the European Union.
19      In that regard, it stated that Documents No 3, No 4, No 5 and No 9 contain analyses and strategies prepared by the applicant’s external consultants following the FinCEN announcement, as well as internal ECB exchanges containing supervisory analyses. In its view, disclosure of those documents would be likely to affect the interests of the consultants who provided their assessments and would deprive the ECB of the benefit of effective external assessments and exchanges of internal views free from any external constraints. Therefore, it considered that disclosure would undermine the proper functioning of the prudential supervision system as a whole.
20      Next, the ECB recalled that, according to the first indent of Article 4(2) of Decision 2004/258, access to documents must be refused where their disclosure would undermine the protection of the commercial interests of a natural or legal person. It found that, as Documents No 3 and No 4 were drawn up by external consultants of the applicant, their disclosure was likely to damage the commercial interests of those consultants. Disclosure would reveal their analytical methodologies, processes and know-how.
21      Lastly, the ECB stated that, according to Article 4(3) of Decision 2004/258, it could not grant access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the ECB or with national authorities. That is also the case even after the ECB has taken a decision, unless there is an overriding public interest in disclosure of the document concerned. In that regard, the ECB stated that Documents No 5 to No 9 were all covered by that provision. Document No 5 contains internal ECB analyses based on the news from the United States authorities. Document No 6 contains information on internal ECB processes that were carried out following receipt of that news. Documents No 7, No 8 and No 9 contain exchanges of views between the ECB and the FCMC as well as between the ECB and the SRB regarding the measure taken by FinCEN against the applicant. According to the ECB, these were exchanges that were necessary in order to establish the facts and to agree on the way forward; in other words, they are documents that do not represent the final views of the authorities concerned. It considered that the result of their disclosure would be that those authorities would no longer be able to benefit from exchanges of opinions free from any external constraints.
Forms of order sought
22      The applicant claims that the Court should:
–        annul the contested decision;
–        order the ECB to pay the costs.
23      The ECB contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
24      In support of the action, the applicant relies on five pleas in law. The first plea alleges that the list of documents identified by the ECB is incomplete. The second plea alleges that, as regards Documents No 1 and No 2, the ECB incorrectly referred to the FinCEN website. The third plea alleges that the ECB’s refusal to grant access to Documents No 3 to No 9 is unlawful. The fourth plea alleges failure to grant the applicant access to the file. The fifth plea alleges unlawful suspension of the procedure for access to documents with respect to the second batch.
The first plea in law, alleging that the list of documents relating to the application for access is incomplete
25      In essence, the applicant submits that, as regards the first batch of documents relating to its application for access, the ECB failed to identify documents covered by that application. First, it argues that the ECB failed to identify the documents relating, directly or indirectly, to the applicant and its Luxembourg subsidiary. According to the applicant, it is inconceivable under the circumstances that the ECB does not hold more documents of that type. In particular, the applicant maintains that it has knowledge of audio recordings and meeting minutes of conversations concerning it. Second, it submits that there must be documents other than those identified resulting from the interactions between the ECB and the United States authorities. Third, the ECB necessarily has documents relating to the KNAB decision and to the events referenced therein. Fourth, it claims that, given that the documents identified by the ECB all date from mid-February 2018, the ECB inevitably omitted relevant documents. In addition, the applicant submits that Decision 2004/258 does not allow the ECB to reinterpret the scope of the application for access. The applicant adds that the ECB denied access to all the documents covered by its application which were not included in the contested decision, without justifying or explaining that non-disclosure, in breach of Decision 2004/258 and of the ECB’s obligation to state reasons. In order to prove this, the applicant produces, inter alia, as Annex C.2 to the reply, the list of 512 documents which, according to the ECB, made up the applicant’s file regarding the assessment that it was failing or likely to fail. Those 512 documents cover a period from 13 to 23 February 2018.
26      The ECB contends that the present plea in law is inadmissible in so far as, first, the applicant does not identify any infringement of a specific essential procedural requirement or any specific rule of law which the ECB allegedly infringed and, second, the applicant does not challenge the operative part of the contested decision. The ECB maintains, in any event, that the present plea is unfounded. It adds, inter alia, that Annex C.2 to the reply should be removed from the file because it was submitted out of time, without any explanation being provided to justify such late submission.
The pleas of inadmissibility raised by the ECB
27      As a preliminary point, it must be recalled that any refusal of access to documents requested from an EU institution may be subject to challenge by way of court proceedings. That is so whatever the reasons relied on to refuse such access. Any other outcome would make impossible review by the EU Courts of the merits of decisions refusing access to documents held by the institutions, since it would suffice, for example, for the institution concerned to state that a document does not exist to avoid judicial review altogether. Therefore, the fact that a document to which access has been requested does not exist or the fact that it is not in the possession of the institution concerned does not make the principle of transparency or the right of access to documents inapplicable. On the contrary, the institution concerned is under a duty to respond to the applicant for access and if necessary to justify its refusal of access on that basis before the courts (see, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 39 to 42). It follows that an institution which, in response to an application for access, fails to identify certain documents corresponding to that application would be in breach of its obligations arising from the right of access to documents.
28      In the first place, the ECB’s plea of inadmissibility claiming that the applicant did not identify the rules of law allegedly infringed by the ECB must be dismissed. By its first plea in law, the applicant submits, in essence, that the ECB infringed the right of access to documents which it derives, inter alia, from Decision 2004/258 and from the ECB’s obligation to state reasons, in that that institution failed to identify exhaustively the documents corresponding to its application for access.
29      In the second place, the ECB’s plea of inadmissibility claiming that, in raising the alleged incompleteness of the list of documents relating to the application for access and annexed to the contested decision, the applicant does not challenge the operative part of the contested decision, must also be dismissed. Contrary to what the ECB contends, the identification of the documents relating to the application for access is an integral part of the response to that application for access and, therefore, is an essential basis for the operative part of the contested decision. Moreover, the ECB cannot exclude the issue of the completeness of its reply to the application for access from judicial review by arguing that the list of documents which it identified is an annex.
30      Therefore, the first plea in law is admissible.
Substance
31      It is necessary to examine, as regards the first batch of documents relating to the application for access, whether, in response to that application, the ECB failed to include, in the contested decision, documents which were nevertheless covered by that application, as the applicant claims.
32      In the first place, the scope of the application for access must be determined.
33      The applicant submits, in particular, that the application for access concerns documents relating, directly or indirectly, to its Luxembourg subsidiary and to itself. It maintains that, by its interpretation of the first two indents of the application for access, the ECB wrongly reformulated that part of the application so as to limit its scope solely to the documents relating to the FinCEN announcement.
34      In that regard, in the contested decision, the ECB considered, as regards the first two indents of the application for access set out in paragraph 7 above, that they were to be understood as seeking access to any document relating, directly or indirectly, to the FinCEN announcement, including documents originating from its officials, other parts of the United States Treasury Department or other United States authorities and to any document containing communications, directly or indirectly, with FinCEN, including with its officials, or from other parts of the United States Treasury Department, other United States authorities or their officials.
35      Thus, in the contested decision, the ECB took the view that only the documents which related to the applicant and its Luxembourg subsidiary and which also related to events connected with the FinCEN announcement were covered by the first two indents of the application for access.
36      In the present case, it must be observed that the sixth indent of the application for access, set out in paragraph 7 above, specifically concerned any other document relating to the applicant and its Luxembourg subsidiary. Accordingly, the ECB’s reading of the application for access, according to which the first two indents of that application did not include documents concerning the applicant and its Luxembourg subsidiary other than those relating to events connected with the FinCEN announcement, does not appear to be incorrect. With respect to that part of the application for access, the applicant cannot therefore criticise the ECB for not having included all the documents relating, directly or indirectly, to the applicant and its Luxembourg subsidiary.
37      Moreover, as regards the context in which the application for access was made, the applicant referred specifically to the ‘events with respect to ABLV and its Luxembourg subsidiary … in February 2018’, to ‘the ECB’s as well as the SRB’s measures with respect to [those two] Banks’, to ‘the FinCEN announcement’ and to the KNAB decision. In the light of that context and of the wording of the first two indents of the application for access, the applicant cannot criticise the ECB for having interpreted that part of the application for access as including only the documents relating to the FinCEN announcement and the communications with the United States authorities concerning the applicant, its Luxembourg subsidiary and those events.
38      In the light of the foregoing, there is no need to call into question the ECB’s interpretation of the scope of the first two indents of the application for access. Furthermore, the scope of the third indent of that application, set out in paragraph 7 above, is not in issue.
