JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
15 October 2025 (*)
( Access to documents – Regulation (EC) No 1049/2001 – Documents concerning the adoption by the Single Resolution Board (SRB) of a resolution scheme for Sberbank banka d.d. – Decisions of the SRB Appeal Panel concerning confirmatory decisions of the SRB refusing access – Partial refusal of access – Exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State – Fourth indent of Article 4(1)(a) of Regulation No 1049/2001 – Exception relating to the protection of the commercial interests of a third party – First indent of Article 4(2) of Regulation No 1049/2001 – Exception relating to the protection of privacy and the integrity of the individual – Article 4(1)(b) of Regulation No 1049/2001 )
In Case T‑291/23,
MeSoFa Vermögensverwaltungs AG,
formerly Sber Vermögensverwaltungs AG, established in Vienna (Austria), represented by M. Fernandez, lawyer,
applicant,
v
Single Resolution Board (SRB), represented by H. Ehlers, L. Forestier, A. Lapresta Bienz and J. Rius Riu, acting as Agents,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed, at the time of the deliberations, of K. Kowalik-Bańczyk, President, E. Buttigieg and G. Hesse (Rapporteur), Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure, in particular:
–        the order of 9 January 2024 reserving the decision on the plea of inadmissibility for the final judgment;
–        the statements of modification of the application lodged at the Registry of the General Court on 4 March and 6 August 2024;
–        the measure of inquiry of 27 January 2025 and the response of the SRB lodged at the Court Registry on 12 February 2025,
further to the hearing on 13 March 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, MeSoFa Vermögensverwaltungs AG, formerly Sber Vermögensverwaltungs AG, seeks annulment of the decision of the Single Resolution Board (SRB) of 19 August 2022 with respect to the applicant’s request for access to documents relating to the adoption by the SRB of a resolution scheme for Sberbank banka d.d. (‘the first confirmatory decision’), the decision of the SRB Appeal Panel (‘the Appeal Panel’) of 8 March 2023 in Case 6/2022 (‘the first decision of the Appeal Panel’), the SRB’s negative reply within the meaning of Article 8(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 implied decision’), the SRB’s decision of 21 December 2023 concerning the same request for access (‘the second confirmatory decision’) and the decision of the Appeal Panel of 22 May 2024 in Case 2/2024 (‘the second decision of the Appeal Panel’).
Background to the dispute and events subsequent to the bringing of the action
2        Prior to the adoption of a resolution scheme for Sberbank d.d. and Sberbank banka d.d. (‘Sberbank Slovenia’), the applicant held 100% of the shares in the former and 99.99% of the shares in the latter. Those three credit institutions were significant entities, within the meaning 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        By a request submitted to the SRB on 14 April 2022, and clarified on 20 April 2022, the applicant requested access to:
–        Decision SRB/EES/2022/18 of 27 February 2022 by which the SRB ordered the suspension of payment and delivery obligations in respect of Sberbank Slovenia (‘Decision SRB/EES/2022/18’);
–        the decision of the SRB of 28 February 2022 on the failure or likely failure of Sberbank Europe AG and its subsidiaries in Slovenia and Croatia;
–        Decision SRB/EES/2022/20 of 1 March 2022 by which the SRB decided to place Sberbank Slovenia under a resolution procedure (‘Decision SRB/EES/2022/20’);
–        and all the relevant documents on which those decisions were based, including the valuation of Sberbank Slovenia, the marketing process and the assessment by the European Central Bank (ECB) that that institution was failing or likely to fail, and the other documents indicating that the conditions for the resolution action under Regulation No 806/2014 were satisfied.
4        By its initial decision of 9 June 2022, the SRB identified the following documents as falling within the scope of the request for access:
–        Decision SRB/EES/2022/18 and Decision SRB/EES/2022/20, including valuations 1 and 2;
–        the ECB’s ‘failing or likely to fail’ assessment dated 27 February 2022;
–        the SRB’s response to that assessment dated 27 February 2022;
–        the European Commission decision of 1 March 2022 endorsing the resolution scheme for Sberbank Slovenia;
–        the minutes of the SRB meetings held on 26, 27 and 28 February and 1 March 2022;
–        the minutes of the meetings of the European Resolution College held on 26 and 27 February and 1 March 2022 and the email exchanges with information on the assessment and resolution strategy;
–        the order addressed to the Slovenian resolution authority responsible for implementing Decision SRB/EES/2022/20;
–        the notary minutes of the opening of tenders for the purchase of the shares in Sberbank Slovenia of 28 February 2022 (‘the notary minutes’).
5        By that decision, the SRB provided the applicant with a non-confidential version of Decision SRB/EES/2022/18 and of Decision SRB/EES/2022/20, including valuation reports 1 and 2. The SRB also granted access to the order addressed to the Slovenian resolution authority. As to the remainder, the SRB refused the access sought or did not provide the documents in question.
6        Pursuant to Article 7(2) of Regulation No 1049/2001, on 30 June 2022, the applicant submitted a confirmatory application to the SRB.
7        On 19 August 2022, by the first confirmatory decision, the SRB identified another document falling within the scope of the request for access, namely the updated offer from Nova Ljubljanska Banka d.d. (‘the updated offer’).
8        In that decision, as regards Decision SRB/EES/2022/18, the SRB noted that it had prepared the non-confidential version of Decision SRB/EES/2022/18 following, inter alia, consultations with the parties concerned in order to ensure that that version was consistent with the SRB’s confidentiality obligations. As regards the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia, the SRB stated that the non-confidential version of that assessment had been published on the ECB’s website. As regards the SRB’s response to that assessment, access was refused. As regards the Commission’s decision endorsing the resolution scheme for Sberbank Slovenia, the SRB stated that the Commission had published the document in the Official Journal. As regards the SRB meetings held on 26, 27 and 28 February and 1 March 2022, as well as the meetings of the college held on 26 and 27 February and 1 March 2022 and the email exchanges with information on the assessment and resolution strategy, the SRB refused access. As regards the notary minutes and the updated offer, the SRB disclosed those documents in part.
9        On 30 September 2022, pursuant to Article 85(3) of Regulation No 806/2004, the applicant brought an appeal against the first confirmatory decision before the Appeal Panel. According to that appeal, the SRB’s assessment concerning access to Decision SRB/EES/2022/18, the notary minutes and the updated offer was incorrect.
10      On 8 March 2023, the Appeal Panel adopted its first decision, under case number 6/2022. In that decision, the Appeal Panel confirmed the first confirmatory decision as regards the personal data redacted on the basis of the exception relating to the protection of privacy and the integrity of the individual provided for in Article 4(1)(b) of Regulation No 1049/2001. By contrast, as regards the other redacted information in Decision SRB/EES/2022/18, the notary minutes and the updated offer, the Appeal Panel considered that the statement of reasons in the first confirmatory decision was insufficient in that the SRB had not properly and specifically justified those redactions. In particular, the Appeal Panel stated that, while it was prepared to accept that some of the redactions made to the requested documents might be justified by the need to protect the financial policy of the European Union, in accordance with the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, the redactions made to Decision SRB/EES/2022/18 on the basis of that provision were too extensive. The Appeal Panel also stated that, while it understood the need to redact some information contained in the notary minutes and the updated offer in order to protect certain commercial interests, it was inviting the SRB to reconsider whether and to what extent additional elements of those documents could be disclosed. Accordingly, pursuant to Article 85(8) of Regulation No 806/2014, the Appeal Panel remitted the case to the SRB.
11      On 21 December 2023, by the second confirmatory decision, the SRB disclosed additional parts of Decision SRB/EES/2022/18, in particular parts concerning the description of Sberbank Slovenia, the difficulties faced by that institution, its attempts to address those difficulties and the fact that it was failing or likely to fail. The information which remained redacted was, according to the SRB, covered by the exceptions referred to in the fourth indent of Article 4(1)(a) and the first indent of Article 4(2) of Regulation No 1049/2001. Moreover, the SRB granted wider access to the notary minutes and the updated offer, but took the view that some parts of those documents should remain confidential, in accordance with Article 4(1)(b) and the first indent of Article 4(2) of Regulation No 1049/2001.
12      On 1 February 2024, pursuant to Article 85(3) of Regulation No 806/2004, the applicant brought an appeal against the second confirmatory decision before the Appeal Panel.
13      On 22 May 2024, the Appeal Panel adopted its second decision, under case number 2/2024, by which it confirmed the second confirmatory decision. In particular, the Appeal Panel first declared the applicant’s arguments admissible. Next, it considered that the grounds for refusal of access put forward by the SRB in the second confirmatory decision on the basis of the exception provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 were incorrect. However, the Appeal Panel noted that the SRB had put forward additional grounds based on the exception relating to the protection of commercial interests provided for in the first indent of Article 4(2) of Regulation No 1049/2001. In the light of those additional grounds, the Appeal Panel did not uphold the applicant’s arguments. Last, as regards, in particular, the personal information redacted on the basis of the exception relating to the protection of privacy and the integrity of the individual provided for in Article 4(1)(b) of Regulation No 1049/2001, the Appeal Panel considered, as the SRB had, that that exception was applicable. It therefore did not uphold the applicant’s arguments.
Forms of order sought
14      The applicant claims, in essence, that the Court should:
–        annul the first confirmatory decision, the first decision of the Appeal Panel, the implied decision, the second confirmatory decision and the second decision of the Appeal Panel;
–        order the SRB to pay the costs.
15      The SRB contends, in essence, that the Court should:
–        declare the action inadmissible in its entirety;
–        in the alternative, dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
The first confirmatory decision and the first decision of the Appeal Panel
16      It must be borne in mind that the conditions governing the admissibility of an action must be judged, subject to the separate question of the loss of an interest in bringing proceedings, at the time when the application is lodged. In the interest of the proper administration of justice, that consideration relating to the time when the admissibility of the action is assessed does not prevent the Court from finding that there is no longer any need to adjudicate on the action in the event that an applicant who initially had a legal interest in bringing proceedings has lost all personal interest in having the contested decision annulled on account of an event occurring after that application was lodged. For an applicant to be entitled to pursue an action seeking the annulment of a decision, he or she must retain a personal interest in the annulment of that decision until the final decision, because, otherwise, if the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the General Court on the merits cannot bring him or her any benefit (see order of 24 March 2011, Internationaler Hilfsfonds v Commission, T‑36/10, EU:T:2011:124, paragraph 46 and the case-law cited).
17      In the present case, it should be recalled that the applicant requested full access to the documents referred to in paragraph 3 above. By the first confirmatory decision, the applicant was first of all granted access to some information. The Appeal Panel, to which the applicant appealed against that decision, next remitted the case to the SRB without, however, upholding all the applicant’s claims. Subsequently, by the second confirmatory decision, the SRB disclosed additional information but did not grant full access to the requested documents. Last, the Appeal Panel, to which the applicant appealed against that second decision, examined each of the applicant’s arguments, including those relating to the redactions in respect of which it had not ruled in the applicant’s favour in the first decision, as it was called upon to do, and confirmed the second confirmatory decision.
