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 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 the purpose of inspections, investigations and audits – Third indent of Article 4(2) of Regulation No 1049/2001 )
In Case T‑290/23,
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 28 July 2022 with respect to the applicant’s request for access to documents relating to the adoption of a resolution scheme for Sberbank d.d. (‘Sberbank Croatia’) by the SRB (‘the first confirmatory decision’), the decision of the SRB Appeal Panel (‘the Appeal Panel’) of 8 March 2023 in Case
4/2022 (‘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 Croatia and Sberbank banka d.d., 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 initially submitted on 10 March 2022 to the Hrvatska Narodna Banka (Croatian National Bank) and subsequently registered by the SRB on 22 April 2022, the applicant requested access to documents relating to the resolution of Sberbank Croatia. The request for access forwarded to the SRB concerned, in particular, access to Decision SRB/EES/2022/17, by which it had ordered the suspension of payment and delivery obligations in respect of Sberbank Croatia (‘Decision SRB/EES/2022/17’), and Decision SRB/EES/2022/21 (‘Decision SRB/EES/2022/21’), by which it had decided to place Sberbank Croatia under a resolution procedure.
4        By its initial decision of 9 June 2022, the SRB granted the applicant partial access to Decision SRB/EES/2022/17 and to Decision SRB/EES/2022/21, including to its annexes, namely valuations 1 and 2. The SRB then provided the applicant with a non-confidential version of those decisions.
5        Pursuant to Article 7(2) of Regulation No 1049/2001, on 30 June 2022, the applicant submitted a confirmatory application to the SRB. By that application, the applicant, inter alia, requested the SRB, as regards Decision SRB/EES/2022/17, to provide it ‘especially with … information pertaining to determining [Sberbank Croatia] as failing or likely to fail; justification of lack of possibility to utilise alternative methods; and justification pertaining to public interest in [the] Republic of Croatia’, and, as regards Decision SRB/EES/2022/21, ‘especially with … information pertaining to valuations of [Sberbank Croatia]’.
6        On 28 July 2022, by the first confirmatory decision, the SRB upheld the initial decision.
7        On 7 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.
8        On 8 March 2023, the Appeal Panel adopted its first decision, under case number 4/2022. In that decision, the Appeal Panel considered, in particular, that the statement of reasons in the first confirmatory decision was insufficient in that the SRB had not properly and specifically justified the refusal of public access to several parts of Decision SRB/EES/2022/17 and of Decision SRB/EES/2022/21, including valuations 1 and 2. However, the Appeal Panel stated that it could accept that the redaction of certain information from Decision SRB/EES/2022/21 and from valuation 2 was justified in order to protect the commercial interests of third parties. The Appeal Panel also stated that, while the SRB was right to redact certain information, it had erroneously redacted other information in the non-confidential versions of Decisions SRB/EES/2022/17 and SRB/EES/2022/21, including in valuations 1 and 2, under cover of applying the exception provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001. Consequently, the Appeal Panel remitted the case to the SRB, in accordance with Article 85(8) of Regulation No 806/2014.
9        By the second confirmatory decision, on 21 December 2023, the SRB took the view that, taking into account the Appeal Panel’s guidance and in the light of the responses received during the consultation with stakeholders, as well as the time that had elapsed since the resolution, access to other parts of the requested documents could be granted. However, according to that decision, the remainder of the redacted information remained covered either by the exceptions provided for in the fourth indent of Article 4(1)(a) and in the first indent of Article 4(2) of Regulation No 1049/2001, or by those two exceptions and by the exception, provided for in the third indent of Article 4(2) of that regulation, relating to the protection of the purpose of investigations.
10      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.
11      On 22 May 2024, the Appeal Panel adopted its second decision, under case number 1/2024, by which it confirmed the second confirmatory decision. In particular, the Appeal Panel first declared the applicant’s arguments admissible. Next, although the Appeal Panel agreed with the applicant that the SRB had wrongly applied the exception provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 to justify the redaction of certain information concerning, in particular, the deterioration of Sberbank Croatia’s liquidity position, the Appeal Panel recognised that, in order for the refusal of access to be well founded, it was sufficient for the new grounds put forward by the SRB in support of its decision not to be erroneous. In that regard, the Appeal Panel considered, with regard to the exception relating to the protection of commercial interests provided for in the first indent of Article 4(2) of Regulation No 1049/2001, that, in accordance with its guidance, the SRB had strengthened the reasoning for its refusal on that basis. In the light of that new reasoning, the Appeal Panel considered that there was no need to accept the applicant’s arguments. With regard to the exception relating to the protection of the purpose of investigations provided for in the third indent of Article 4(2) of Regulation No 1049/2001, the Appeal Panel accepted the grounds put forward by the SRB. It therefore did not uphold the applicant’s arguments on that point.