39      In the second place, it must be noted that, on the basis of that reading of the application for access, the ECB identified nine documents corresponding to the first two indents of the application for access and no document corresponding to the third indent. According to the description of the nine documents provided in the contested decision, six are dated 13 February 2018 and one is dated 15 February of the same year. The applicant and the ECB disagree as to whether that institution correctly identified, in the contested decision, all the documents relating to the first three indents of the application for access.
40      As regards the applicant’s argument that the ECB failed to identify in the contested decision the documents relating directly or indirectly to its Luxembourg subsidiary and to itself, it must be held, having regard, first, to the documents identified by that institution and, second, to the scope of the application for access set out in paragraphs 34 to 37 above, that the list of documents corresponding to the first two indents of the application for access does not appear to be incorrect. In that regard, it must be recalled, as the ECB contends, that it is for the applicant to rebut the presumption of legality attaching to the list of documents relating to the application for access provided in the contested decision (see, to that effect, judgment of 20 September 2019, Dehousse v Court of Justice of the European Union, T‑433/17, EU:T:2019:632, paragraphs 36 and 37 and the case-law cited). In the present case, the only evidence produced by the applicant in support of its argument is Annex C.2 to the reply, namely the list of documents drawn up by the ECB on 3 July 2018, following its request for access to the file submitted on 16 April 2018. However, it is apparent, in any event, from a comparison between the list of documents drawn up in 2018 and the list drawn up in the contested decision that, in that decision, the ECB duly identified the documents covered by the first two indents of the application for access, namely those documents concerning the applicant and its Luxembourg subsidiary and relating to events connected with the FinCEN announcement, which had already been identified in 2018. Lastly, if, by that argument, the applicant intended to claim that the scope of the first indent of the application for access was the same as that of the sixth indent, as set out in paragraph 7 above, its arguments relating to that part of the application for access will be examined in the context of the fifth plea in law concerning the suspension of the procedure with respect to the second batch of documents relating to the application for access.
41      As regards the applicant’s argument that there must be documents other than those identified resulting from the interactions between the ECB and the United States authorities, it should be borne in mind that, in order to rebut the presumption of legality attaching to the list of documents relating to the application for access provided in the contested decision, the applicant cannot merely consider it ‘inconceivable’ that no other interaction took place between the ECB and those authorities (see, to that effect, judgment of 23 April 2018, Verein Deutsche Sprache v Commission, T‑468/16, not published, EU:T:2018:207, paragraph 37). In the present case, the only evidence produced by the applicant in support of its argument is the list of documents drawn up by the ECB following its request for access to the file submitted in July 2018, produced as Annex C.2 to the reply. However, without there being any need to rule on the admissibility of that annex, on reading it, it must be stated, in any event, that there is nothing to indicate that interactions other than those which gave rise to the documents listed in the contested decision took place. Therefore, in the absence of relevant and consistent evidence, the list of documents corresponding to the first two indents of the application for access cannot be regarded as incomplete.
42      So far as concerns the argument that the ECB has documents relating to the KNAB decision and to the events referenced therein, the applicant merely submits that it is ‘inconceivable’ that the ECB does not hold any documents in that regard, given that those events played an important role in the measures taken by the ECB with respect to the applicant. However, in the absence of relevant and consistent evidence, the list of documents corresponding to the third indent of the application for access also cannot be regarded as incomplete.
43      As regards the argument that, although the application for access does not refer to any period in particular, all the documents identified by the ECB date, according to the contested decision, from 13 or 15 February 2018, it must be held, having regard to the scope of the first two indents of the application for access and in the absence of relevant and consistent evidence, that the fact that the documents identified by the ECB date, according to the contested decision, from the period immediately following the FinCEN announcement does not appear unusual and, accordingly, is not capable of rebutting the presumption of legality attaching to the list of documents provided in that decision.
44      It follows from the foregoing that, contrary to what the applicant claims, it has not been established that the ECB failed to have regard to the scope of the first three indents of the application for access or that documents other than those identified in the contested decision exist and are held by the ECB.
45      Consequently, as regards the first batch of documents relating to the application for access, the contested decision is not vitiated by illegality inasmuch as, by that decision, the ECB allegedly failed to adjudicate on part of the application or inasmuch as it allegedly rejected the application for access to documents not identified in the contested decision, documents the existence of which has not been established.
46      As regards the alleged infringement of the obligation to state reasons, the applicant merely complains that the ECB did not address ‘the completeness issue explicitly’ or provide any explanation for the inconsistency between the scope of the application for access and the list of documents identified. However, in so far as such inconsistency has not been established, the applicant’s arguments alleging that the ECB failed to comply with its obligation to state reasons must be rejected. That is all the more so since the applicant’s arguments, put forward in the context of the present plea, show that it was in a position to understand why the ECB considered that the documents identified in the contested decision corresponded to its application for access.
47      The first plea in law, alleging that the list of documents relating to the application for access is incomplete, must therefore be rejected.
The second plea in law, alleging that the reference to the FinCEN website is insufficient
48      The applicant submits that, with respect to Documents No 1 and No 2, the ECB’s reference to the FinCEN website is not consistent with Article 9(1) of Decision 2004/258, which provides that access may be granted at the ECB’s premises or by making available a copy, including, where applicable, an electronic copy. According to the applicant, Article 9(2) of Decision 2004/258, which provides that the ECB may fulfil its obligation by informing the applicant for access how to obtain the requested document, applies only where the ECB has already released the document. It argues that Documents No 1 and No 2 were never released, however. The applicant also states that the FinCEN documents held by the ECB may differ from those to which the ECB referred, contain notes or consist of a different version of those documents.
49      The ECB contends that the second plea in law is inadmissible on the ground that, first, the applicant’s line of argument relating to Article 9(2) of Decision 2004/258 is not capable of affecting the legality of the contested decision, since that provision is not included in the statement of reasons for that decision; second, the applicant did not, in its confirmatory application, challenge the reference made by the initial decision to the FinCEN website; third, the reference to the FinCEN website does not produce legal effects with respect to the applicant; and, fourth, the applicant has already obtained access to Documents No 1 and No 2 under the regime of public access to documents. It maintains that, in any event, the second plea in law is unfounded.
50      In the contested decision, Documents No 1 and No 2 are described as ‘FinCEN press release concerning the measure taken against [the applicant] (foreign bank of primary money laundering concern), dated 13 February 2018’ and ‘FinCEN publication with notice of proposed rule-making (NPRM)’, respectively.
51      In the contested decision, the ECB responded favourably to the application for access in this respect, indicating to the applicant where it could obtain the information requested, which was easily accessible. In the present case, the ECB provided in that decision, for each of the documents at issue, a corresponding internet link. The internet links in question are, to date, still active. They consist of two links from the website ‘fincen.gov’. They refer to a FinCEN press release entitled ‘FinCEN Names ABLV Bank of Latvia an Institution of Primary Money Laundering Concern and Proposes Section 311 Special Measure’, dated 13 February 2018, and a regulatory proposal entitled ‘Proposal of Special Measure Against ABLV Bank, AS as a Financial Institution of Primary Money Laundering Concern’, dated 16 February 2018, respectively.
52      In that regard, it should indeed be borne in mind that a document disclosed by a third party cannot be regarded as constituting an official document, or as expressing the official position of the institution, in the absence of an unequivocal endorsement by that institution according to which the document obtained emanates from it and expresses its official position (judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 46).
53      Disclosure of a document by a third party does not therefore relieve the ECB of its obligation to grant access to the requested document even where none of the conditions permitting it to avoid that obligation, laid down in Decision 2004/258, is satisfied (see, to that effect, judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 47).
54      However, in the present case, the publication, on its website, of the press release and the proposed measure at issue, by FinCEN – the author of those documents – guarantees that the applicant had access to the authenticated version of the documents concerned (see, to that effect, judgment of 28 September 2022, Agrofert v Parliament, T‑174/21, EU:T:2022:586, paragraphs 58 and 59).
55      Moreover, the applicant has not adduced any relevant and consistent evidence to suggest that the ECB is in possession of other versions of those documents.
56      In those circumstances, it must be held that the applicant obtained access to Documents No 1 and No 2.
57      Consequently, the second plea in law, alleging that the reference to the FinCEN website is insufficient, must be rejected, without it being necessary to rule on the plea of inadmissibility raised by the ECB.