18      Accordingly, it is true that the applicant has still not been granted access to all the information to which it had requested access.
19      However, following the full re-examination which was carried out, the second confirmatory decision and the second decision of the Appeal Panel set out the final position of the SRB and the Appeal Panel. They have the same subject matter as the first confirmatory decision and the first decision of the Appeal Panel, respectively, and have, in practice, replaced the latter in their entirety, in terms of their effects on the applicant.
20      In those circumstances, the possible annulment of the first confirmatory decision and the first decision of the Appeal Panel cannot bring the applicant any additional benefit as against that which it would derive from the annulment of the second confirmatory decision and the second decision of the Appeal Panel (order of 21 September 2011, Internationaler Hilfsfonds v Commission, T‑141/05 RENV, EU:T:2011:503, paragraphs 26 to 31).
21      It follows that there is no longer any need to adjudicate on the claims directed against the first confirmatory decision and the first decision of the Appeal Panel.
The implied decision
22      The applicant submits that, in the light of the SRB’s silence following the first decision of the Appeal Panel, adopted on 8 March 2023 and remitting the case to the SRB, there was an implied decision, for the purposes of Article 8(3) of Regulation No 1049/2001, when the action was brought on 24 May 2023. The applicant stated at the hearing that the adoption of the second confirmatory decision, on 21 December 2023, did not alter the fact that such a decision existed, in so far as those decisions were contradictory.
23      The SRB disputes that line of argument.
24      In the present case, it is common ground that the SRB adopted the second confirmatory decision after the present action was brought. By that decision, it granted wider partial access to Decision SRB/EES/2022/18, to the notary minutes and to the updated offer and, as to the remainder, expressly rejected the applicant’s confirmatory application.
25      Therefore, even assuming that, because of the SRB’s silence following the first decision of the Appeal Panel, an implied decision rejecting the confirmatory application for access could be deemed to exist, it would then have to be considered that, by adopting an express decision rejecting that application, the SRB by implication but necessarily withdrew that implied decision (see, to that effect, judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 88 and 89, and of 26 March 2020, ViaSat v Commission, T‑734/17, not published, EU:T:2020:123, paragraphs 16 and 17).
26      That withdrawal of the contested act, in view of its retroactive nature (see, to that effect, judgment of 17 April 1997, de Compte v Parliament, C‑90/95 P, EU:C:1997:198, paragraph 35), has resulted in the action becoming devoid of purpose as regards the implied decision.
27      In that situation, consideration of the claims directed against any implied decision cannot be justified either by the objective of preventing the alleged unlawfulness from recurring or by that of facilitating potential actions for damages, since it is possible to attain both those objectives through consideration of an action brought against the express decision (see, to that effect, judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 46 and the case-law cited), that is to say, the second confirmatory decision.
28      In the present case, the adoption of an express decision, namely the second confirmatory decision, in so far as it rejected the applicant’s application, had the effect of withdrawing any implied decision and therefore eliminated, in that regard, both the purpose of the claims for annulment directed against that decision and the applicant’s interest in bringing proceedings against it.
29      Consequently, there is no longer any need to adjudicate on the claims for annulment directed against any implied decision which may have arisen.
The second confirmatory decision and the second decision of the Appeal Panel
30      As a preliminary point, in so far as the SRB disputes the admissibility of the two statements of modification lodged by the applicant in order to seek the annulment of the second confirmatory decision and the second decision of the Appeal Panel, it should be borne in mind, first, that the conformity of a request to modify the application under Article 86(1) of the Rules of Procedure of the General Court forms part of the admissibility of an action (judgment of 18 October 2023, Belaz-upravljajusaja kompanija holdinga Belaz Holding v Council, T‑533/21, not published, EU:T:2023:657, paragraph 85) and, second, that the Courts of the European Union are entitled to assess, according to the circumstances of each individual case, whether the proper administration of justice justifies the dismissal of the action on the merits, without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).
31      In the present case, the Court considers that it is appropriate, in the interests of procedural economy, to begin by examining the pleas of illegality and the pleas in law raised by the applicant, without first ruling on the admissibility of the claims seeking annulment of the second confirmatory decision and the second decision of the Appeal Panel.
32      In support of its action, the applicant raises three pleas of illegality. First, the applicant submits that Article 20 of the Rules of Procedure of the Appeal Panel is contrary to Article 85(4) of Regulation No 806/2014. Second, it claims that Article 21(4) of the Rules of Procedure of the Appeal Panel goes beyond what is provided for in Article 85(8) of Regulation No 806/2014. In its view, that provision is also unlawful in the light of Article 8(1) of Regulation No 1049/2001, the fifth paragraph of Article 263 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Third, the applicant emphasises that the Appeal Panel’s interpretation of Article 85(8) and Article 86(1) of Regulation No 806/2014 is contrary to the fifth paragraph of Article 263 TFEU and Article 47 of the Charter.
33      The applicant also raises other pleas directed against the second confirmatory decision and the second decision of the Appeal Panel, based on:
–        first, the fact that a period of nine and a half months had elapsed between the first decision of the Appeal Panel and the second confirmatory decision and a period of two years and one month had elapsed between the request for access and the second decision of the Appeal Panel;
–        second, infringement of the alleged obligation to adopt an amended decision;
–        third, failure to identify and disclose the other relevant documents;
–        fourth, failure to state reasons for the second confirmatory decision and the second decision of the Appeal Panel;
–        fifth, misapplication of the exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State;
–        sixth, misapplication of the exception relating to the protection of commercial interests;
–        seventh, misapplication of the exception relating to the protection of privacy and the integrity of the individual;
–        eighth, implicit misapplication of other grounds for refusal and concealment of the real grounds for refusal;
–        ninth, the conditions for consultations with third parties;
–        tenth, the erroneous approach concerning the redactions of each specific document to which the applicant had been granted partial access and the specific discussions relating to those redactions;
–        eleventh, breach of its procedural rights;
–        twelfth, breach of its rights as a result of the non-application of rules on disclosure other than those laid down by Regulation No 1049/2001.
34      It should be stated, as regards the pleas of illegality relating to the provisions of the Rules of Procedure of the Appeal Panel, that, in accordance with Article 85(10) of Regulation No 806/2014, the Appeal Panel adopted its Rules of Procedure and published them on 23 June 2017. It published a new version of those rules on 5 September 2020, followed by a final version on 20 February 2024. The second appeal before the Appeal Panel was brought on 1 February 2024 and resulted in the adoption of the second decision of the Appeal Panel on 22 May 2024. However, the content of Article 20 and Article 21(4) of the Rules of Procedure of the Appeal Panel was unchanged between the version applicable on the date on which the action was brought and that applicable on the date on which the second decision of the Appeal Panel was adopted.
The illegality of Article 20 of the Rules of Procedure of the Appeal Panel
35      Pursuant to Article 20 of the Rules of Procedure of the Appeal Panel, in the applicable versions, when the Chair of the Appeal Panel considers that the evidence is complete, the Chair is to notify the parties that the appeal has been lodged for the purposes of Article 85(4) of Regulation No 806/2014.
36      In that regard, Article 85(4) of Regulation No 806/2014 provides that ‘the Appeal Panel shall decide upon the appeal within one month after the appeal has been lodged.’
37      In the present case, it is apparent from paragraphs 8 to 19 of the second decision of the Appeal Panel that, following the lodging of the appeal on 1 February 2024, the Appeal Panel first, pursuant to Article 85(7) of Regulation No 806/2014, appointed the co-rapporteurs, organised the exchange of two sets of written observations, asked the parties whether they wished to be heard at a hearing and held a hearing at the request of the applicant. Next, on 7 May 2024, it informed the parties that, since the evidence was complete, it was notifying the parties of the lodging of the appeal, in accordance with Article 85(4) of Regulation No 806/2014. Last, on 22 May 2024, pursuant to Article 85(4) of Regulation No 806/2014, the Appeal Panel adopted its second decision.
38      The applicant submits that Article 85(4) of Regulation No 806/2014 must be interpreted literally. In its view, the appeal was lodged at the time when it was actually submitted, that is to say, on 1 February 2024. Article 20 of the Rules of Procedure of the Appeal Panel is therefore contrary to that provision, in that it contains a different definition of the concept of lodging the appeal.
39      The SRB disputes that line of argument.
40      The parties therefore do not agree on the starting point of the period provided for by Article 85(4) of Regulation No 806/2014.
41      The wording of that provision does not, in itself, support a clear interpretation of that starting point.
42      In accordance with the case-law, for the purposes of interpreting a provision of EU law, it is necessary to take into account not only the wording of that provision but also its context and the objective that it pursues (judgment of 14 November 2019, State Street Bank International, C‑255/18, EU:C:2019:967, paragraph 34).
43      As regards the context of Article 85(4) of Regulation No 806/2014, it should be noted that, in accordance with Article 85(7) of that regulation, if the appeal lodged pursuant to Article 85(3) of that regulation is admissible, as in the present case, the Appeal Panel is to examine whether it is well founded. This is followed, in accordance with Article 85(7) of Regulation No 806/2014, by various steps which ensure a fair hearing. The Appeal Panel is to invite the parties to the appeal proceedings to file observations on its own notifications or on communications from the other parties to the appeal proceedings, within specified time limits. Those parties are also to be entitled to make oral representations.
44      As regards the objective pursued by Regulation No 806/2014, it follows from Article 85 of that regulation that the Appeal Panel was established to ensure that a body which is internal to the SRB – composed of experts, having a certain independence and performing quasi-judicial functions through adversarial procedures – reviews certain decisions of that agency. The EU legislature intended to provide the addressees of those SRB decisions, and other persons to whom the decisions are of concern, with an administrative mechanism for protecting their rights (see, to that effect and by analogy, judgment of 9 March 2023, ACER v Aquind, C‑46/21 P, EU:C:2023:182, paragraph 59).
45      In order to enable the Appeal Panel to exercise its quasi-judicial functions through adversarial procedures and therefore to attain the objective pursued by Regulation No 806/2014, Article 85(4) of that regulation must be interpreted in the light of Article 85(7) thereof.
46      In setting the starting point provided for in Article 85(4) of Regulation No 806/2014 at the point when the evidence is complete, Article 20 of the Rules of Procedure of the Appeal Panel ensures, in actual fact, that the proceedings before it are conducted in an adversarial manner, so that the addressees of those SRB decisions and other persons to whom the decisions are of concern benefit from a quasi-judicial mechanism for the purpose of protecting their rights.
47      Accordingly, Article 20 of the Rules of Procedure of the Appeal Panel does not infringe Article 85(4) of Regulation No 806/2014, but implements that provision in a manner consistent with Article 85(7) of that regulation.
48      Therefore, the applicant’s plea of illegality raised against Article 20 of the Rules of Procedure of the Appeal Panel must, in any event, be rejected as unfounded without there being any need to examine whether it is admissible.