Forms of order sought
12      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.
13      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
14      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).
15      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.
16      Accordingly, it is true that the applicant has still not been granted access to all the information to which it had requested access.
17      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.
18      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).
19      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
20      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.
21      The SRB disputes that line of argument.
22      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 Decisions SRB/EES/2022/17 and SRB/EES/2022/21 and, as to the remainder, expressly rejected the applicant’s confirmatory application.
23      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).
24      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.
25      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.
26      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.
27      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
28      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).
29      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.
30      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.
31      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 two months 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 the purpose of inspections, investigations and audits;
–        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.
32      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
33      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.
34      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.’
35      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.
36      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.
37      The SRB disputes that line of argument.
38      The parties therefore do not agree on the starting point of the period provided for by Article 85(4) of Regulation No 806/2014.
39      The wording of that provision does not, in itself, support a clear interpretation of that starting point.
40      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).
41      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.
42      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).
43      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.
44      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.
45      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.
46      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
47      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.
48      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.’
49      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.
50      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).
51      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.
52      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.
53      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.
54      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
55      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.
56      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.
57      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.
58      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 two months had elapsed between the request for access and the second decision of the Appeal Panel
59      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.
60      The SRB disputes that line of argument.
61      In the present case, the request for access was initially submitted on 10 March 2022 to the Croatian National Bank but was registered on 22 April 2022 by the SRB. The second decision of the Appeal Panel was adopted on 22 May 2024, which means that a little more than two years elapsed between the SRB’s registration of the request for access and the second decision of the Appeal Panel. 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 therefore elapsed between those two decisions.
62      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.
63      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.
64      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).
65      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).
66      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
67      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.
68      The SRB disputes that line of argument.
69      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.
70      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).
71      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.
72      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
73      First, the applicant submits that, initially, the request for access concerned not only Decisions SRB/EES/2022/17 and SRB/EES/2022/21, but also all other relevant documents relating to the actions of the European Central Bank (ECB)
and the SRB in relation to Sberbank Croatia. The same applies to the confirmatory application. Accordingly, the SRB failed to identify, in the second confirmatory decision, the other documents falling within the scope of the request for access. According to the applicant, 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 Croatia 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.
74      Second, the applicant criticises the Appeal Panel for having taken the view that the applicant had restricted the scope of the request for access in its confirmatory application.
75      The SRB disputes that line of argument.
76      In the present case, it must be noted, as the Appeal Panel observed, that, in the confirmatory application, the applicant stated as follows, under heading C, entitled ‘Information requested’:
‘Without prejudice to any future requests, at this point [the applicant] requests [the] SRB to reconsider [its] position and provide [it] with the following documents in their non-redacted version:
–        [Decision SRB/EES/2022/17], especially with respect to information pertaining to determining [Sberbank Croatia] as failing or likely to fail; justification of lack of possibility to utilise alternative methods; and justification pertaining to public interest in [the] Republic of Croatia; and
–        [Decision SRB/EES/2022/21], especially with respect to information pertaining to
valuations [of Sberbank Croatia].’
77      Since it is unambiguously clear from the part of the confirmatory application which deals with the identification of the requested information that the request for access covered, at that time, only Decisions SRB/EES/2022/17 and SRB/EES/2022/21, it has not been established that the SRB failed to identify other relevant documents or that the Appeal Panel was wrong to consider that that request for access was restricted to those two documents.
78      In those circumstances, the applicant cannot criticise the SRB for not having expressly stated the reasons why there were no other documents falling within the scope of the applicant’s request for access or claim that the SRB infringed Article 296 TFEU and Article 41 of the Charter.
79      The applicant’s other arguments are not such as to alter that finding.
80      While, in the confirmatory application, under heading A, entitled ‘Legal basis’, the applicant stated that it was requesting the SRB to review its position and provide the applicant with complete and unredacted information relating to the resolution procedure opened in respect of, inter alia, Sberbank Croatia, that statement cannot be regarded as sufficiently precise to enable the SRB to identify the information requested. That is particularly true since, contrary to what the applicant claims, the part of the confirmatory application under heading C, entitled ‘Information requested’, is, by contrast, express and unequivocal.
81      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
82      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.
83      The SRB disputes that line of argument.
84      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).
85      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).
86      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 which the Croatian National Bank forwarded to the SRB. It states that the documents falling within the scope of that request are Decision SRB/EES/2022/17 and Decision SRB/EES/2022/21.