The third plea in law, alleging that the ECB’s refusal to disclose Documents No 3 to No 9 is unlawful
58      In essence, the applicant submits that the ECB’s refusal to disclose Documents No 3 to No 9 is unlawful.
59      The ECB disputes that line of argument.
The refusal of access to Documents No 3, No 4 and No 9 based on Article 4(1)(c) of Decision 2004/258, relating to the protection of the confidentiality of information that is protected as such under EU law
60      In the contested decision, Documents No 3, No 4 and No 9 are, inter alia, described as ‘Advice provided by [the applicant]’s external consultants on Section 311 of the USA PATRIOT Act, dated 13 February 2018’, ‘Memo on the [proposed FinCEN measure] prepared for the ECB by [the applicant]’s external consultants’ and ‘Email exchange between the ECB and the SRB following the FinCEN announcement, dated 15 February 2018’, respectively.
61      In essence, the applicant submits that Documents No 3 and No 4 are insufficiently described, with the result that they cannot be identified. It maintains that, as regards Document No 9, the lack of explanation as to the specific content of the email exchange precludes any assessment of the merits of the refusal of access. Furthermore, the applicant argues that Documents No 3, No 4 and No 9 are all assessed in the same paragraph of the contested decision, without the ECB specifying whether all those documents were covered by the arguments set out in that paragraph. The applicant infers from this that the ECB did not provide an adequate statement of reasons for the refusal to grant access based on the confidentiality of information that is protected as such under EU law.
62      As regards, in particular, the application of Article 4(1)(c) of Decision 2004/258, the applicant submits, in essence, that Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36, relied on by the ECB, refer to the confidentiality obligations of the staff of supervisory authorities. According to the applicant, the duty of officials and other members of staff to keep information confidential does not mean that that information cannot be disclosed by that institution. It maintains that the ECB did not establish that disclosure of the documents at issue was 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. In addition, the applicant complains that the ECB consulted neither it nor the SRB, in breach of Article 4(4) of Decision 2004/258.
–       Infringement of the ECB’s obligation to state reasons
63      According to 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 which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its 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, paragraph 161).
64      In the present case, it is apparent from the contested decision that Documents No 3 and No 4 are memos drawn up by external consultants of the applicant, which were provided in the context of the supervision of that bank. Those memos contain information, analyses and actions envisaged following FinCEN’s findings relating to the applicant. Document No 9 consists of exchanges of views between the ECB and the SRB regarding the measure taken by FinCEN against the applicant. Those exchanges concerned the facts and were intended to agree on the way forward. They contain supervisory analyses.
65      It follows from the foregoing considerations that the contested decision enabled the applicant to ascertain the nature, author and addressee of Documents No 3, No 4 and No 9, and to have a precise idea of their content as well as the period and context in which they were created, namely following the FinCEN announcement. Therefore, contrary to what the applicant claims, the ECB, even if it was unable to be more specific in the light of the circumstances, provided a statement of reasons which meets the requirements of Article 296 TFEU.
66      In addition, a reading of the contested decision shows that one of the characteristics of Documents No 3, No 4 and No 9 is that they contain supervisory analyses concerning the applicant, whether it be analyses and strategies prepared by the applicant’s external consultants or exchanges between the ECB and the SRB. The ECB explained that disclosure of those analyses, which were provided in the context of exchanges presumed to be confidential, could discourage such exchanges and, therefore, adversely affect the proper functioning of the prudential supervision system. Thus, contrary to what the applicant claims, it is clear from the contested decision that that reasoning was valid in respect of each of Documents No 3, No 4 and No 9.
67      Consequently, the ECB did not infringe its obligation to state reasons as regards the refusal of access to Documents No 3, No 4 and No 9 based on Article 4(1)(c) of Decision 2004/258.
–       Infringement of Article 4(1)(c) of Decision 2004/258
68      In the contested decision, the ECB based the refusal to grant access to Documents No 3, No 4 and No 9, inter alia, on the exception provided for 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. In order to determine that the protection of such information would be undermined, the ECB cited Article 27 of Regulation No 1024/2013, Article 53(1) of Directive 2013/36 and the concept of ‘confidential information’ resulting from the judgment of 19 June 2018, Baumeister (C‑15/16, ‘the judgment in Baumeister’, EU:C:2018:464)
69      According to Article 4(1)(c) of Decision 2004/258, ‘the ECB shall refuse access to a document where disclosure would undermine the protection of … the confidentiality of information that is protected as such under Union law.’
70      It is apparent from the case-law that the protection of the confidentiality of information that is protected as such, as enshrined in that provision, is an ‘absolute’ exception to the right of access and that that exception refers, for that purpose, to EU law (see, to that effect, judgments of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraphs 188 and 197, and of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraph 133), of which Article 27 of Regulation No 1024/2013 and Article 53(1) of Directive 2013/36 form part.
71      In that regard, first, Article 27(1) of Regulation No 1024/2013 imposes an obligation of professional secrecy on members of ECB staff with regard to information which they obtain in the context of prudential supervision. That obligation includes the duty to respect the confidentiality requirements imposed by all the relevant acts of EU law.
72      Second, Article 53(1) of Directive 2013/36 imposes professional secrecy on the Member State authorities that are competent in the area of prudential supervision. Under that provision, professional secrecy in principle prohibits those authorities from disclosing confidential information which they receive other than in summary or aggregate form, such that individual credit institutions cannot be identified. That principle is accompanied by two derogations permitting the disclosure of confidential information, in the first place, in cases covered by criminal law, and, in the second place, in cases relating to civil or commercial proceedings subject to the twofold condition, in the event of such civil or commercial proceedings, that (i) the credit institution concerned by the confidential information has been declared bankrupt or is being compulsorily wound up, and (ii) the confidential information does not concern third parties involved in attempts to rescue that institution.
73      As regards the concept of ‘confidential information’ resulting from the judgment in Baumeister, the General Court has previously held that the interpretation adopted in that judgment was applicable with respect to defining confidential information for the purposes of Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law (judgments of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196, and of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraphs 120 to 134).
74      It is true that, as the applicant states, according to paragraph 46 of the judgment in Baumeister, all information relating to the supervised entity and communicated by it to the competent authority, and all statements of that authority in its supervision file, including its correspondence with other bodies, do not constitute, unconditionally, confidential information that is covered, consequently, by the obligation to maintain professional secrecy.
75      However, in paragraph 46 of the judgment in Baumeister, the Court of Justice ruled that information held by the competent authorities (i) which was not public and (ii) the disclosure of which was likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the system for monitoring the activities of investment firms, was to be so classified.
76      Therefore, where, as in the present case, the ECB intends to refuse access to documents on account of the confidentiality of the information at issue, it must check that the two criteria set out in the judgment in Baumeister, and recalled in paragraph 75 above, are fulfilled in respect of each item of information concerned, that process requiring a specific examination of each of those items of information (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196).
77      That said, in applying the second condition of the judgment in Baumeister, the ECB enjoys a broad discretion, since the assessment of whether the disclosure of certain documents would undermine the protection of the proper functioning of the prudential supervision and resolution system is a complex and delicate one which calls for the exercise of particular care (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraphs 159, 252 and 253).
78      The consequence of recognising that the ECB enjoys such discretion is that the EU Courts’ review of legality in that regard must be limited to verifying whether the procedural rules and the obligation to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers (see judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 161 and the case-law cited).
79      In the present case, the applicant calls into question the relevance of Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36, since those provisions are addressed to the staff of the authorities concerned.
80      However, as is apparent from their description, Documents No 3, No 4 and No 9 are all the product of exchanges of information between, on the one hand, the ECB and, on the other, the supervised entity, namely the applicant, or the European resolution authority, namely the SRB, in the context of the specific supervisory procedure relating to the applicant following the FinCEN announcement. On that basis, those documents fall within the scope of Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 which concern professional secrecy and exchange of information in the exercise of supervisory duties. Article 4(1)(c) of Decision 2004/258, which preserves the confidentiality of information that is protected as such under EU law, 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. That provision 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, seeking to ensure that the ECB complies with its obligations of professional secrecy (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraphs 188 and 189). The ECB could therefore, contrary to what the applicant claims, rely on its obligations of professional secrecy under Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 in the context of the refusal of access based on Article 4(1)(c) of Decision 2004/258.
81      It must now be examined whether the ECB was correct in considering Documents No 3, No 4 and No 9 to be confidential. In other words, it is necessary to ascertain (i) whether those documents are not public, and (ii) whether their disclosure is likely to affect adversely the interests of the natural or legal person who provided them or of third parties, or the proper functioning of the prudential supervision system.