The illegality of Article 21(4) of the Rules of Procedure of the Appeal Panel
49      Under Article 21(4) of the Rules of Procedure of the Appeal Panel, in the applicable versions, the Appeal Panel may confirm the decision taken by the SRB, or remit the case to the latter, thus leading, in accordance with Article 85(8) of Regulation No 806/2014, to the adoption of an amended decision by the SRB as soon as reasonably possible in the light of the complexity of the case and the amendments to be made, as well as in compliance with good administrative practices.
50      In that regard, Article 85(8) of Regulation No 806/2014 provides that ‘the Appeal Panel may confirm the decision taken by the Board, or remit the case to the latter’ and that ‘the Board shall be bound by the decision of Appeal Panel and it shall adopt an amended decision regarding the case concerned.’
51      According to the applicant, first of all, Article 21(4) of the Rules of Procedure of the Appeal Panel goes beyond what is provided for in Article 85(8) of Regulation No 806/2014, since the Appeal Panel does not have the competence to determine the period within which an amended decision should be adopted. Next, that provision is contrary to Article 8(1) of Regulation No 1049/2001, according to which confirmatory applications must be handled promptly, that is to say, save in exceptional circumstances, within 15 working days from registration of such an application. Last, that provision unduly delays access to the courts in breach of the fifth paragraph of Article 263 TFEU and Article 47 of the Charter.
52      However, contrary to what the applicant claims, Article 21(4) of the Rules of Procedure of the Appeal Panel lays down no time limit. That provision is merely an expression of the principle of good administration. The reasonable time principle, which is incorporated, as an element of the right to good administration, in Article 41(1) of the Charter, must be observed in every EU administrative procedure (judgments of 1 July 2008, Compagnie maritime belge v Commission, T‑276/04, EU:T:2008:237, paragraph 39, and of 21 May 2014, Catinis v Commission, T‑447/11, EU:T:2014:267, paragraph 34).
53      Moreover, there is an obligation to act within a reasonable time only in cases other than those where the legislature has expressly excluded or expressly laid down a specific time limit (judgment of 5 October 2004, Sanders and Others v Commission, T‑45/01, EU:T:2004:289, paragraph 59). Accordingly, in the absence of a statutory time limit, the SRB cannot adopt a decision without complying with the reasonable time principle. To the extent that, as the applicant maintains, the legislature has laid down time limits in Article 8 of Regulation No 1049/2001 for the handling of confirmatory applications, Article 21(4) of the Rules of Procedure of the Appeal Panel can be applied, in the field of access to documents, only in a manner consistent with that provision of Regulation No 1049/2001.
54      As long as Article 21(4) of the Rules of Procedure of the Appeal Panel is applied in such a way as not to undermine the effectiveness of the time limits and the mechanism provided for in Article 8 of Regulation No 1049/2001, that provision of the Rules of Procedure of the Appeal Panel, contrary to what the applicant claims, does not infringe Article 8(1) of Regulation No 1049/2001.
55      In those circumstances, contrary to what the applicant claims, Article 21(4) of the Rules of Procedure of the Appeal Panel does not unduly delay access to the courts in breach of the fifth paragraph of Article 263 TFEU and Article 47 of the Charter.
56      Consequently, the plea of illegality of Article 21(4) of the Rules of Procedure of the Appeal Panel must, in any event, be rejected as unfounded without it being necessary to examine whether it is admissible.
The illegality of the Appeal Panel’s interpretation of Article 85(8) and Article 86(1) of Regulation No 806/2014
57      The applicant submits that the practice of the Appeal Panel is to consider that, where it has dismissed an appeal in part and ruled in favour of the appellant in part by remitting the case to the SRB, it is not required, in the event of an appeal against the new decision of the SRB, to reassess those parts of the SRB’s initial decision in respect of which it had found that no amendment was necessary. The Appeal Panel thus declares inadmissible any arguments which relate to those parts of the SRB’s initial decision which require no amendment, unless the appellant, by those arguments, maintains that the SRB has incorrectly implemented the Appeal Panel’s decision. According to the applicant, that practice of the Appeal Panel constitutes an unlawful interpretation of Article 85(8) and Article 86(1) of Regulation No 806/2014.
58      In the present case, in paragraph 63 of its second decision, the Appeal Panel considered that all the applicant’s arguments should be declared admissible and examined on their merits.
59      Since that conclusion is favourable to the applicant, its arguments alleging that the Appeal Panel’s interpretation of Article 85(8) and Article 86(1) of Regulation No 806/2014 is unlawful are ineffective.
60      Consequently, the plea alleging that the Appeal Panel’s interpretation of Article 85(8) and Article 86(1) of Regulation No 806/2014 is unlawful must be rejected as ineffective.
The pleas based on the fact that a period of nine and a half months had elapsed between the first decision of the Appeal Panel and the second confirmatory decision and a period of two years and one month had elapsed between the request for access and the second decision of the Appeal Panel
61      The applicant argues that the length of the period which had elapsed between the request for access and the second decision of the Appeal Panel, but also between the first decision of the Appeal Panel and the second confirmatory decision, amounts to a refusal of access and that such a refusal is unlawful.
62      The SRB disputes that line of argument.
63      In the present case, the request for access was submitted on 14 April 2022 and clarified on 20 April 2022. The second decision of the Appeal Panel was adopted on 22 May 2024, which means that two years and one month had elapsed between the request for access and that decision. The first decision of the Appeal Panel was adopted on 8 March 2023 and the second confirmatory decision was adopted on 21 December 2023. Nine and a half months had therefore elapsed between those two decisions.
64      In the second decision of the Appeal Panel, the latter noted that the adoption of the second confirmatory decision had required consultations with more than 10 different stakeholders on aspects which may have significant implications on financial stability, resolution policy and the commercial interests of the entity concerned. The Appeal Panel considered that the delay between its first decision and the second confirmatory decision may have been caused by the delays of the consulted stakeholders. However, it stated that it was not persuaded that a period of more than nine months from the adoption of its first decision constituted a reasonable time. In that regard, the Appeal Panel noted, first, that the decision in question was a confirmatory decision under Regulation No 1049/2001 and, second, that it had given the SRB specific guidance in its first decision. Nonetheless, the Appeal Panel considered that remittal of the case to the SRB on that ground would be devoid of purpose or even counterproductive, since such a remittal would not remedy the delay found to have occurred but would risk delaying the applicant’s access to the courts.
65      In the present case, it is because the requested information is covered by the exceptions provided for in Article 4 of Regulation No 1049/2001 that access to it was refused. Neither the period between the request for access and the second decision of the Appeal Panel nor the period between the first decision of the Appeal Panel and the second confirmatory decision, even though they were lengthy, can alter the refusal of access.
66      Moreover, it does not follow from Regulation No 1049/2001 that the consequence of a delay in adopting a confirmatory decision automatically renders that decision unlawful (see, to that effect, judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraphs 78, 79 and 84).
67      There is therefore no need to find that the refusal of access was unlawful on the ground that the period between the request for access and the second decision of the Appeal Panel and the period between the first decision of the Appeal Panel and the second confirmatory decision was lengthy. The annulment of the second confirmatory decision and the second decision of the Appeal Panel on that ground alone would merely cause the administrative procedure for access to documents to be reopened without, however, providing the administration with any reasons for modifying the content of its refusal of access. Moreover, that conclusion does not deprive the applicant of the opportunity to seek, through an action for damages, compensation for any loss resulting from the lateness of the response to its request for access (see, to that effect, judgment of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 71).
68      In the light of the foregoing, the pleas based on the fact that a period of nine and a half months had elapsed between the first decision of the Appeal Panel and the second confirmatory decision and a period of two years and one month had elapsed between the request for access and the second decision of the Appeal Panel must be rejected as ineffective.
The pleas based on infringement of the alleged obligation to adopt an amended decision
69      The applicant criticises the second confirmatory decision for merely amending the first confirmatory decision, as is clear from its wording. However, the applicant submits that it is entitled to a new decision which incorporates the amendments and replaces the first confirmatory decision, failing which the annulment of that second decision would be interpreted as reinstating the earlier decision. Accordingly, the SRB infringed Article 8 of Regulation No 1049/2001, Articles 8 and 9 of Decision SRB/ES/2017/01 of 9 February 2017 on public access to its documents, Article 21(4) of the Rules of Procedure of the Appeal Panel, Article 41 of the Charter and the first sentence of Article 85(8) of Regulation No 806/2014, which expressly provides for an amended decision.
70      The SRB disputes that line of argument.
71      It must be noted, as the Appeal Panel did, that the SRB adopted the second confirmatory decision, in which it stated, first, that, in accordance with the first decision of the Appeal Panel, it was amending the first confirmatory decision and, second, that it was adding a new section in which it was providing a detailed assessment of the reasons why the content of the documents in question could not be disclosed.
72      In the light of the foregoing, it must be held that, contrary to what the applicant seems to maintain, it is clear from the wording of the second confirmatory decision that it is in fact an ‘amended decision’ within the meaning of Article 85(8) of Regulation No 806/2014. Moreover, contrary to what the applicant seems to fear, if the second confirmatory decision and the second decision of the Appeal Panel are annulled, the SRB and the Appeal Panel will comply with the judgment of the Court, since the refusal by an institution or agency to comply with a judgment of the Court will in itself involve non-material damage for the party who has obtained a judgment in his or her favour (judgment of 15 October 2008, Camar v Commission, T‑457/04 and T‑223/05, not published, EU:T:2008:439, paragraph 60).
73      Accordingly, there has been no infringement of Article 8 of Regulation No 1049/2001, Articles 8 and 9 of Decision SRB/ES/2017/01, Article 21(4) of the Rules of Procedure of the Appeal Panel, Article 41 of the Charter and the first sentence of Article 85(8) of Regulation No 806/2014.
74      Consequently, the pleas based on infringement of the alleged obligation to adopt an amended decision must be rejected.
The pleas alleging failure to identify and disclose the other relevant documents
75      It should be recalled that, by its request, the applicant sought, inter alia, access to all the relevant documents on which Decisions SRB/EES/2022/18 and SRB/EES/2022/20 were based, including the valuation of Sberbank Slovenia, the marketing process and the ECB’s assessment that that institution was failing or likely to fail, and the other documents indicating that the conditions for the resolution action under Regulation No 806/2014 were satisfied.
76      In the second confirmatory decision, the SRB stated, as regards that part of the request for access, that it had identified the following documents as falling within the scope of that request: valuations 1 and 2 of Sberbank Slovenia; the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia of 27 February 2022; the SRB’s response to that assessment dated 27 February 2022; the minutes of the SRB meetings held on 26, 27 and 28 February and 1 March 2022; the minutes of the meetings of the European Resolution College held on 26 and 27 February and 1 March 2022 and the email exchanges with information on the assessment and resolution strategy; and the notary minutes. The SRB also stated that, following the confirmatory application, it had identified another document, namely the updated offer.