87      In a second section, the SRB sets out its preliminary observations. The SRB states that, for the purposes of its assessment, 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 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.
88      In a third section, the SRB refers to the exceptions provided for in Article 4 of Regulation No 1049/2001, which it deems to be relevant in the present case.
89      The fourth section of the second confirmatory decision contains more detailed explanations concerning the redactions in the two documents in question. The SRB explains how the disclosure of the information at issue could undermine the interest protected by the exception relied on.
90      In a fifth 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.
91      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.
92      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
93      First of all, the applicant argues that the second decision of the Appeal Panel is not sufficiently reasoned so as to determine whether the statement of reasons in the second confirmatory decision was itself sufficient. The Appeal Panel merely stated that the SRB had provided further explanations in the second confirmatory decision. Next, the applicant states that, in its first decision, the Appeal Panel had considered that the SRB’s reasoning was not plausible. The applicant submits that the SRB’s concern lies in the fact that the entity concerned was in a sound financial situation and that, as a result, other banks in an equally sound financial situation could have feared equally strict treatment. However, according to the applicant, the disclosure of positive information cannot have a negative impact on the entity concerned. The reasoning put forward by the SRB is therefore merely a pretext. Last, the applicant takes the view that the Appeal Panel failed to find that the SRB had unlawfully relied on new grounds in support of the refusal of access.
94      The SRB disputes that line of argument.
95      First, Article 85(9) of Regulation No 806/2014 provides that ‘the decisions of the Appeal Panel shall be reasoned’.
96      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 parts of the requested documents had to be 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 for each specific document and each part of those documents. The Appeal Panel found, inter alia, in paragraph 83 of its second decision, that the new section referred to the specific redactions and to their justification under the relevant exceptions provided for by Regulation No 1049/2001.
97      It follows from the foregoing that the Appeal Panel provided sufficient reasons as to why it considered that the second confirmatory decision was reasoned. Therefore, the applicant cannot maintain that it was unable to understand those reasons and that the Appeal Panel had infringed its obligation to state reasons.
98      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).
99      Third, in paragraph 122 of its second decision, the Appeal Panel noted that the Courts of the European Union had already accepted that, at the stage of the confirmatory reply to a request for access, an institution could modify the exceptions relied on at the stage of the initial reply to that request, as was apparent from paragraphs 82 to 84 of the judgment of 28 March 2017, Deutsche Telekom v Commission (T‑210/15, EU:T:2017:224). According to the Appeal Panel, the same principle applies when a confirmatory decision is remitted to the SRB by the Appeal Panel for the adoption of an amended confirmatory decision.
100    In the present case, the Appeal Panel correctly noted that it had invited the SRB to amend the reasoning of its confirmatory decision in order to strengthen it and that, in doing so, the SRB had been required to carry out a new assessment of the information to be disclosed in the light of the Appeal Panel’s guidance and a new assessment of the grounds to be set out to justify the remaining redactions. As the Appeal Panel noted, that reassessment could reasonably 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.
101    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).
102    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).
103    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.
104    In the light of the foregoing, those arguments put forward by the applicant regarding the second decision of the Appeal Panel must be rejected.
105    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
106    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.
107    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.
108    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.
109    The SRB disputes that line of argument.
110    In the first place, it should be noted, as the Appeal Panel pointed out, that, in order to refuse access to a document, the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 requires not that the institution or agency which holds the document has competence in matters of financial, monetary or economic policy, but that disclosure of that document would undermine the protection of the financial, monetary or economic policy of the European Union or of a Member State. Therefore, even if the SRB does not have competence in those matters, that could not prevent it from finding that information is covered by the exception provided for in the fourth indent of Article 4(1)(a) of Regulation No 1049/2001 and from refusing to grant access to it.
111    In the second place, it should first be noted, as the Appeal Panel stated, that even if it were wrong or contrary to the guidance of the Appeal Panel to justify the redaction of information, such as that relating to percentages of deposit outflows, liquidity coverage, 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 SRB also justified the redaction of that information on the basis of the first indent of Article 4(2) of that regulation. The Appeal Panel therefore rightly concluded that the applicant’s arguments in that regard were ineffective. The Appeal Panel cannot therefore be criticised for failing to examine or find any infringement of Article 85(8) of Regulation No 806/2014.
112    Next, for the reasons set out in paragraphs 99 to 103 above, the applicant cannot criticise the Appeal Panel for having taken into consideration the new grounds put forward by the SRB and based on the first indent of Article 4(2) of Regulation No 1049/2001.