82      In the first place, as regards whether Documents No 3, No 4 and No 9 are public, a reading of Documents No 3 and No 4 supports the finding that, as their description in the contested decision indicates, they consist of advice provided by the applicant’s external consultants regarding Section 311 of the USA PATRIOT Act and of a memo provided by the applicant’s external consultants concerning the proposed FinCEN measure. As is apparent from the contested decision, those documents contain analyses and strategies prepared by the applicant’s external consultants following the FinCEN announcement. There is no suggestion that the information contained in those documents is public. As for Document No 9, a reading of it supports the finding that it indeed consists of email exchanges between the ECB and the SRB which contain supervisory information that is not in the public domain.
83      In the second place, as regards the likelihood of adversely affecting the interests at stake, it must be noted that, in the contested decision, the ECB stated that Documents No 3 and No 4 were provided by the applicant’s external consultants on the assumption that they would be kept confidential. According to the ECB, disclosure of those documents would be likely to affect the interests of those consultants. Document No 9 also contains supervisory analyses. It was found that disclosure of Documents No 3, No 4 and No 9 would thus undermine the ECB’s interest in receiving frank, objective and comprehensive supervisory assessments. The ECB considers that disclosure would prevent it from receiving effective external assessments free from any potential external constraints linked to the risk of being misinterpreted or giving the wrong signal. According to the ECB, disclosure would therefore undermine the proper functioning of the prudential supervision system as a whole. The ECB stated that it was not possible for it to provide more specific reasons justifying the refusal of access in respect of each individual document, since a higher level of detail than that would have jeopardised the confidential nature of those documents.
84      The applicant has not succeeded in calling into question the ECB’s assessment that the disclosure of Documents No 3, No 4 and No 9 would have been likely to affect adversely the mutual trust between the ECB, on the one hand, and the supervised institutions and the SRB, on the other, trust which is necessary for the proper functioning of the prudential supervision system. The applicant submits, in essence, that the risk to the proper functioning of the supervisory system is unfounded in so far as the applicant has already been the subject of negative public statements on the part of the ECB and the SRB. It maintains, moreover, that the ECB has not adduced any tangible evidence that the loss of trust relied on would actually occur.
85      However, although the ECB and the SRB published certain information concerning the situation of the applicant and its Luxembourg subsidiary following the FinCEN announcement in the interests of informing the public, it must be stated that the information contained in Documents No 3, No 4 and No 9 was not the subject of such publication.
86      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, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 267), with the result that the ECB was legitimately entitled to rely on the risk that disclosure might result in a loss of trust between the ECB and those entities which, in the context of the prudential supervision mechanism, exchange information and analyses with it. The applicant’s arguments in that regard cannot therefore succeed.
87      In the light of the foregoing considerations, it has not been established that the ECB made a manifest error of assessment in considering that disclosure of Documents No 3, No 4 and No 9 was likely to affect adversely the proper functioning of the prudential supervision system.
88      Consequently, since Documents No 3, No 4 and No 9 are covered by the exception provided for 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, the applicant’s line of argument alleging that the ECB’s refusal to disclose those three documents is unlawful must be rejected.
89      In the light of that conclusion, it is not necessary to examine the merits of the refusal to grant access to those documents pursuant to another exception, as the one provided for in Article 4(1)(c) of Decision 2004/258 is sufficient to justify such a refusal.
–       Infringement of Article 4(4) of Decision 2004/258
90      The applicant complains that the ECB consulted neither it nor the SRB, in breach of Article 4(4) of Decision 2004/258, whereas such consultation would have made it possible to dispel the fear that disclosure would result in a loss of trust.
91      According to Article 4(4) of Decision 2004/258, ‘as regards third-party documents, the ECB shall consult the third party concerned with a view to assessing whether an exception in this Article is applicable, unless it is clear that the document shall or shall not be disclosed.’
92      However, in view of the nature and content of Documents No 3, No 4 and No 9, it is clear that the ECB was not to disclose them. Therefore, under Article 4(4) of Decision 2004/258, the ECB cannot, in any event, be criticised for not having consulted the applicant or the SRB.
93      Consequently, that argument put forward by the applicant, alleging infringement of Article 4(4) of Decision 2004/258, must be rejected.
The refusal of access to Documents No 5 to No 8 based on Article 4(3) of Decision 2004/258, relating to documents drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and national central banks and national authorities
94      In the contested decision, Documents No 5 to No 8 are described as ‘Internal ECB email exchanges summarising the issues relating to [the applicant] following receipt of the news from the [United States] authorities, dated 13 February 2018’, ‘Internal ECB email exchanges addressing the measure taken against [the applicant] following receipt of the news from the [United States] authorities, dated 13 February 2018’, ‘Email exchange between the FCMC and the ECB regarding FinCEN’s measure against [the applicant], dated 13 February 2018’ and ‘Email exchange between the ECB and the FCMC regarding FinCEN’s measure against [the applicant], dated 13 February 2018’, respectively.
95      In essence, the applicant submits that the terms used by the ECB to describe Documents No 5 to No 8 do not enable it to ascertain whether those documents consist of a number of emails or who the authors and recipients of the emails were. Furthermore, it maintains that the description of Document No 6 and the description of Document No 8 do not make it possible to assess what distinguishes them from Document No 5 and Document No 7, respectively. In addition, it argues that the contested decision does not clearly indicate the exception, among those referred to in Article 4(3) of Decision 2004/258, on which the ECB based its refusal to disclose Documents No 5 to No 8. Nor does the contested decision specify which document is covered by which argument.
96      As regards, in particular, the application of Article 4(3) of Decision 2004/258, the applicant submits that, although the ECB maintains that the documents at issue do not represent its final view, the preliminary nature of opinions does not preclude their disclosure. According to the applicant, the reasons relied on by the ECB for the purpose of refusing disclosure are merely hypothetical. Moreover, the ECB neither examined nor considered partial disclosure of those documents, as provided for in Article 4(5) of Decision 2004/258. In addition, the applicant claims that the overriding public interest in disclosure is evidenced by the extent of the media attention that has been devoted to its case and is confirmed by the ECB’s public statements concerning it. The applicant adds that the ECB infringed the obligation laid down in Article 4(4) of Decision 2004/258 by failing to consult the applicant and the FCMC.
–       Infringement of the ECB’s obligation to state reasons
97      In the present case, it is apparent from the examination of the contested decision that the ECB stated the following. Document No 5 contains internal ECB analyses based on the news provided by the United States authorities. Document No 6 contains information on internal ECB processes which were implemented following receipt of the news provided by the United States authorities. Those two documents contain preliminary reflections. Documents No 7 and No 8 contain exchanges of views between the ECB and the FCMC. Those exchanges were necessary in order to establish the facts and to agree on the way forward.
98      It follows from the foregoing that, contrary to what the applicant claims, the contested decision provides a clear description of the content of each of Documents No 5 and No 6 and therefore of their differences or similarities. As regards Documents No 7 and No 8, the fact that they are similar and therefore described in a similar manner in the contested decision cannot vitiate that decision by a failure to state reasons, with the result that the applicant cannot rely on that fact.
99      It must be stated, on reading the contested decision, that that decision enabled the applicant to ascertain the nature, author and addressee of Documents No 5 to No 8, namely either the ECB or the FCMC, and to have a precise idea of their content and of the period and context in which they were created. While it is true that the contested decision does not specify the number of emails contained in Documents No 5 to No 8, the applicant does not explain why knowing that number was essential for the purpose of understanding the reasoning of the contested decision. Therefore, its arguments cannot succeed.
100    In addition, the contested decision states the following: ‘Pursuant to Article 4(3) of Decision [2004/258], the ECB must refuse access to documents drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and national central banks, national competent authorities or national designated authorities[; t]his is the case even after the decision has been taken unless there is an overriding public interest in disclosure[; D]ocuments [No 5 to No 9] are all covered by the protection provided by that provision.’
101    It follows that, both with respect to Documents No 5 and No 6 and to Documents No 7 and No 8, the refusal of access was based on the first subparagraph of Article 4(3) of Decision 2004/258, as set out in paragraph 103 below. A reading of the contested decision supports the finding that the ECB stated that Documents No 5 and No 6 consisted of internal exchanges and analyses. The ECB explained, inter alia, that disclosure of Documents No 5 and No 6 could cause its staff to practise self-censorship. Therefore, it is sufficiently apparent from those explanations that the ECB considered that those documents were documents which it had drafted for internal use as part of deliberations and preliminary consultations within that institution, within the meaning of the first subparagraph of Article 4(3) of Decision 2004/258. As regards Documents No 7 and No 8, the part of the contested decision devoted to those documents states unambiguously that they both constitute email exchanges between the ECB and the FCMC. Having regard to the ECB’s statement set out in paragraph 100 above, they are necessarily, in the ECB’s view, documents which it had drafted and received and which were intended for exchanges of views between it and the national authority concerned, within the meaning of the first subparagraph of Article 4(3) of Decision 2004/258. Furthermore, given that Document No 5 was similar to Document No 6, the arguments concerning the former necessarily applied to the latter. The same is true of Document No 8, which is similar to Document No 7.