77      First, the applicant argues, in essence, that it is implausible that no documents other than those identified by the SRB in the second confirmatory decision exist, since it is clear that the actions of the SRB and those of the ECB in relation to Sberbank Slovenia generated a large number of documents, such as emails, minutes of meetings and recordings of calls and videoconferences. Moreover, the SRB infringed Article 296 TFEU and Article 41 of the Charter by failing to provide any reason to explain the non-existence of other relevant documents, or any ground for refusing to disclose those documents.
78      Second, the applicant argues, in essence, that the Appeal Panel was wrong to consider that the applicant had restricted the scope of the request for access in its confirmatory application. Moreover, it criticises the Appeal Panel for rejecting the idea that the actions of the ECB and those of the SRB in relation to Sberbank Slovenia had generated a larger number of documents than those identified by the SRB in the second confirmatory decision.
79      The SRB disputes that line of argument.
80      In the first place, according to the settled case-law of the Court, a presumption of veracity attaches to any statement made by the institutions relating to the non-existence of documents requested. That is, however, a simple presumption which the applicant may rebut in any way on the basis of relevant and consistent evidence. That presumption must be applied by analogy where the institution declares that it is not in possession of the documents requested (see judgments of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 155 and the case-law cited, and of 15 March 2023, Basaglia v Commission, T‑597/21, not published, EU:T:2023:133, paragraph 25 and the case-law cited).
81      In order to rebut the presumption of veracity attaching to the SRB’s statement referred to in paragraph 76 above, the applicant cannot merely argue that it is implausible that the actions of the SRB and the actions of the ECB generated those documents alone (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).
82      In those circumstances, in the absence of relevant and consistent evidence to the contrary relied on by the applicant, it must be concluded that the applicant has failed to call into question the SRB’s statement referred to in paragraph 76 above.
83      Moreover, the SRB cannot be criticised for having infringed Article 296 TFEU and Article 41 of the Charter by failing to provide any reason to explain the non-existence of other relevant documents, or any ground for refusing to disclose those documents.
84      The applicant did not submit, in its confirmatory application, any relevant and consistent evidence that documents other than those identified by the SRB exist or that the actions of the SRB and those of the ECB generated any documents covered by its request. In those circumstances, the SRB logically did not expressly state the reasons why there were no other documents falling within the scope of the applicant’s request, and the applicant therefore cannot criticise the SRB for not doing so.
85      In the absence of relevant and consistent evidence that documents other than those identified by the SRB exist, nor can the applicant criticise the SRB for failing to set out, in the second confirmatory decision, any ‘reasons for the non-disclosure [of those] documents’.
86      In the second place, it should be noted that, by the third ground of its second appeal before the Appeal Panel, the applicant argued that the vast majority of the ‘other documents’, as referred to in paragraph 75 above, had been neither disclosed nor identified by the SRB and that the latter had no grounds to justify their non-disclosure.
87      In its second decision, in response to that line of argument, the Appeal Panel primarily noted that the basis of the case was the first appeal brought by the applicant concerning Decision SRB/EES/2022/18, the notary minutes and the updated offer, and that it was for the applicant to refute the SRB’s statement by means of relevant and consistent evidence. The Appeal Panel then found that the applicant had not provided any evidence that the SRB had failed to take into account other relevant documents, which was sufficient to reject the applicant’s line of argument.
88      In so far as it is apparent from paragraphs 80 to 85 above that the Appeal Panel was correct in finding that no relevant and consistent evidence made it possible to refute the SRB’s statement and that it was not required to accept the argument that the actions of the ECB and those of the SRB in relation to Sberbank Slovenia had generated a larger number of documents than those identified by the SRB in the second confirmatory decision, there is no need to examine the Appeal Panel’s finding that the applicant restricted its request for access. That is, at most, a ground of that decision included purely for the sake of completeness, with the result that the applicant’s arguments challenging it are ineffective (see, to that effect, judgments of 8 July 2004, Dalmine v Commission, T‑50/00, EU:T:2004:220, paragraph 146, and of 16 January 2008, Scippacercola and Terezakis v Commission, T‑306/05, not published, EU:T:2008:9, paragraph 145).
89      Consequently, the pleas alleging failure to identify and disclose other relevant documents must be rejected.
The pleas alleging a failure to state reasons and unlawful reliance on new grounds in support of the refusal of access
–       Second confirmatory decision
90      In essence, the applicant claims that the SRB infringed the obligation to state reasons, Article 296 TFEU, Article 41 of the Charter and its right of access to documents under Article 2(1) of Regulation No 1049/2001, in that the second confirmatory decision is not sufficiently reasoned. According to the applicant, the SRB’s reasoning is vague and general and does not set out, for each document or each redaction, the reasons why they are covered by the exceptions provided for in Article 4 of Regulation No 1049/2001.
91      The SRB disputes that line of argument.
92      It must be borne in mind that 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 the measures 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. It is not necessary for the reasoning to specify 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 (see judgments of 1 June 2022, Del Valle Ruíz and Others v Commission and SRB, T‑510/17, EU:T:2022:312, paragraph 544 and the case-law cited, and of 1 June 2022, Algebris (UK) and Anchorage Capital Group v Commission, T‑570/17, EU:T:2022:314, paragraph 146 and the case-law cited).
93      In the present case, account must also be taken of the need for the SRB to abstain from referring to matters which would indirectly undermine the interests which the exceptions provided for in Article 4 of Regulation No 1049/2001 are specifically designed to protect, as is made clear in Article 9(4) and Article 11(2) of that regulation (judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 83).
94      In the second confirmatory decision, the first section concerns the scope of the request for access. In that section, the SRB recalls, inter alia, the wording of the request for access. It states that the documents falling within the scope of that request are Decision SRB/EES/2022/18 and Decision SRB/EES/2022/20, including valuations 1 and 2; the Commission decision of 1 March 2022 endorsing the resolution scheme for Sberbank Slovenia; the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia; the SRB’s response to that assessment; the minutes of the SRB meetings held on 26, 27 and 28 February and 1 March 2022; the minutes of the meetings of the European Resolution College held on 26 and 27 February and 1 March 2022 and the email exchanges with information on the assessment and resolution strategy; the order addressed to the Slovenian resolution authority responsible for implementing Decision SRB/EES/2022/20; and the notary minutes and the updated offer.
95      In a second section, the SRB sets out its preliminary observations. With regard to the three documents which were the subject matter of the appeal before the Appeal Panel, namely Decision SRB/EES/2022/18, the notary minutes and the updated offer, the SRB states that it took into account both the applicant’s arguments and the Appeal Panel’s considerations. It therefore decides to grant more extensive access to those three documents. The SRB also states that, with respect to the documents containing information concerning or originating from third parties, it consulted the persons concerned. Moreover, the SRB recalls that the right of access to documents does not depend on the interest of the person who requests them and that, pursuant to Article 88(5) of Regulation No 806/2014, it is required to ensure that information is not confidential before disclosing it.
96      In a third section, the SRB refers to the type of information which has been redacted. Moreover, for each of the exceptions, the SRB explains how disclosure could undermine the interest protected by the exception in question.
97      The fourth section of the second confirmatory decision contains more detailed explanations concerning the redactions in the three documents which were the subject matter of the appeal before the Appeal Panel.
98      In a fifth section, the SRB provides additional comments on the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia; the SRB’s response to that assessment; the minutes of the SRB meetings held on 26, 27 and 28 February and 1 March 2022; the minutes of the meetings of the European Resolution College held on 26 and 27 February and 1 March 2022 and the email exchanges containing information on the assessment and resolution strategy; and the notary minutes and the updated offer.
99      In a sixth section, the SRB explains that it has found no argument capable of justifying an overriding public interest in disclosure and that the applicant has not presented any relevant arguments.
100    In the light of the foregoing, the applicant is able to understand the specific reasons why the SRB took the view that the disclosure of the requested information was covered by the exceptions relied on and the Court is able to exercise its power of review.
101    Therefore, the applicant’s arguments alleging an infringement of the obligation to state reasons, Article 296 TFEU, Article 41 of the Charter and its right of access to documents under Article 2(1) of Regulation No 1049/2001 must be rejected.
–       Second decision of the Appeal Panel
102    First of all, the applicant argues that, in the second decision of the Appeal Panel, the latter merely stated that, following its first decision, the SRB had provided further explanations in the second confirmatory decision. Next, the applicant states that, in its first decision, the Appeal Panel had doubts as to the plausibility of the SRB’s reasoning and considers that the reasoning set out in the second confirmatory decision is merely a pretext for refusing access to the requested information. Last, it argues that the Appeal Panel failed to find that the SRB had unlawfully relied on new grounds in support of the refusal of access.
103    The SRB disputes that line of argument.
104    First, Article 85(9) of Regulation No 806/2014 provides that ‘the decisions of the Appeal Panel shall be reasoned’.
105    In its first decision, the Appeal Panel had found that the statement of reasons of the first confirmatory decision was insufficient, since the SRB had not adequately explained why some information had been redacted. By contrast, in its second decision, the Appeal Panel found that the second confirmatory decision included a new section which strengthened the grounds for refusal of access relied on in respect of each document and each part of those documents. The Appeal Panel found, inter alia, in paragraph 89 of its second decision, that the new section specifically referred to the redactions and their justification under the relevant exceptions provided for by Regulation No 1049/2001.
106    It follows from the foregoing that the Appeal Panel provided sufficient reasons as to why it considered that the second confirmatory decision was reasoned and that the applicant was able to understand them. Therefore, contrary to what the applicant claims, the reasoning of the second decision of the Appeal Panel met the requirements of Article 85(9) of Regulation No 806/2014 and Article 296 TFEU.
107    Second, it should be noted that the applicant’s line of argument that the Appeal Panel should have had doubts as to the plausibility of the SRB’s reasoning in the second confirmatory decision calls into question whether that reasoning is well founded and is therefore irrelevant in the context of the present plea, alleging a failure to state reasons in the second decision of the Appeal Panel (see, to that effect, judgments of 18 June 2015, Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37, and of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 85).
108    Third, in paragraph 150 of its second decision, the Appeal Panel noted, in essence, that nothing in the Treaties or in the relevant legal framework prohibited the SRB from relying on different reasons in a situation where a decision of the SRB was an ‘amended decision’ within the meaning of Article 85(8) of Regulation No 806/2014.
109    In the present case, in its first decision, the Appeal Panel considered that the reasoning in the first confirmatory decision was insufficient and incorrect. The SRB therefore had to reassess the requested information in the light of the Appeal Panel’s guidance and the exceptions provided for in Article 4 of Regulation No 1049/2001. That new assessment could naturally lead the SRB to conclude that certain redactions which, in the first confirmatory decision, were based on an exception that the Appeal Panel had ruled inapplicable or insufficiently substantiated could also be based on a different exception, which the SRB had not previously taken into consideration, since it had taken the view that the exception on which it had initially relied was sufficient.