113    Last, contrary to what the applicant claims, it is apparent from the second confirmatory decision that the SRB relied exclusively on the exceptions provided for in Article 4 of Regulation No 1049/2001 to justify the refusal of access. The second confirmatory decision states that, when consulted in that regard, the ECB explained that certain information relating to the deterioration of Sberbank Croatia’s liquidity position fell, in its view, within the scope of Article 4(1)(c) of Decision 2004/258, which provides that the ECB is to refuse access to a document where
disclosure would undermine the protection of ‘the confidentiality of information that is protected as such under Union law’, read in conjunction with the first indent of Article 4(2) of that decision, which provides for refusal of access for the protection of ‘the commercial interests of a natural or legal person, including intellectual property’. A reading of the second confirmatory decision shows that, after summarising those comments of the ECB, the SRB merely explained that it had taken them into consideration and that it too considered that that information should remain confidential. However, it is not apparent from the wording of the second confirmatory decision that the SRB based its refusal of access on the provisions of Decision 2004/258.
114    Accordingly, the Appeal Panel cannot be regarded as having accepted that the SRB relied on the provisions of Decision 2004/258.
115    Consequently, 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
116    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.
117    As a preliminary point, it should be noted that, in its first decision, the Appeal Panel considered that the redaction of certain information – in particular the reasons for Sberbank Croatia’s difficulties, the main percentages relating to that institution’s liquidity situation, certain assessments made by the ECB or the SRB, the difficulties faced by Sberbank Croatia and the attempts to address them, the number of offers received, information on the effects of the failure of the institution on financial stability in Croatia – under cover of applying 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, was not justified.
118    Following that decision, the SRB granted wider access to the documents in question. However, it took the view that the information concerning the deterioration in Sberbank Croatia’s liquidity position and the related measures was covered, in particular, by the exception relating to the protection of commercial interests provided for in the first indent of Article 4(2) of Regulation No 1049/2001 and could not therefore be disclosed.
119    The applicant claims, first, 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.
120    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.
121    The SRB disputes that line of argument.
122    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).
123    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).
124    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).
125    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).
126    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).
127    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).
128    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 is information relating to Sberbank Croatia’s situation, such as the percentages of deposit outflows, liquidity coverage, counterbalancing capacity and its equity capital, information on the measures examined or adopted in order to remedy the deterioration in that situation and the assessments made in that regard.
129    In that decision, the SRB found that the need to protect the commercial interests of Sberbank Croatia continued to exist, since it remained an active credit institution. In the light of the nature of the redacted information, set out in paragraph 125 above, the SRB rightly took the view that its disclosure could have adversely affected the interests of Sberbank Croatia, even though the resolution scheme for that institution was intended to enable it to continue its activities. 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. The SRB stated that that information went beyond what was publicly available and that it had gathered comments from the parties involved, in particular from Sberbank Croatia.
130    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.
131    Second, the SRB considered in the second confirmatory decision that there was no overriding public interest in disclosure.
132    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 Croatia 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.
133    Contrary to what the applicant claims, it is clear from paragraph 129 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.
134    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.
135    In the second place, the Appeal Panel considered 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 noted, with regard to the redactions justified on the basis of that exception, that the SRB had stated that the interests protected were those of Sberbank Croatia, which continued to carry out banking activities independently of its former shareholder. 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.
136    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.
137    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.
138    Moreover, as is apparent from paragraphs 133 and 134 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.
139    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 the purpose of inspections, investigations and audits
140    The third indent of Article 4(2) of Regulation No 1049/2001 provides that ‘the institutions shall refuse access to a document where disclosure would undermine the protection of … the purpose of inspections, investigations and audits … unless there is an overriding public interest in disclosure.’
141    First, the applicant argues, in essence, that the SRB did not initially rely on the exception relating to the protection of the purpose of inspections, investigations and audits provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and that the SRB could not rectify or supplement the reasoning of its decision following remittal of the case to it, in particular since it had not heard the applicant on that subject. The applicant argues that that exception is not relevant to the valuation procedure, since a valuer is not tasked with any inspection or investigation. Moreover, maintaining the confidentiality of the identity of the valuer is incompatible with Article 20 of Regulation No 806/2014, which provides that the valuation is to be carried out by an independent person. According to the applicant, the wording of the second confirmatory decision suggests that the identity of the valuer must always remain confidential. Furthermore, the applicant submits that there is an overriding public interest in disclosure, in so far as it is the second resolution scheme adopted by the SRB and the use of an independent valuer and the tasks assigned to the valuer are a core part of the way in which the SRB discharges its resolution responsibilities.