102    Consequently, contrary to what the applicant claims, the ECB did not infringe its obligation to state reasons as regards the refusal of access to Documents No 5 to No 8 based on Article 4(3) of Decision 2004/258, relating to documents drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and national central banks and national authorities.
–       Infringement of the first subparagraph of Article 4(3) of Decision 2004/258
103    In the first place, it should be noted that, according to the first subparagraph of Article 4(3) of Decision 2004/258, access to a document drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and national central banks, national competent authorities or national designated authorities, is to be refused even after the decision has been taken, unless there is an overriding public interest in disclosure.
104    The Court has previously held that refusal to grant access to a document under the first subparagraph of Article 4(3) of Decision 2004/258 requires only that it be established, first, that that document is for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and the national authorities concerned and, second, that there is no overriding public interest in disclosure (judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 30).
105    According to the case-law, the first subparagraph of Article 4(3) of Decision 2004/258 is intended to protect, first, a space for reflection within the ECB, in which the institution’s decision-making bodies may have a confidential exchange of views as part of their deliberations and preliminary consultations and, second, a space for a confidential exchange of views between the ECB and the national authorities concerned (judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 31).
106    In that regard, it must be recalled that the ECB enjoys a broad discretion for the purpose of determining whether the public interest concerning the protection of documents for its internal use or for exchanges of views between it and the national authorities concerned might be undermined by the disclosure of the information contained in the documents at issue. Thus, 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, to that effect, judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 54 and the case-law cited).
107    As regards, first, Documents No 5 and No 6, the ECB stated, in the contested decision, that those documents, namely emails exchanged within the ECB, had been created for the purpose of forming opinions and that they contained preliminary reflections. The ECB stated that it was vital that its staff be able to convey pertinent and candid views in the manner deemed to be most effective for serving the public interest. The ECB explained that if documents reflecting internal views exchanged within that institution were to be disclosed, their authors would, in the future, take the risk of disclosure into account, which could cause them to practise self-censorship and to cease putting forward candid views or comprehensively describing possible scenarios. The ECB concluded that disclosure of those exchanges would restrict the space for reflection within that institution.
108    In that context, the ECB was legitimately entitled to consider that Documents No 5 and No 6 were documents for internal use within the meaning of the first subparagraph of Article 4(3) of Decision 2004/258, in so far as they consisted of emails exchanged within the ECB in order for the staff of that institution to form an initial opinion of the applicant’s situation following the FinCEN announcement.
109    The arguments put forward by the applicant cannot call that assessment into question.
110    As regards the argument that the ECB did not sufficiently demonstrate the ‘internal use’ for which Documents No 5 and No 6 were intended, it must be held that the initial reflections exchanged, via emails, by ECB staff concerning the applicant’s situation following the FinCEN announcement are documents for internal use within the meaning of the first subparagraph of Article 4(3) of Decision 2004/258. The ECB’s explanations referred to in paragraph 107 above are, contrary to what the applicant claims, sufficient in that regard. Despite what the applicant suggests, the fact – if it were established – that those initial reflections within the ECB might subsequently have had external consequences is not relevant for the purpose of assessing whether those documents were for internal use and cannot therefore alter that finding.
111    As regards the argument that, by stating that the purpose of Documents No 5 and No 6 was to form opinions, the ECB implied that those documents were factual in nature, it must be observed, as the ECB contends, that that institution made it sufficiently clear that they contained more than facts, inter alia information on internal ECB processes implemented following the FinCEN announcement and the views of its staff regarding the situation.
112    As regards the argument that the consequences of disclosure highlighted by the ECB, such as the risk of self-censorship, are merely hypothetical and unsubstantiated, it is apparent from the elements set out in paragraph 107 above that the contested decision is not devoid of specific information, indicating inter alia the risk which disclosure of Documents No 5 and No 6 would pose in the light of their nature, function and purpose within the ECB. Moreover, there is nothing to prevent the ECB from relying on considerations which take into account the hypothetical effects that disclosure of the documents at issue could have on the ECB’s space for reflection. As the ECB correctly points out, the first subparagraph of Article 4(3) of Decision 2004/258 draws no distinction between documents in respect of which a decision has not yet been taken and documents relating to procedures which have led to a final decision. Contrary to what the applicant suggests, it is sufficient, as has been recalled in paragraph 104 above, that the document requested is for internal use as part of deliberations and preliminary consultations within the ECB and that there is no overriding public interest in disclosure.
113    Moreover, the applicant cannot properly rely on the case-law arising from the judgment of 25 January 2023, De Capitani v Council (T‑163/21, EU:T:2023:15), since that case involved Article 4(3) 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), the wording of which is significantly different from that of the first subparagraph of Article 4(3) of Decision 2004/258 (see, to that effect, judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraphs 26 to 29).
114    As regards the argument that the ECB neither examined nor considered partial disclosure of Documents No 5 and No 6, as provided for in Article 4(5) of Decision 2004/258, it must be observed that, in the contested decision, the ECB upheld the assessment of the initial decision according to which the amount of sensitive and confidential information was such that it was not possible to provide documents which, after the redaction of the protected information, would have any meaningful content, and confirmed that access to the documents requested could not be granted in full or in part. That argument must therefore be rejected.
115    As regards, second, Documents No 7 and No 8, the ECB stated, in the contested decision, that the exchanges between it and the FCMC, which were necessary in order to establish the facts and to agree on the way forward, did not represent their final views. The ECB considered that disclosure of Documents No 7 and No 8 would compromise the purpose of the mechanism for consultation and exchange between the authorities concerned, which is intended to enable an open and frank exchange of views between those authorities. According to the ECB, the result of disclosure would be that the authorities concerned would no longer be able to benefit from an exchange of opinions and internal advice given freely, without any external constraints linked to the risk of being misinterpreted.
116    In that context, the ECB was legitimately entitled to consider that Documents No 7 and No 8 were documents which it had drafted and received and which were intended for exchanges of views between it and the national authority concerned within the meaning of the first subparagraph of Article 4(3) of Decision 2004/258, since they consisted of emails exchanged between the ECB and the FCMC which were necessary in order to establish the facts and to agree on the way forward.
117    The arguments put forward by the applicant cannot call that assessment into question.
118    As regards the argument that the ECB incorrectly states that Documents No 7 and No 8 do not contain final views and that it is irrelevant that the email exchanges at issue are preliminary, it must be observed that documents intended to establish facts and to agree on a course of action cannot be regarded as final. Moreover, the preliminary nature of the exchanges contained in Documents No 7 and No 8 is irrelevant, in the sense that, as has been recalled in paragraph 104 above, it is sufficient, in order for the exception laid down in the first subparagraph of Article 4(3) of Decision 2004/258 to apply, that those documents are for exchanges of views between the ECB and the national competent authority and that there is no overriding public interest in disclosure. In the present case, the fact that the emails exchanged between the ECB and the FCMC did not represent their final views shows that they were intended for exchanges of views. That argument of the applicant must therefore be rejected.
119    As regards the argument that the fear of no longer being able to benefit from an exchange of uncensored opinions and internal advice given freely amounts to a refusal to be held accountable, it must be recalled that, as is apparent from the case-law set out in paragraph 105 above, the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258 is intended, inter alia, to protect a space for a confidential exchange of views between the ECB and the national authorities concerned. The ECB cannot therefore be criticised for taking into consideration the potential effects which disclosure of the documents at issue might have on that space for a confidential exchange of views. Moreover, for the reasons set out in paragraph 113 above, the applicant cannot properly rely on the judgment of 25 January 2023, De Capitani v Council (T‑163/21, EU:T:2023:15).
120    As regards the argument that the risk relied on by the ECB is hypothetical and not supported by any tangible evidence, it is apparent from the elements set out in paragraph 115 above that the contested decision is not devoid of specific information, indicating inter alia the risks which disclosure of Documents No 7 and No 8 would pose having regard to their nature, function and purpose, in the context of the space for a confidential exchange of views between the ECB and the national competent authorities.