110    In that regard, it is clear from settled case-law that, when assessing a request for access to documents held by it, an institution or agency may take into account more than one of the grounds for refusal set out in Article 4 of Regulation No 1049/2001 (judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 113, and of 28 June 2012, Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 55).
111    It follows that the SRB, in the amended decision which it adopted following remittal by the Appeal Panel, cannot be required to confine itself to the legal basis adopted in support of its first confirmatory decision if another ground for refusal exists (judgments of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 83, and of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 111).
112    Consequently, the applicant cannot criticise the Appeal Panel for considering that the SRB could rely on new grounds as the basis for its refusal of access.
113    In the light of the foregoing, those arguments put forward by the applicant regarding the second decision of the Appeal Panel must be rejected.
114    Therefore, the pleas alleging a failure to state reasons and unlawful reliance on new grounds must be rejected.
The pleas alleging misapplication of the exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State
115    According to the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, access to a document is to be refused where disclosure would undermine the protection of the financial, monetary or economic policy of the European Union or of a Member State.
116    First, the applicant maintains that the SRB, as an agency, has no competence in matters of financial, economic and monetary policy. It is therefore not entitled to rely on the exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001.
117    Second, the applicant argues that the SRB reproduced, in the second confirmatory decision, reasoning which the Appeal Panel had already rejected in its first decision. The applicant submits that, although the Appeal Panel also made that finding in its second decision, it erred in failing to find that, in not following its guidance, the SRB had infringed Article 85(8) of Regulation No 806/2014. Moreover, the applicant criticises the Appeal Panel for accepting that the SRB could present new grounds to justify the refusal of access. The Appeal Panel also erred in accepting that the SRB could rely on Article 4(1)(c) of Decision 2004/258/EC of the [ECB] of 4 March 2004 on public access to [ECB] documents (OJ 2004 L 80, p. 42) in order to justify the redactions made.
118    The SRB disputes that line of argument.
119    In the first place, it should be noted that, in the second confirmatory decision, the SRB stated that some information in Decision SRB/EES/2022/18 and Decision SRB/EES/2022/20, including valuations 1 and 2, could not be disclosed because it was covered by the exception relating to the protection of the public interest as regards the financial, economic or monetary policy of the European Union or of a Member State, provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, and the exception relating to the protection of commercial interests, provided for in the first indent of Article 4(2) of that regulation.
120    In so far as, in the present case, the exception referred to in the first indent of Article 4(2) of Regulation No 1049/2001, relating to the protection of commercial interests, is in itself capable of justifying non-disclosure of the requested information, it is unnecessary, for reasons of procedural economy and in the light of paragraphs 129 to 150 below, to examine whether the applicant’s arguments relating to the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 are well founded.
121    As regards the SRB’s response to the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia, it cannot be disclosed in accordance with the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, the first indent of Article 4(2) of that regulation and the second subparagraph of Article 4(3) of that regulation relating to the protection of documents for internal use. The same is true of the minutes of the meetings of the European Resolution College held on 26 and 27 February and 1 March 2022 and the email exchanges with information on the assessment and resolution strategy, and the minutes of the SRB meetings held on 26, 27 and 28 February and 1 March 2022.
122    Those documents are therefore, in any event, covered by the exception relating to the protection of documents for internal use provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001. Since that exception in itself justifies non-disclosure of the requested documents, any argument put forward by the applicant concerning the merits of the refusal of access to those documents under the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 must be considered to be ineffective.
123    In the second place, the Appeal Panel, in its second decision, considered that it was incorrect to justify the redactions concerning the percentages of deposit outflows, liquidity coverage and counterbalancing capacity on the basis of the exception provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001. The Appeal Panel noted, however, that the SRB had also relied on the protection of the commercial interests of the persons concerned under the first indent of Article 4(2) of Regulation No 1049/2001. Moreover, the SRB had noted that that information originated from the prudential supervisor and that the ECB had stated that it fell within the scope of Article 4(1)(c) of Decision 2004/258, relating to the confidentiality of information that is protected as such under EU law, read in conjunction with the first indent of Article 4(2) of that decision, relating to the protection of commercial interests.
124    With regard to the reasons given in the second confirmatory decision based on the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001, the Appeal Panel noted that the Court had already held, in paragraphs 207 to 306 of the judgment of 6 October 2021, Aeris Invest v ECB (T‑827/17, EU:T:2021:660), that the refusal to disclose the parts of documents concerning the liquidity of an entity under resolution and its capital situation was justified because such disclosure would affect adversely the interests of that entity and the proper functioning of the prudential supervision and resolution system. The Appeal Panel therefore considered that those interests would also be undermined if disclosure of the information was obtained not from an ECB document but from an SRB document containing supervisory information originating from the ECB. The Appeal Panel thus approved those reasons based on the exception relating to the protection of commercial interests.
125    In the light of the foregoing, it should be noted that the Appeal Panel clearly stated in its second decision that the SRB had wrongly justified the redaction of certain information concerning the deterioration of the liquidity situation of Sberbank Slovenia on the basis of the exception provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001. However, the Appeal Panel considered that this was irrelevant in so far as there were grounds for refusing access based on the first indent of Article 4(2) of Regulation No 1049/2001.
126    Moreover, contrary to what the applicant claims, as is apparent from paragraph 123 above, the SRB did not rely on the provisions of Decision 2004/258 to justify the redactions at issue. A reading of that decision supports the finding that the SRB consulted the ECB, which considered that disclosure of information on the liquidity situation of that institution would undermine the protection of commercial interests guaranteed by the first indent of Article 4(2) of Decision 2004/258 and the confidentiality of information that is protected as such under EU law, as guaranteed by Article 4(1)(c) of that decision.
127    The SRB, for its part, did not rely on Article 4(1)(c) and (2) of Decision 2004/258 in the second confirmatory decision. In those circumstances, the Appeal Panel was not able to accept, as the applicant alleges, that the SRB relies on those provisions of Decision 2004/258.
128    It follows from all of the foregoing that the pleas alleging misapplication of the exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State must, in any event, be rejected.
The pleas alleging misapplication of the exception relating to the protection of commercial interests
129    According to the first indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of commercial interests of a natural or legal person, including intellectual property, unless there is an overriding public interest in disclosure.
130    First, the applicant claims that the SRB wrongly applied the exception relating to the protection of commercial interests provided for in the first indent of Article 4(2) of Regulation No 1049/2001. According to the applicant, the SRB’s reasoning in the second confirmatory decision is, in that regard, imprecise, vague and hypothetical. Moreover, the applicant submits, in essence, that it is not plausible that no overriding public interest in the disclosure of the requested information could be identified.
131    Second, the applicant submits that the Appeal Panel erred in accepting the SRB’s reasons based on the exception relating to commercial interests provided for in the first indent of Article 4(2) of Regulation No 1049/2001. According to the applicant, the Appeal Panel, in its first decision, stated that the public interest required greater transparency and, in its second decision, it acknowledged that the SRB’s reference to the overriding public interest was succinct. The applicant concludes from this that the statement of reasons in the second confirmatory decision is inadequate.
132    The SRB disputes that line of argument.
133    As a preliminary point, it should be recalled that, in so far as they derogate from the principle of the widest possible public access to documents by restricting such access, exceptions to that principle, in particular those provided in Article 4 of Regulation No 1049/2001, must, according to settled case-law, be interpreted and applied strictly (see, to that effect, judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 73, and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 30).
134    It follows that if an institution or an agency decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).
135    It is also important to note that it is not possible to regard all information concerning a company and its business relations as requiring the protection which must be guaranteed to commercial interests under the first indent of Article 4(2) of Regulation No 1049/2001 without frustrating the application of the general principle of giving the public the widest possible access to documents held by the institutions or agencies. In order to apply that exception, it must be shown that the documents in question contain elements which may, as a result of the disclosure, seriously undermine the commercial interests of a legal person. That is the case, in particular, when the requested documents contain commercially sensitive information relating, in particular, to the commercial strategies of the undertakings concerned or to their customer relations, or where those documents contain information particular to that undertaking which reveals its expertise (judgments of 9 September 2014, MasterCard and Others v Commission, T‑516/11, not published, EU:T:2014:759, paragraphs 82 to 84, and of 11 July 2018, Rogesa v Commission, T‑643/13, not published, EU:T:2018:423, paragraphs 69 and 70).
136    As regards the overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001, it is the only interest which can take priority over the need to protect the commercial interests set out in the first indent of Article 4(2) of that regulation (judgment of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 145).
137    It is for the person arguing that there is an overriding public interest to show that there are specific circumstances justifying the disclosure of the documents concerned (see judgment of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 124 and the case-law cited).
138    Accordingly, the system of exception laid down in Article 4(2) of Regulation No 1049/2001 is based on a weighing of the opposing interests in a given situation, that is to say, on the one hand, the interests which would be promoted 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 what interest must prevail in the particular case (judgment of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 125).
139    In the first place, as regards the second confirmatory decision, it should be noted, first, that, as is apparent from that decision, the information redacted by the SRB pursuant to the first indent of Article 4(2) of Regulation No 1049/2001 relates to Sberbank Slovenia’s economic activities and financial data and to its particular position on the market. That information concerns the assessment of its situation, its relations with customers and partners, deposit outflows and its ability to absorb losses, in particular indicators relating to its liquidity coverage ratio and its counterbalancing capacity. The other information redacted on that basis is commercially sensitive information reflecting the strategic and commercial decisions of the institutions participating in the marketing process for Sberbank Slovenia. That includes commercial information and financial information presented in support of their offer. The SRB stated that this information went beyond what was publicly available and that it had gathered comments from the parties involved, in particular from Sberbank Slovenia and the institutions participating in the marketing process for that bank.
140    In that decision, the SRB found that the need to protect the commercial interests of Sberbank Slovenia continued to exist since it remained an active credit institution. In the light of the nature of the redacted information, set out in paragraph 136 above, the SRB rightly took the view that its disclosure could have adversely affected the interests of Sberbank Slovenia, even though the resolution scheme for that institution was intended to enable it to continue its activities. Similarly, it rightly considered that the disclosure of sensitive information concerning the economic activities of the institutions participating in the marketing process for Sberbank Slovenia was likely to undermine their commercial interests. Disclosing such information could reveal the commercial policies of those institutions and the means available to them. Moreover, as the SRB stated in the second confirmatory decision, the disclosure of sensitive commercial information shared by institutions in the context of resolution planning might undermine their willingness to cooperate fully with the resolution authorities in the future.
141    Accordingly, in the second confirmatory decision, the SRB defined the redacted information covered by the exception relating to the protection of commercial interests, explained that it had consulted the persons concerned and gave specific reasons why access to that information could specifically and effectively undermine the commercial interests of those persons. Therefore, the applicant cannot argue that the second confirmatory decision is imprecise, vague and hypothetical in that regard.
142    Second, the SRB considered in the second confirmatory decision that there was no overriding public interest in disclosure.