121    In the light of the foregoing, the ECB was legitimately entitled to consider that Documents No 5 to No 8 were documents either for internal use as part of deliberations and preliminary consultations within the ECB or for exchanges of views between the ECB and the national authority concerned, within the meaning of the first subparagraph of Article 4(3) of Decision 2004/258.
122    In the second place, it must be stated that, in the situations referred to in Article 4(3) of Decision 2004/258, it is for the ECB to provide explanations on the question of whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned (judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 64; see also, by analogy, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 49).
123    The system for the exception laid down in the first subparagraph of Article 4(3) of Decision 2004/258 is based on a balancing of the opposing interests in a given situation, that is to say, on the one hand, the interests which would be favoured by the disclosure of the documents in question and, on the other, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 65; see also, by analogy, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42).
124    Although it is for the institution concerned to weigh up the different interests, it is for the applicant to refer to specific circumstances that establish such an overriding public interest. A statement setting out purely general considerations is not sufficient for the purpose of establishing that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 66; see also, by analogy, judgment of 15 September 2016, Herbert Smith Freehills v Commission, T‑755/14, not published, EU:T:2016:482, paragraph 69).
125    In the present case, as is apparent from the contested decision, the ECB considered that there was no overriding public interest in the disclosure of Documents No 5 to No 8.
126    In essence, the applicant submits that there is an overriding public interest in disclosure because its case received extensive media attention, was the subject of numerous public statements on the part of the ECB and led to legislative changes. According to the applicant, there is a risk that the institutions in question will selectively determine the information which they disclose to the public and avoid public scrutiny. It maintains that, in order for EU institutions and bodies to be subject to critical scrutiny, it must be possible to put into context the information which they disclose.
127    Those arguments put forward by the applicant do not call into question the ECB’s conclusion that there is no overriding public interest in the disclosure of Documents No 5 to No 8.
128    As is apparent from the contested decision, it is vital that ECB staff are able to convey pertinent and candid views in a manner that is effective for serving the public interest. This is particularly true in a situation where a bank is confronted with an event such as the FinCEN announcement which concerned the applicant. ECB staff must be free to describe possible scenarios comprehensively. It is equally vital, in that context, that the ECB and national authorities such as the FCMC have a space for a confidential exchange of views. Without that space, it would be difficult, if not impossible, for them freely to agree on the course of action in a situation such as that following the FinCEN announcement, which would ultimately affect the proper functioning of the prudential supervision system.
129    As the applicant has pointed out, its situation following the FinCEN announcement received a degree of media attention in the interests of informing the public. However, the public’s interest in having access to the emails at issue in order to obtain more context is, in the light of the case-law cited in paragraph 124 above, an overly general consideration which is not sufficient to establish that that interest should prevail over the public interest underlying the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258, namely the protection, first, of a space for reflection within the ECB, in which the institution’s decision-making bodies may have a confidential exchange of views as part of their deliberations and preliminary consultations and, second, of a space for a confidential exchange of views between the ECB and the national authorities concerned.
130    In view of the foregoing, the ECB did not commit a manifest error of assessment in considering that disclosure of the information contained in Documents No 5 to No 8 could undermine the public interest as regards the protection of documents for its internal use as part of deliberations and preliminary consultations or for exchanges of views between it and the national authority concerned and in basing its refusal to grant access to those documents on the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258.
131    In the light of that conclusion, it is not necessary to examine, where appropriate, the merits of the refusal to grant access to any of Documents No 5 to No 8 pursuant to another exception, as the exception provided for in the first subparagraph of Article 4(3) of Decision 2004/258 is sufficient to justify such a refusal.
–       Infringement of Article 4(4) of Decision 2004/258
132    The applicant submits, with regard to Documents No 7 and No 8, that the ECB neither consulted the ‘third parties’ concerned, as provided for in Article 4(4) of Decision 2004/258, nor provided specific reasons indicating that it was clear that disclosure was not to be granted.
133    As has been recalled in paragraph 91 above, according to Article 4(4) of Decision 2004/258, as regards third party documents, the ECB is to consult the third party concerned with a view to assessing whether an exception in that article is applicable, unless it is clear that the document is or is not to be disclosed.
134    However, in view of the nature and content of Documents No 7 and No 8, it is clear that the ECB was not to disclose them. Therefore, under Article 4(4) of Decision 2004/258, the ECB cannot be criticised for not having consulted the FCMC.
135    Furthermore, while the FCMC is the originator of certain emails included in Documents No 7 and No 8 and is therefore a ‘third party’ within the meaning of that provision, that is not the case with respect to the applicant. It cannot therefore criticise the ECB for not having consulted it.
136    In addition, as is apparent from paragraphs 97 to 102 above, the ECB did not infringe its obligation to state reasons as regards the refusal of access to Documents No 7 and No 8 based on Article 4(3) of Decision 2004/258, relating to documents drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB, or for exchanges of views between the ECB and national central banks and national authorities. Although, as the applicant points out, the contested decision does not explicitly refer to any ‘specific reasons indicating that [the justification for] the non-disclosure is exceptionally clear’, it is nevertheless impossible to interpret the grounds of that decision otherwise.
137    Accordingly, that argument put forward by the applicant, alleging infringement of Article 4(4) of Decision 2004/258, must be rejected.
138    Consequently, the third plea in law, alleging that the ECB’s refusal to disclose Documents No 3 to No 9 is unlawful, must be rejected in its entirety.
The fourth plea in law, alleging failure to grant access to the file
139    The applicant complains that the ECB failed to grant it access to the file relating to the procedure which led to the contested decision, even though it had specifically requested such access. According to the applicant, granting it access to that file would allow it to examine the instructions given within the ECB concerning its application for access, and would also enable the parties better to discuss the disclosure of those documents and allow the ECB to gather the applicant’s observations regarding the information which might affect it.
140    The ECB contends that the present plea in law is inadmissible on the ground that, first, it is not directed against the contested decision; second, the alleged illegality of the email of 11 July 2022, which concerns the right of access to the file, is not capable of affecting the legality of the contested decision; and third, the applicant is time-barred from challenging that email. It maintains that the fourth plea is, in any event, unfounded.
141    In the first place, it is common ground between the parties that the decision rejecting the application for access to the file made by the applicant on 25 May 2022 was given concrete expression in the email of 11 July 2022 sent by the ECB to the applicant, and produced by the applicant as Annex A.8.
142    It must be stated, as the ECB contends, that the present action has been brought solely against the contested decision, namely the ECB’s decision, dated 8 December 2022, relating to public access to documents. Moreover, in the application, the applicant refers to that decision as ‘the contested decision’.
143    In the present case, even if the separate decision contained in the email of 11 July 2022 and relating to access to the administrative file were unlawful, this could not affect the legality of the contested decision or lead to its annulment.
144    Consequently, the applicant’s line of argument concerning the decision rejecting the application for access to the file contained in the email of 11 July 2022 must be declared ineffective, without there being any need to rule on its admissibility.
145    In the second place, the applicant cannot properly rely on the judgment of 22 March 2023, Satabank v ECB (T‑72/20, EU:T:2023:149). In that judgment, the ECB had not analysed whether an application for access satisfied the conditions of Article 6(1) of Decision 2004/258. It is not apparent from the documents in the present file that the ECB failed to examine whether the applicant’s application for access satisfied the conditions required under that provision. Contrary to what the applicant claims, that judgment did not create an obligation on the part of the ECB to respond, in a single decision, to applications for public access to documents and for access to the file made by the same person (judgment of 6 November 2024, MeSoFa v ECB, T‑790/22, not published, EU:T:2024:783, paragraph 35).
146    In the third place, in paragraph 86 of the reply, the applicant submits that its request for access to the file also covered the file of the procedure for access to documents. According to the applicant, the ECB failed to address that request in the contested decision.
147    However, contrary to what the applicant claims, the question whether or not the ECB addressed that request does not fall within the scope of the procedure for public access to documents. The right to have access to the file is laid down in Article 41(2)(b) of the Charter of Fundamental Rights. That right applies to access to the file of the person concerned by a case being handled by the administration, and not to all documents held by a given institution. By contrast, the procedure established by Decision 2004/258 is intended to ensure that the ECB’s decision-making process is as transparent as possible, and cannot be treated in the same way as a procedure by which the administration handles the case of a specific person. Thus, a request for access to the file concerning the file of the procedure for access to documents cannot be based on Decision 2004/258 and, although the ECB must examine that request, it cannot be required to examine the right to have access to the file laid down in Article 41(2)(b) of the Charter of Fundamental Rights in the same decision as that containing its reply to an application for public access to documents.
148    In those circumstances, even if the ECB had failed to address that request in the contested decision, this could not affect the legality of that decision or lead to its annulment.
149    Consequently, the applicant’s line of argument concerning the ECB’s alleged failure must be declared ineffective, without there being any need to rule on its admissibility.
150    In the light of the foregoing, the fourth plea, alleging failure to grant access to the file, is ineffective.
The fifth plea in law, alleging unlawful suspension of the procedure with respect to the second batch of documents relating to the application for access
151    The applicant claims that the ECB was not entitled to discontinue the processing of the second batch of documents corresponding to the final three indents of the application for access. First of all, it submits that the contested decision does not contain a sufficient statement of reasons in that regard. Next, it highlights the fact that, although the ECB considers that the application for access is not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258, that provision does not allow the processing of the application for access to be discontinued, that is to say, it does not permit a suspension of the time limits set down by Decision 2004/258. In addition, the applicant states that it did not respond to the ECB’s email of 8 August 2022 asking it to clarify its application for access, because it was not required to do so. The applicant regarded this as a delaying tactic. Lastly, the applicant submits that there is nothing in Article 6(2) and (3) of Decision 2004/258 to indicate that a supposed lack of precision or an allegedly large number of documents could have any relevance for the time limits or the implied negative decision rule laid down in Article 8(3) of Decision 2004/258.
152    The ECB contends, in essence, that the fifth plea in law is inadmissible, ineffective and, in any event, unfounded. It maintains that it asked the applicant, pursuant to Article 6(1) and (2) of Decision 2004/258, to clarify the subject matter of the final three indents of its application for access by means of two emails sent on 8 August and 13 September 2022, respectively. It argues that the applicant did not respond in that regard in its confirmatory application. The ECB contends that the present plea in law is inadmissible in so far as it is not directed against the contested decision, but against the email of 8 August 2022. In its submission, that plea is unrelated to the subject matter of the proceedings and the ECB is therefore unable to prepare its defence. Moreover, the applicant is time-barred from challenging that email. In any event, the ECB maintains that it acted in accordance with Article 6(1) and (2) of Decision 2004/258 by characterising the final three indents of the application for access as insufficiently precise and by requesting further clarifications.
The pleas of inadmissibility raised by the ECB
153    In the first place, as regards the plea of inadmissibility alleging that the present plea in law, which concerns the final three indents of the application for access, is unrelated to the subject matter of the proceedings, the applicant correctly submits that Article 6(1) of Decision 2004/258, the wording of which is reproduced in paragraph 171 below, does not allow the processing of an application for access to be discontinued or, in other words, does not permit a ‘suspension’ of the time limits set down in Articles 7 and 8 of Decision 2004/258. Those time limits, laid down in the public interest, cannot be varied by the parties (see, by analogy, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 24).
154    In the present case, however, it must be noted that, in the contested decision, the ECB stated the following:
‘… In [the initial decision], the Director-General addressed the first batch of your public access request (the first three items of your initial application). Addressing the remaining items from your initial application was put on hold subject to further clarification from you. This means that your confirmatory application can only be assessed in so far as it concerns the non-disclosure of documents identified in the [initial decision]. … Finally, we would like to remind you that [in order] to process a second batch of documents falling within the scope of your initial application, your input is still necessary.’
155    In that regard, footnote 2 to the contested decision refers to the ECB emails sent to the applicant on 8 August and 13 September 2022, and states: ‘Since your confirmatory application was following up on the same emails, the ECB concludes that you received the correspondence and chose not to take the opportunity to provide clarification.’
156    It is apparent from the file that, in the email of 8 August 2022, the ECB stated:
‘As for the second batch covering the three remaining items of your request … we note that their scope is extremely broad and general and, as such[,] the request is not sufficiently precise within the meaning of Article 6(1) of Decision [2004/258]. Therefore[,] in line with Article 6(2) of th[at] [d]ecision, we kindly invite you to indicate specific subject matter(s) or topic(s) of interest in relation to ABLV Bank and a limited timeframe.’
157    That finding was reiterated in the same terms by the ECB in its email of 13 September 2022.
158    It follows that, even though, in the contested decision, the ECB stated that the processing of the final three indents of the application for access had been ‘put on hold’, that statement did not prevent it from examining the scope of that part of the application in order to conclude, in essence, that that application was not sufficiently precise to enable the ECB to understand which documents it concerned. In so doing, the ECB considered, in fact, that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258, which the applicant is entitled to challenge in the context of the present action against the contested decision.
159    In addition, contrary to what the ECB suggests, it is apparent from the application and from the defence, respectively, that the applicant’s arguments concerning the second batch of documents relating to the final three indents of the application for access are intelligible and that the ECB has been able to respond to them. The Court has also had no difficulty in understanding the applicant’s arguments on reading the application.
160    Accordingly, the plea of inadmissibility raised by the ECB, alleging that the present plea in law is unrelated to the subject matter of the proceedings, cannot be upheld.
161    In the second place, as regards the plea of inadmissibility alleging that the action is out of time, it must be held that, since the applicant challenged the contested decision within the prescribed period, it is not, contrary to the ECB’s contention, time-barred from challenging the part of that decision relating to the final three indents of its application for access. As regards the email of 8 August 2022, it does not constitute the contested decision or even a decision on the application for access to the documents covered by the final three indents of that application. Accordingly, it is not appropriate to uphold that plea of inadmissibility.
Substance
162    As a preliminary point, it must be observed that, since the ECB considered, in the contested decision, that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258, any illegality vitiating the processing of that part of the application for access has a bearing on the legality of the contested decision. The applicant’s arguments relating to the possible illegality vitiating the processing of that part of the application for access are therefore effective, contrary to what is claimed, in essence, by the ECB, and will be examined below.
–       Infringement of the ECB’s obligation to state reasons
163    The applicant submits that the ECB did not provide a sufficient statement of reasons for the contested decision, in that it did not refer to any legal basis in that decision and did not explain how the second batch was broader and more general than the first batch.
164    In that regard, it should be recalled that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressee of the measure may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 80; see, also, judgment of 27 February 2018, CEE Bankwatch Network v Commission, T‑307/16, EU:T:2018:97, paragraph 80 and the case-law cited).
165    In the present case, as regards the context in which the contested decision was adopted, the question whether the statement of reasons is sufficient must be examined in the light of all the exchanges that took place between the ECB and the applicant (see, to that effect, judgment of 6 September 2023, Foodwatch v Commission, T‑643/21, not published, EU:T:2023:519, paragraph 21).
166    As has been stated in paragraph 11 above, by the same email sent by the ECB on 8 August 2022, the applicant was informed, first, that the time limit for processing its application for access had been extended pursuant to Article 7(1) of Decision 2004/258, as regards the documents referred to in the first three indents of the application for access, and, second, that, since that application for access was not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258 as regards the documents referred to in the next three indents of the application for access, that application had to be clarified pursuant to Article 6(2) of Decision 2004/258.
167    The ECB repeated that request to clarify the application for access on 13 September 2022, at the time when the initial decision was adopted.
168    The contested decision was therefore adopted in a context which was known to the applicant and from which it was apparent that the wording of the final three indents of its application for access was so general that it did not satisfy the conditions of Article 6(1) of Decision 2004/258, which was expressly mentioned in the exchanges that took place between the applicant and the ECB.
169    In that context, the statement of reasons for the contested decision is sufficient for the applicant to have been in a position to ascertain the reasons why the ECB had not responded to that part of the application for access and to challenge them effectively before the EU Courts. In addition, contrary to what the applicant claims, since the grounds of the contested decision were not required to state expressly whether the wording of the final three indents was broader and more general as compared with that of the first three indents, it cannot criticise the ECB for not explaining that point. The contested decision therefore meets the requirements for statement of reasons laid down in Article 296 TFEU.
–       Infringement of Article 6(1) and (2) of Decision 2004/258
170    Given that the ECB considered that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258, it must be examined, first, whether that part of the application for access was sufficiently precise within the meaning of Article 6(1) of that decision and, second, whether the ECB complied with its duty to provide assistance referred to in Article 6(2) of that decision.
171    In the first place, in accordance with Article 6(1) of Decision 2004/258, the application for access had to be made in a manner that was ‘sufficiently precise … to enable the [institution] to identify the document [requested]’. It must be pointed out that the amount of work entailed by the exercise of the right of access and the interest of the applicant for access are, in principle, irrelevant (see, to that effect, judgment of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 108).