143    In that regard, the applicant considers that there must be an overriding interest in disclosure, since the SRB published information on the situation of Sberbank Slovenia at the very time when that situation prevailed. However, even if the SRB took the view that there was an interest in informing the public by publishing, at the time, certain information on the situation of that bank, it is not apparent from the file that, on that occasion, it disclosed confidential information affecting the commercial interests of the persons involved. That interest therefore did not override the need to protect information the disclosure of which would undermine the commercial interests of the institutions concerned.
144    Contrary to what the applicant claims, it is clear from paragraph 140 above that the SRB properly weighed the different interests at stake. In a succinct but clear manner, the SRB found that it had not been able to identify any overriding public interest justifying disclosure. It noted that the applicant had not put forward any argument capable of showing that there was an overriding public interest justifying such disclosure. It added that any interest in obtaining documents for the purposes of court proceedings constituted a private interest.
145    In those circumstances, in the absence of any argument capable of showing that there was an overriding public interest justifying disclosure of the information at issue, there is no reason to call into question the SRB’s finding in that regard.
146    In the second place, the Appeal Panel considered, in its second decision, that the SRB had used the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001 not to negate the transparency regime, but to refuse disclosure of some parts of the documents in question. The Appeal Panel next examined whether the SRB had complied with the guidance which the Appeal Panel had provided in its first decision. In that regard, the Appeal Panel found that the SRB had reviewed its position and had disclosed some additional parts of the documents in question. The SRB also confirmed the redaction of other parts of those documents, providing additional justification as to why those specific parts could not be disclosed on the basis of that exception. In essence, the Appeal Panel stated that, with regard to that exception, the guidance which it had provided in its first decision was general, since it had invited the SRB to explain, in a clear and unequivocal manner, which redactions were justified by which specific exception. Last, the Appeal Panel considered that, in so far as the SRB had strengthened the justification relating to that exception, it had complied with that guidance.
147    In that regard, although the applicant disputes that the SRB duly complied with the guidance established by the Appeal Panel in its first decision, it should be noted, on the one hand, that the Appeal Panel rightly stated that, in its first decision, it had criticised the SRB for not properly justifying several redactions in a clear and unequivocal manner. On the other hand, it is true that the guidance which it established in its first decision, concerning the application of the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001, was general.
148    In those circumstances, the Court finds, as did the Appeal Panel, that the second confirmatory decision contains, for each item of information concerned, the specific reasons why the SRB considered that its disclosure was covered by the exception provided for in the first indent of Article 4(2) of Regulation No 1049/2001 and that, accordingly, the SRB complied with the guidance established by the Appeal Panel in its first decision. It cannot therefore be maintained that the SRB failed to comply with the first decision of the Appeal Panel. That argument of the applicant must be rejected.
149    Moreover, as is apparent from paragraphs 144 and 145 above, the reasoning set out in the second confirmatory decision regarding the overriding public interest in disclosure, although succinct, was, as the Appeal Panel found in essence, sufficient. Furthermore, the applicant failed to identify any overriding public interest justifying disclosure of the information concerned either before the Appeal Panel or before the Court.
150    Consequently, the pleas alleging misapplication of the exception relating to the protection of commercial interests must be rejected.
The pleas alleging misapplication of the exception relating to the protection of privacy and the integrity of the individual
151    Article 4(1)(b) of Regulation No 1049/2001 provides that ‘the institutions shall refuse access to a document where disclosure would undermine the protection of … privacy and the integrity of the individual, in particular in accordance with [EU] legislation regarding the protection of personal data.’
152    The applicant claims that the SRB wrongly applied the exception relating to the protection of privacy and the integrity of the individual provided for in Article 4(1)(b) of Regulation No 1049/2001 and that the Appeal Panel erred in considering that that exception was relevant. The references to that exception in the second confirmatory decision were neither explained nor substantiated. According to the applicant, the identification of the persons involved in a resolution procedure is necessary in the light of the type of scrutiny and accountability which the rules on public access to documents are intended to create. The applicant argues that references to names are normal in virtually all professional contexts. Access to those names facilitates the assessment of potential conflicts of interest. The applicant also claims that Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39) does not apply in the present case.
153    The SRB disputes that line of argument.
154    In the first place, contrary to what the applicant claims, the SRB has sufficiently substantiated its position. In its second confirmatory decision, the SRB, by means of nine paragraphs, recalled the wording of Article 4(1)(b) of Regulation No 1049/2001, clarified the concept of personal data within the meaning of Regulation 2018/1725, cited the case-law of the EU Courts in that regard and explained that certain parts of the requested documents contained personal data. Next, in a paragraph relating to the notary minutes and the updated offer, the SRB specifically identified the information which it regarded as personal data. It explained that the disclosure of that specifically identified information would undermine the protection of privacy and the integrity of the individual.
155    It follows that the applicant is able to understand the specific reasons why the SRB took the view that the disclosure of the information at issue was covered by the exception relied on and the Court is able to exercise its power of review.
156    In the second place, in its second decision, the Appeal Panel considered, in the light of the case-law of the EU Courts, that, by accepting to participate in the crisis management of Sberbank Slovenia, the persons referred to in the documents in question had not relinquished their right to privacy, so that the exception provided for in Article 4(1)(b) of Regulation No 1049/2001, relating to the protection of privacy and the integrity of the individual, should apply to their personal data. The Appeal Panel agreed with the SRB on that point and accepted that disclosure of those personal data would amount to a transfer within the meaning of Regulation 2018/1725, which could be carried out only under the conditions laid down by that regulation. In its view, those conditions were not satisfied in the present case.
157    In that regard, the Appeal Panel rightly noted that the Court of Justice had already held, in paragraph 29 of its judgment of 16 July 2015, ClientEarth and PAN Europe v EFSA (C‑615/13 P, EU:C:2015:489), that, where information made it possible to connect to one particular expert or another a particular comment, it concerned identified natural persons and, accordingly, constituted a set of personal data, within the meaning of Article 3(3) of Regulation 2018/1725. Moreover, the Court of Justice stated that the fact that that information was provided as part of a professional activity did not mean that it could not be characterised as a set of personal data (judgment of 16 July 2015, ClientEarth and PAN Europe v EFSA, C‑615/13 P, EU:C:2015:489, paragraph 30).
158    In the present case, the information identified by the SRB as being covered by that exception is contained in the notary minutes and the updated offer and is the private data of the notary public and the officials of Banka Slovenije (Bank of Slovenia) who attended the opening of the written offers in the context of the sale of Sberbank Slovenia, the private data of the signatories and the addresses of the invitations, the private data of the signatories and the addresses of the reply of Nova KBM d.d., the private data of the signatories and the addresses of the offer from an institution that participated in the bidding process, and the private data of the signatories and the addresses of the offer from Nova Ljubljanska Banka d.d.
159    In the light of the information concerned and having regard to the case-law set out in paragraph 157 above, it must be concluded that the Appeal Panel rightly accepted the SRB’s finding that that information was covered by the exception provided for in Article 4(1)(b) of Regulation No 1049/2001, relating to the protection of privacy and the integrity of the individual.
160    Consequently, all the applicant’s arguments and, therefore, the pleas alleging misapplication of the exception relating to the protection of privacy and the integrity of the individual must be rejected.
The pleas alleging implicit misapplication of other grounds for refusal and concealment of the real grounds for refusal
161    In essence, the applicant argues, first, that the second confirmatory decision is implicitly based on various additional grounds for refusal justifying non-disclosure of the requested information, namely Article 88 of Regulation No 806/2014 and Article 41 of the Charter, in breach of Regulation No 1049/2001.
162    Second, before the Appeal Panel, the applicant claimed, first, that the SRB had incorrectly relied on grounds falling outside the scope of Regulation No 1049/2001, in particular on Article 88 of Regulation No 806/2014, in order to refuse access to certain information and, second, that it intentionally invoked the wrong ground of refusal in order to avoid relying on the exception relating to the protection of the decision-making process provided for in Article 4(3) of Regulation No 1049/2001. In that context, the applicant claims that the Appeal Panel rejected those arguments without providing sufficient reasoning. Moreover, the applicant submits that the Appeal Panel failed to comply with the guidance which it has itself established in its first decision, according to which Article 88 of Regulation No 806/2014 was not a basis on which the SRB could rely in that context. The Appeal Panel wrongly refrained from criticising the SRB for failing to comply with its first decision in that regard. According to the applicant, the Appeal Panel also erred in not examining the fact that the SRB relied on confidentiality aspects in connection with the requests for access to the file pursuant to Article 41 of the Charter and Article 90(4) of Regulation No 806/2014 as an additional unwritten ground for not disclosing the documents. Furthermore, the applicant takes the view that the Appeal Panel further erred in failing to address its arguments that the SRB sought to avoid a critical review of its decision-making process.
163    The SRB disputes that line of argument.
164    In the first place, it is clear from the second confirmatory decision that the SRB recalled its obligations under Article 88 of Regulation No 806/2014 and Article 41 of the Charter. In that regard, even if, as the applicant claims, the SRB implicitly and wrongly applied those two provisions, it is apparent, in the present case, that the refusal of access to the information at issue is justified in law under Article 4 of Regulation No 1049/2001. The applicant’s argument in that regard is therefore ineffective, since, even if it were well founded, it could not lead to the annulment of the second confirmatory decision.
165    In the second place, first of all, as the SRB rightly notes, the Appeal Panel stated, in paragraph 137 of its second decision, that the SRB had referred to Article 88 of Regulation No 806/2014 in the context of the consultations with third parties and as a modulating factor in the assessment of the exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State in connection with the disclosure of information originating from the prudential supervisor, but not as an independent ground for refusal of access. Contrary to what the applicant claims, that reasoning is sufficient to enable the applicant to understand it and to challenge its validity.
166    In paragraph 138 of its second decision, the Appeal Panel found that the applicant’s claim that the SRB had sought to avoid relying on the exception provided for in Article 4(3) of Regulation No 1049/2001 was unsubstantiated. In that regard, the Appeal Panel rightly observed that there was no evidence that the SRB had relied on some exceptions in order to avoid relying on a different exception. Contrary to what the applicant claims, that reasoning is sufficient to enable the applicant to understand it and to challenge its validity.
167    Next, since the SRB did not rely on Article 88 of Regulation No 806/2014 as an independent ground for refusal of access, the applicant cannot criticise the Appeal Panel for not finding that the SRB had failed to comply with its first decision.
168    Moreover, although the Appeal Panel did not expressly respond to the applicant’s arguments that the SRB had relied on confidentiality aspects in connection with the requests for access to the file pursuant to Article 41 of the Charter and Article 90(4) of Regulation No 806/2014 as an additional ground for refusing the requested disclosure, it must be held that the Appeal Panel provided sufficient reasoning which set out the facts and legal considerations having decisive importance in the context of that decision, thereby complying with its obligation to state reasons.
169    Last, it must be stated that the Appeal Panel rightly considered, in paragraph 138 of its second decision, that there was no evidence that the SRB had sought to avoid a critical review of its decision-making process.
170    Consequently, the pleas alleging implicit misapplication of other grounds for refusal and concealment of the real grounds for refusal must be rejected.
The pleas based on the conditions for consultations with third parties
171    The applicant submits that the SRB wrongly relied on consultations with third parties to object to the disclosure of information received by or concerning those third parties. Moreover, the SRB wrongly relied on exceptions contained in other legal regimes, namely Decision 2004/258. Thus, contrary to what the Appeal Panel suggests, the SRB did not carry out its own assessment.
172    The SRB disputes that line of argument.
173    In the first place, the applicant is wrong to argue that, in order to object to the disclosure of information originating from or concerning third parties, the SRB merely relied on the objections raised by those third parties, rather than itself examining whether one of the exceptions provided for in Article 4 of Regulation No 1049/2001 was applicable.
174    In that regard, the second confirmatory decision states that the documents in question contain information originating from or concerning third parties and that, therefore, the SRB consulted those third parties, including the ECB, Sberbank Slovenia and the institutions participating in the marketing process, on the application of the exceptions to the access to documents provided for in Regulation No 1049/2001.
175    The second decision of the Appeal Panel rejected the plea alleging that the SRB had attempted to use the consultations with third parties as an additional ground for non-disclosure. According to the Appeal Panel, the SRB did not consider that any objection by third parties to the disclosure of information originating from or concerning them constituted, per se, a ground for refusal of access and should therefore be accepted. On the contrary, the SRB stated that it alone was responsible for the decision not to grant full access to a document.
176    The assessment of the Appeal Panel summarised in paragraph 175 above is free from any error.
177    In its second confirmatory decision, the SRB refers to the objections which the consulted persons raised to the disclosure of the information at issue only after finding that that information was, inter alia, covered by the first indent of Article 4(2) of Regulation No 1049/2001, as regards, for example, information relating to the deterioration of Sberbank Slovenia’s liquidity position or the marketing process, or by Article 4(1)(b) of Regulation No 1049/2001, as regards personal data.
178    In particular, the SRB is careful to state that it is ‘also in [the] light of the ECB’s feedback’, and therefore not solely in the light of that feedback, that it decided not to disclose certain information, or that it ‘has duly considered the ECB’s feedback and [that it] concurs with [that institution’s] assessment’, and therefore that it does not regard itself as bound by the ECB’s assessment, but considers it necessary to state that it concurs with the ECB’s conclusions. With regard to the redaction of information relating to the marketing process, the SRB states that it was both ‘in [the] light’ of the comments of the institutions concerned and of its obligations under EU law and the absence of an overriding public interest in disclosure that it concluded that certain information should remain confidential.
179    Accordingly, the SRB did not merely rely exclusively on the objections of third parties or make those objections a ground for non-disclosure per se, in addition to those provided for in Article 4 of Regulation No 1049/2001, but itself examined, in the light of that article, whether or not the information originating from or concerning third parties should be redacted from the documents in question.
180    In the second place, the applicant is wrong to argue that the SRB relied on grounds for refusal of access provided for not by Regulation No 1049/2001 but by Decision 2004/258.
181    In that regard, as set out in paragraph 126 above, the second confirmatory decision states that the SRB consulted the ECB, which took the view that disclosure of information on Sberbank Slovenia’s liquidity position would undermine the protection of commercial interests guaranteed by Article 4(2) of Decision 2004/258 and the confidentiality of information that is protected as such under EU law guaranteed by Article 4(1)(c) of Decision 2004/258. However, the SRB did not rely on the provisions of Decision 2004/258 in order to redact the information at issue. Accordingly, the Appeal Panel was not able, in its second decision, to accept that the SRB relies on those provisions, as was noted in paragraph 127 above.
182    Consequently, the pleas based on consultations with third parties must be rejected.
The pleas alleging an erroneous approach as regards the redactions of each specific document to which the applicant had been granted partial access and the specific discussions relating to those redactions
183    First, the applicant submits, in essence, that the SRB did not justify the redactions of each specific document to which the applicant was partially granted access, namely the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia; the SRB’s response to that assessment; the Commission’s decision of 1 March 2022 endorsing the resolution scheme for Sberbank Slovenia; the minutes of the SRB meetings held on 26, 27 and 28 February and 1 March 2022; the minutes of the meetings of the European Resolution College held on 26 and 27 February and 1 March 2022 and the email exchanges with information on the assessment and resolution strategy; and the notary minutes and the updated offer.
184    Second, the applicant argues that the Appeal Panel addressed its argument that the requested documents had been redacted in such a way that the disclosed parts were deprived of all significant content from the perspective of the reasoning, instead of addressing its substance. Before the Appeal Panel, the applicant criticised the SRB for failing to comply with the guidance set out in the Appeal Panel’s first decision, although that decision required the SRB to disclose at least the main percentages showing how Sberbank Slovenia’s liquidity situation had deteriorated in the days preceding the resolution. By failing to comply with that guidance, the SRB allegedly infringed Article 85(8) of Regulation No 806/2014.
185    The SRB disputes that line of argument.
186    In the first place, with regard to the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia, the applicant criticises the SRB for failing to set out any ground for non-disclosure of that document and for merely referring to the ECB.
187    It is true that it is apparent from the second confirmatory decision that the SRB referred to the version of the ‘failing or likely to fail’ assessment of Sberbank Slovenia published on the ECB’s website. However, the fact that the non-confidential version of that assessment was published by the ECB – its author – on the ECB’s website guaranteed that the applicant had access to the authenticated version of that document (see, to that effect, judgment of 28 September 2022, Agrofert v Parliament, T‑174/21, EU:T:2022:586, paragraphs 58 and 59).
188    Moreover, in the present case, the ECB published the non-confidential version of the ‘failing or likely to fail’ assessment of Sberbank Slovenia on 10 June 2022, that is to say, more than a year before the adoption of the second confirmatory decision. On 30 June 2022, the applicant submitted a request to the ECB for access to that assessment, followed by a confirmatory application. On 21 September 2022, the ECB adopted a confirmatory decision refusing access to the redacted information in that assessment. Following that refusal, the applicant brought an action before the General Court against that decision, registered as Case T‑790/22. By judgment of 6 November 2024, MeSoFa v ECB (T‑790/22, not published, EU:T:2024:783), the Court dismissed the action. It follows that the applicant was able to ascertain the reasons for the redaction of certain information from that assessment and to challenge them.
189    In those circumstances, the applicant cannot criticise the SRB for informing the applicant that it could find the ‘failing or likely to fail’ assessment of Sberbank Slovenia on the ECB’s website.
190    As regards the SRB’s response to the ECB’s ‘failing or likely to fail’ assessment of Sberbank Slovenia, the minutes of the SRB meetings held on 26, 27 and 28 February and 1 March 2022, the minutes of the meetings of the European Resolution College held on 26 and 27 February and 1 March 2022 and the email exchanges with information on the assessment and resolution strategy, the applicant claims that the SRB wrongly took the view that they were internal preparatory documents for the purposes of applying the exception relating to the protection of the decision-making process provided for in Article 4(3) of Regulation No 1049/2001. In so doing, the SRB also reiterated the position which the Appeal Panel had rejected in its first decision.
191    First of all, the Appeal Panel did not rule on those documents since, as is apparent from paragraph 95 above, the appeal before it was limited to Decision SRB/EES/2022/18, the notary minutes and the updated offer. The SRB was therefore unable, in any event, to express a position contrary to that of the Appeal Panel.
192    Next, it should be noted that, the resolution scheme for Sberbank Slovenia having been adopted, it is only for opinions for internal use as part of deliberations and preliminary consultations within the SRB that the second subparagraph of Article 4(3) of Regulation No 1049/2001 allows access to be refused, where their disclosure would seriously undermine the decision-making process of that institution or agency.
193    In the present case, a reading of the confidential version of those documents shows that they are indeed opinions for internal use as part of deliberations and preliminary consultations.
194    As the SRB noted in its second confirmatory decision, its position on the situation of Sberbank Slovenia was set out in Decisions SRB/EES/2022/18 and SRB/EES/2022/20, the public versions of which are available on its website. In the light of the content of the documents in question, namely the SRB’s preliminary analysis intended for the ECB, but also the detailed content of each opinion of each person involved on every issue which was arising, day after day, in relation to the situation of Sberbank Slovenia, the SRB rightly took the view that their disclosure would specifically and effectively undermine those two decisions even after their adoption, in so far as the disclosure of that information could lead banks to speculate on those elements of the European Union’s financial and economic policy and could thus undermine its effectiveness. Since those considerations were not hypothetical but reasonably foreseeable, the SRB could also take the view that disclosure would seriously undermine its decision-making process in future cases.
195    In that regard, the applicant merely maintains that the SRB’s explanation is not sufficiently specific. However, the considerations relied on by the SRB were sufficient to justify the refusal of access to those documents and to understand the reasons why their disclosure was likely to seriously undermine the SRB’s decision-making process, even though the resolution procedure concerning Sberbank Slovenia had been closed.
196    Last, the existence of an overriding public interest is not established in the present case. Pursuant to the second subparagraph of Article 4(3) of Regulation No 1049/2001, the exception enshrined therein is not applicable if there is an overriding public interest in the disclosure of the documents in question. However, the applicant did not rely, in the initial request for access or in the confirmatory application, on the existence of an overriding public interest as such. It merely referred, in the confirmatory application, to the need to access the documents for the purpose of legal proceedings, which constitutes a private interest.
197    In those circumstances, the applicant’s arguments concerning those documents must be rejected.
198    With regard to the Commission’s decision of 1 March 2022 endorsing the resolution scheme for Sberbank Slovenia, the applicant criticises the SRB for referring to the website of the Official Journal of the European Union.
199    In the present case, the disclosure of that decision results from its publication in the Official Journal (OJ 2022 L 164, p. 63). That publication guarantees that the applicant had access to the authenticated version of the document.
200    Since the applicant had access to that document, the second confirmatory decision does not adversely affect it in that regard.
201    As regards Decision SRB/EES/2022/18, the minutes and the updated offer, the non-disclosure of the information redacted from those documents is, as is apparent from paragraphs 90 to 101 and 129 to 150 above, sufficiently reasoned and justified under the first indent of Article 4(2) of Regulation No 1049/2001.
202    It follows from all of the foregoing that the applicant’s arguments concerning the second confirmatory decision must be rejected.
203    In the second place, as regards the second decision of the Appeal Panel, even if it were true that, in that decision, the Appeal Panel did not address, under the heading ‘Eleventh ground of appeal’ (paragraphs 143 to 146 of that decision), the substance of the applicant’s argument that the requested documents had been redacted in such a way that the disclosed parts had been deprived of significant content, it must be stated, as the SRB notes, that that argument was actually addressed in paragraphs 91 to 134 of that decision.