172    It is therefore necessary to determine, in the light of the wording of the application for access, whether the ECB was in a position to identify the documents requested, whatever their number or the interest pursued by the applicant.
173    In that regard, the final three indents of the application for access concerned:
–        any document relating, directly or indirectly, to acts or omissions of the ECB, the SRB, the FCMC, FinCEN or any other authority following the FinCEN announcement or prior to the FinCEN announcement;
–        any document relating, directly or indirectly, to Euroclear regarding its role in relation to the applicant and/or its Luxembourg subsidiary, including, without limitation, any communication between the ECB and/or the SRB and Euroclear relating directly or indirectly to the applicant and/or its Luxembourg subsidiary;
–        any other document relating, directly or indirectly, to the applicant and/or its Luxembourg subsidiary.
174    In view of the general wording of the final three indents of the application for access, the ECB was legitimately entitled to request clarification in relation to those categories of documents. As the ECB correctly contends, in the light of the wording of the final three indents of the application for access and, in particular, in the absence of a limited timeframe, it was not possible to ascertain whether that part of the application concerned documents relating to the FinCEN announcement or to other supervisory matters.
175    In the second place, it must be determined whether the ECB complied with its duty to provide assistance (judgment of 10 September 2008, Williams v Commission, T‑42/05, not published, EU:T:2008:325, paragraphs 74 to 78).
176    According to Article 6(2) of Decision 2004/258, ‘if an application is not sufficiently precise, the ECB shall ask the applicant to clarify the application and shall assist the applicant in doing so.’ According to the case-law, the verbs ‘ask’ and ‘assist’ indicate that whenever the institution to which the application is addressed encounters a lack of clarity in an application for access, for whatever reason, it must contact the applicant in order to define the documents sought as well as possible. The provision is thus one which, in the field of public access to documents, formally translates the principle of sound administration, which is one of the guarantees afforded by the legal order of the European Union in administrative procedures. The duty to provide assistance is therefore fundamental to ensuring the effectiveness of the right of access defined by Decision 2004/258 (see judgment of 26 October 2011, Dufour v ECB, T‑436/09, EU:T:2011:634, paragraph 30 and the case-law cited).
177    In the present case, it must be noted that, by an email of 8 August 2022, the ECB informed the applicant that the final three indents of its application for access were not sufficiently precise and invited it to indicate one or more specific subjects of interest to it and a limited timeframe. By an email of 13 September 2022, the ECB repeated that request in the same terms.
178    The confirmatory application states as follows: ‘… The scope of [the applicant’s] request for access comprises, inter alia, all documents related directly or indirectly to [the applicant] or to its Luxembourg subsidiary … I specifically request that you complete the list of documents …’ It did not indicate anything else in relation to the final three indents of the application for access. Nor did it expressly dispute that the application for access was not sufficiently precise within the meaning of Article 6(1) of Decision 2004/258.
179    In the light of the information set out in paragraphs 177 and 178 above, the ECB carried out its duty to provide assistance, since it asked the applicant to clarify the application for access by indicating to the ECB the timeframe and the subject matter of interest to the applicant. However, the applicant did not provide the ECB with any meaningful information to enable it to identify specific documents corresponding to that application. The applicant merely repeated, without any further clarification, the wording of the sixth indent of the application for access and remained silent as to the fourth and fifth indents of that application. Moreover, in paragraphs 182 to 185 of the application, the applicant explained that it had not wished to respond to the ECB’s request for clarification, since it regarded this as a delaying tactic which would have resulted in excessive legal costs. However, since the wording of the final three indents of the application for access was indeed not sufficiently precise in that it did not refer to any particular subject matter or to any specific timeframe, there was no reason to consider that this was a delaying tactic on the part of the ECB.
180    Although, as the applicant submits, the amount of work entailed by the exercise of the right of access to documents and the interest of the applicant for access are, in principle, irrelevant for the purpose of varying the scope of that right, the fact remains that, since its application for access was insufficiently precise, the applicant could not refrain from clarifying its application without running the risk of the ECB finding that that application did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258 (see, to that effect, order of 7 September 2009, LPN v Commission, T‑186/08, not published, EU:T:2009:309, paragraph 62).
181    In the present case, the lack of clarification on the applicant’s part is not the result of its inability to identify the documents which allegedly contain the information it is seeking, but rather is the result of its lack of willingness to clarify the application for access.
182    It follows, first, that the ECB was correct in considering that the final three indents of the application for access did not satisfy the conditions laid down in Article 6(1) of Decision 2004/258 and, accordingly, could not be regarded as an ‘application for access’ within the meaning of that provision and, second, that the ECB duly carried out its duty to provide assistance pursuant to Article 6(2) of Decision 2004/258.
183    Consequently, the fifth plea in law, alleging unlawful suspension of the procedure with respect to the second batch of documents relating to the application for access, must be rejected.
The applicant’s requests for measures of organisation of procedure and measures of inquiry
184    The applicant requests that the Court order various measures of organisation of procedure and measures of inquiry, namely that it order the ECB to provide (i) a more detailed explanation of the ‘allegedly secret’ reasons for withholding the documents requested, (ii) a statement as to whether the list of documents annexed to the contested decision was based on the first three indents of the application for access or on their reformulation in footnotes 2 and 86 to the defence, (iii) a detailed description of the steps taken, of the approach followed in identifying the documents requested and of the other measures taken in compiling the list of documents relating to the application for access, (iv) the reasons why no audio recording was submitted, (v) a precise factual position regarding the numerous inconsistencies and contradictions allegedly contained in the reply, and (vi) Documents No 3 to No 9.
185    In that regard, it must be recalled that it is for the Court to appraise the usefulness of measures of organisation of procedure and measures of inquiry (see, to that effect, judgment of 9 March 2015, Deutsche Börse v Commission, T‑175/12, not published, EU:T:2015:148, paragraph 417 and the case-law cited).
186    In the present case, as regards, first, the request that the ECB be ordered to provide a more detailed explanation of the reasons for the refusal to grant access to the documents relating to the first three indents of the application for access, it must be observed that such a measure does not appear necessary in the light of the considerations set out in paragraphs 63 to 67 and 97 to 102 above, from which it is apparent that sufficient reasons were given for the refusal to grant access.
187    As regards, second, the request seeking, in essence, the production of a statement as to whether the list of documents provided in the contested decision was based on the first three indents of the application for access, it must be held that the documents in the file, including the ECB’s responses to the questions put by the Court, are sufficient to enable the Court to give a ruling.
188    As regards, third, the request that the ECB indicate the steps which it took, the approach which it followed in identifying the documents requested and the other measures taken by it in compiling the list of documents relating to the application for access, since the applicant has failed to specify the reasons why that information is necessary for the resolution of the dispute, it does not appear necessary to produce such information.
189    As regards, fourth, the request that the ECB provide the reasons why it did not submit any audio recordings even though it has not disputed the existence of such recordings, it is apparent from paragraphs 32 to 44 above that it has not been established that documents other than those identified in the contested decision exist and fall within the scope of the first three indents of the application for access. The ECB’s silence with regard to the alleged existence of audio recordings relating to the applicant and its subsidiary cannot constitute sufficient evidence to support the conclusion that the provision of such reasons by the ECB is necessary for the resolution of the dispute.
190    As regards, fifth, the request that the ECB take a position on the numerous inconsistencies and contradictions identified by the applicant in the reply, it must be stated that the information contained in the documents in the file is sufficient to enable the Court to give a ruling.
191    As regards, sixth, the request that Documents No 3 to No 9 be produced so that the applicant may consult them, it is sufficient to recall that, under Article 104 of the Rules of Procedure, documents to which access has been denied by an institution and which have been the subject of a measure of inquiry under Article 91(c) of those rules are not to be communicated to the other parties. The purpose of that rule is to prevent the action before the Court becoming devoid of purpose as a result of the communication of the document concerned to the applicant for access (see, to that effect, judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 39).
192    Consequently, it is not necessary to order the measures of organisation of procedure and measures of inquiry requested by the applicant.
193    It follows from all of the foregoing that, without there being any need to rule on the admissibility of Annexes C.1 and C.2, the action must be dismissed.
Costs
194    Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the ECB, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders ABLV Bank AS to bear its own costs and to pay those incurred by the European Central Bank (ECB).
Kowalik-Bańczyk
Buttigieg
Hesse
Delivered in open court in Luxembourg on 4 June 2025.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.
1      The present judgment is published in extract form.