204    Moreover, with regard to the applicant’s argument that the SRB had not sufficiently explained how the exception relied on related to each part which had not been disclosed, the Appeal Panel considered, in paragraph 145 of its second decision, that the SRB had complied with the guidance which the Appeal Panel had provided in its first decision. According to the Appeal Panel, by including, in the second confirmatory decision, additional grounds concerning the exception relating to the protection of commercial interests, provided for in Article 4(2) of Regulation No 1049/2001, the SRB provided detailed reasons why it refused to disclose certain parts of the documents in question. Therefore, contrary to what the applicant claims, there was no need for the Appeal Panel to assert that the SRB had infringed Article 85(8) of Regulation No 806/2014.
205    Consequently, the pleas alleging an erroneous approach as regards the redactions of each specific document to which the applicant had been granted partial access and the specific discussions relating to those redactions must be rejected.
The pleas alleging breach of the applicant’s procedural rights
206    First, the applicant argues, in essence, that the SRB infringed its rights of defence under Article 41 of the Charter, in that the SRB did not grant the applicant access to its file and that, unlike other persons, the applicant was not consulted by the SRB before it adopted the second confirmatory decision.
207    Second, the applicant criticises the Appeal Panel for merely stating that it has no jurisdiction to rule on a request for access to the file. The applicant reaffirms that the Appeal Panel erred in accepting that the SRB could amend its statement of reasons. Moreover, the Appeal Panel failed to examine the case-law which the applicant provided to support its position that a statement of reasons could not be subsequently amended, changed or supplemented.
208    The SRB disputes that line of argument.
209    In the first place, as regards access to the file relating to the procedure for access to documents, it should be noted that information which has not been disclosed by the SRB on the ground that it is confidential and which forms the subject matter of such a procedure does not have to be communicated to the applicant during that procedure. If that were not the case, any procedure for public access to documents would become devoid of purpose as a result of the communication of the information and documents requested (see, to that effect, judgment of 6 November 2024, MeSoFa v ECB, T‑790/22, not published, EU:T:2024:783, paragraph 104).
210    As regards the right to be heard, it is true that the SRB consulted other persons before adopting the second confirmatory decision. Those consultations took place in accordance with Article 4(4) of Regulation No 1049/2001, which provides that, as regards third-party documents, the institution concerned is to consult the third party with a view to assessing whether an exception provided for in Article 4(1) or (2) of that regulation is applicable, unless it is clear that the document should or should not be disclosed. However, in the present case, none of the documents relating to the request for access originated from the applicant.
211    Moreover, it is appropriate to note that provision is made in Regulation No 1049/2001 so that, following an initial refusal on the part of the institution or agency to which a request for access has been made, the applicant for access may make a confirmatory application, pursuant to Article 7(2) of that regulation. On that occasion, that applicant has an opportunity to convey his or her views on the position, if any, adopted by the institution or agency. In so far as the applicant completed those steps, it must be considered that it had the opportunity to challenge the SRB’s refusal of access. In addition to those steps, the applicant also, pursuant to Article 85(3) of Regulation No 806/2014, challenged the first confirmatory decision before the Appeal Panel. The Appeal Panel decided to remit the case to the SRB, which led the SRB to adopt the second confirmatory decision. In that decision, the SRB clearly stated that it had taken into account the applicant’s observations in the confirmatory application and the Appeal Panel’s guidance. The applicant’s claim that the SRB infringed its right to be heard, in that the SRB failed to consult it before adopting the second confirmatory decision, is therefore not convincing.
212    In the second place, it should first be noted that the Appeal Panel, in its second decision, stated that, in accordance with Article 85(3) of Regulation No 806/2014, it had no jurisdiction to hear appeals against a decision of the SRB referred to in Article 90(4) of that regulation, concerning the right of access to the file, and could therefore neither confirm nor remit a refusal of access to the file by the SRB. Moreover, the Appeal Panel took the view that if, in the course of the proceedings before it, an appellant could get access, on the basis of Article 41 of the Charter, to the confidential version of the documents to which it had requested access under the rules governing public access to documents, before a decision on the legality of the confirmatory decision was taken by the Appeal Panel, the decision of the Appeal Panel concerning that confirmatory decision would be made irrelevant and would become devoid of purpose.
213    In that regard, the Court has already held that the Appeal Panel does not have jurisdiction to hear and determine an appeal against a decision refusing access to the file on the basis of Article 90(4) of Regulation No 806/2014 (judgment of 20 December 2023, OCU v SRB, T‑496/18, not published, EU:T:2023:857, paragraph 34).
214    For the reasons set out by the Appeal Panel and reproduced in paragraph 212 above, the applicant cannot criticise the Appeal Panel, in the context of an appeal against a confirmatory decision concerning public access to documents on the basis of Regulation No 1049/2001, for not recognising the applicant’s right of access to the file on the basis of Article 41(2)(b) of the Charter (see, to that effect, judgment of 20 December 2023, OCU v SRB, T‑496/18, not published, EU:T:2023:857, paragraphs 30 to 38).
215    Next, for the reasons referred to in paragraphs 110 and 111 above, the SRB, following a remittal decision by the Appeal Panel, is not required to retain the legal basis adopted in support of its first confirmatory decision.
216    Last, even if the Appeal Panel did not examine the case-law provided by the applicant, a reading of the second decision of the Appeal Panel shows that the Appeal Panel set out the facts and legal considerations having decisive importance in the scheme of that decision and that it therefore complied with its obligation to state reasons in accordance with the case-law set out in paragraph 92 above.
217    Consequently, the pleas alleging breach of the applicant’s procedural rights must be rejected.
The pleas alleging breach of the applicant’s rights as a result of the non-application of rules on disclosure other than those laid down by Regulation No 1049/2001
218    First, the applicant claims that the second confirmatory decision is unlawful, since the SRB did not apply any rules other than those laid down by Regulation No 1049/2001, even though the request for access was not restricted and included, in particular, Article 41 of the Charter.
219    Second, the applicant criticises the Appeal Panel for failing to address that argument and for merely stating that the relevant rules were not easy to identify.
220    The SRB questions the admissibility of those pleas on the basis that they are particularly vague and disputes, in any event, the merits of that line of argument.
221    In the first place, with regard to the second confirmatory decision, the applicant claims that that decision is unlawful, since no rules other than the provisions of Regulation No 1049/2001 were applied. However, with the exception of a reference to Article 41 of the Charter, the applicant does not identify the other rules which, in its view, the SRB should have examined. As regards Article 41 of the Charter, the applicant does not specify whether it is relying on a breach of its right of access to the file, the administration’s obligation to state reasons or another right laid down by that provision.
222    In those circumstances, it has not been established that the second confirmatory decision is unlawful on the ground that the SRB did not apply any rules other than those laid down by Regulation No 1049/2001.
223    In the second place, the applicant also claimed before the Appeal Panel that the second confirmatory decision was unlawful, since no rules other than the provisions of Regulation No 1049/2001 had been applied. It added that, where the Appeal Panel has jurisdiction to review an act of the SRB, it must apply any relevant rules.
224    In its second decision, the Appeal Panel noted, in essence, that, in the absence of further details from the applicant, it was difficult to identify the rules which the SRB should have applied. According to that decision, fundamental rights, such as Article 41 or Article 47 of the Charter, were duly taken into account by the Appeal Panel in its findings, as were essential procedural requirements, such as the obligation to state reasons.
225    In that regard, it should be noted that respect for the right of access to the file, enshrined in Article 41 of the Charter, is the subject matter of paragraphs 148 and 149 of the second decision of the Appeal Panel, in which the Appeal Panel states that it has no jurisdiction in that regard. The right to effective judicial protection, enshrined in Article 47 of the Charter, is referred to in paragraph 55 of that decision, in the context of the analysis of the admissibility of the appeal. Last, compliance by the SRB with its obligation to state reasons is examined, in particular, in paragraphs 86 to 90 and 143 to 146 of the second decision of the Appeal Panel, in which the latter rejects two grounds of appeal alleging that insufficient reasons were given for the second confirmatory decision.
226    Thus, contrary to what the applicant claims, the Appeal Panel not only addressed its argument and responded to it, but also applied rules other than those derived from Regulation No 1049/2001.
227    Moreover, the applicant’s complaint against the SRB is, as is apparent from paragraphs 221 and 222 above, too general and insufficiently substantiated to be successful, so that the Appeal Panel cannot be criticised for rejecting that argument.
228    Consequently, the pleas alleging breach of the applicant’s rights as a result of the non-application of rules on disclosure other than those laid down by Regulation No 1049/2001 must be rejected.
229    In the light of the foregoing, the claims directed against the second confirmatory decision and the second decision of the Appeal Panel must be rejected without there being any need to examine the plea of inadmissibility raised by the SRB in its defence with respect to them.
Costs
230    Pursuant to 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 should be ordered to pay the costs in accordance with the form of order sought by the SRB.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Declares that there is no longer any need to adjudicate on the claims seeking annulment of the decision of the Single Resolution Board (SRB) of 19 August 2022 concerning MeSoFa Vermögensverwaltungs AG’s request for access to documents, the decision of the SRB Appeal Panel of 8 March 2023 in Case 6/2022 and the SRB’s negative reply within the meaning of Article 8(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;
2.      Dismisses the action as to the remainder;
3.      Orders MeSoFa Vermögensverwaltungs to pay the costs.
Kowalik-Bańczyk
Buttigieg
Hesse
Delivered in open court in Luxembourg on 15 October 2025.
V. Di Bucci
M. van der Woude
Registrar
President
Table of contents
Background to the dispute and events subsequent to the bringing of the action
Forms of order sought
Law
The first confirmatory decision and the first decision of the Appeal Panel
The implied decision
The second confirmatory decision and the second decision of the Appeal Panel
The illegality of Article 20 of the Rules of Procedure of the Appeal Panel
The illegality of Article 21(4) of the Rules of Procedure of the Appeal Panel
The illegality of the Appeal Panel’s interpretation of Article 85(8) and Article 86(1) of Regulation No 806/2014
The pleas based on the fact that a period of nine and a half months had elapsed between the first decision of the Appeal Panel and the second confirmatory decision and a period of two years and one month had elapsed between the request for access and the second decision of the Appeal Panel
The pleas based on infringement of the alleged obligation to adopt an amended decision
The pleas alleging failure to identify and disclose the other relevant documents
The pleas alleging a failure to state reasons and unlawful reliance on new grounds in support of the refusal of access
– Second confirmatory decision
– Second decision of the Appeal Panel
The pleas alleging misapplication of the exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State
The pleas alleging misapplication of the exception relating to the protection of commercial interests
The pleas alleging misapplication of the exception relating to the protection of privacy and the integrity of the individual
The pleas alleging implicit misapplication of other grounds for refusal and concealment of the real grounds for refusal
The pleas based on the conditions for consultations with third parties
The pleas alleging an erroneous approach as regards the redactions of each specific document to which the applicant had been granted partial access and the specific discussions relating to those redactions
The pleas alleging breach of the applicant’s procedural rights
The pleas alleging breach of the applicant’s rights as a result of the non-application of rules on disclosure other than those laid down by Regulation No 1049/2001
Costs
*      Language of the case: English.