142    Second, the applicant submits that the Appeal Panel, in its second decision, erred in accepting that the SRB could rely on the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 as an additional ground. That is apparent, in particular, from the case-law relied on by the applicant before the Appeal Panel, but the latter failed to examine it. According to the applicant, the Appeal Panel also erred in relying on case-law which was not applicable to the situation in which a case is remitted to the SRB with guidance to be followed. The Appeal Panel also failed to give the reasons why it considered that disclosure of the identity and role of the valuer could have a negative impact on the completion of the valuation process.
143    The SRB disputes that line of argument.
144    In the first place, it should be noted that, as is apparent from paragraphs 99 to 103 above, the applicant cannot criticise the SRB for having based its refusal of access to information concerning the valuer on another exception provided for in Article 4 of Regulation No 1049/2001, or criticise the Appeal Panel for having accepted it.
145    Moreover, although the applicant claims that it was not heard before the second confirmatory decision was adopted, it made an application for a confirmatory decision under Article 7(2) of Regulation No 1049/2001. On that occasion, it had the opportunity to convey its views on the SRB’s refusal of access. The second confirmatory decision, although it was adopted following the remittal of the case by the Appeal Panel, is a reply to that confirmatory application for the purposes of Article 8 of Regulation No 1049/2001. In those circumstances, it must be considered that it had the opportunity to challenge the SRB’s refusal of access. Furthermore, in the present case, even though the applicant did not make known its views before the SRB on the latter’s application of the exception relating to the protection of the purpose of inspections, investigations and audits provided for in the third indent of Article 4(2) of Regulation No 1049/2001, it made them known before the Appeal Panel in the context of an appeal brought under Article 85(3) of Regulation No 806/2014, prior to the Appeal Panel’s adoption of its second decision.
146    Next, it should be noted that the exception provided for by the third indent of Article 4(2) of Regulation No 1049/2001, which, like any exception to the right of access to documents, is to be interpreted and applied strictly, is designed not to protect investigations as such, but the purpose of those investigations (judgment of 5 April 2017, France v Commission, T‑344/15, EU:T:2017:250, paragraph 83). The exception therefore applies only if disclosure of the documents in question may endanger the completion of such investigations (judgments of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 109, and of 12 December 2019, Montanari v EEAS, T‑692/18, not published, EU:T:2019:850, paragraph 59).
147    That exception is also applicable to an investigation or inspection report the disclosure of which could jeopardise inspections or investigations which were being conducted, for a reasonable period, on the basis of its content (see, to that effect, judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 47), even if the investigation or inspection which gave rise to the report to which access is requested has been closed. In that situation, it is therefore appropriate to ascertain whether, on the date of the decision refusing access to the documents requested, inspections or investigations were still in progress which could have been jeopardised by the disclosure of such documents, and whether those activities were carried out within a reasonable period (see, to that effect, judgments of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 113, and of 12 December 2019, Montanari v EEAS, T‑692/18, not published, EU:T:2019:850, paragraph 60).
148    In the present case, in the second confirmatory decision, the SRB explained that the valuation procedure, in accordance with Article 20 of Regulation No 806/2014, was a preparatory step necessary for the adoption of the resolution action and was intended, in particular, to allow a fair, prudent and realistic valuation of the assets and liabilities of the entity under resolution. Following the resolution action, the investigation is conducted in the form of a valuation procedure, provided for in Article 20(16) of Regulation No 806/2014, which aims to preserve the fundamental rights of the shareholders and creditors affected. At the time of the adoption of that decision, that valuation procedure, carried out by the independent valuer, was ongoing. In that context, the SRB considered that the identity and role of the independent valuer were covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001. According to the SRB, the disclosure of that information while the valuation procedure under Article 20(16) of Regulation No 806/2014 was ongoing could have a negative impact on the completion of the valuation procedure by undermining the independent valuer’s ability to finalise the valuation independently and free from external pressure. The SRB therefore considered that disclosure of the identity and role of the independent valuer could undermine the purpose of the valuation procedure. Moreover, the SRB stated that it had not identified any overriding public interest in the disclosure of that information.
149    In that regard, it must be noted, as the Appeal Panel observed, that the Court of Justice has stated that the concept of investigation, appearing in the third indent of Article 4(2) of Regulation No 1049/2001, is an autonomous concept of EU law which must be interpreted taking into account, inter alia, its usual meaning as well as the context in which it occurs (see judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraph 45 and the case-law cited).
150    The Court held that, without there being any need to identify an exhaustive definition of ‘investigation’, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, an investigation was a structured and formalised procedure that had the purpose of collecting and analysing information in order to enable the institution concerned to take a position in the context of its functions. For example, the concept of ‘investigation’ could cover an activity intended to establish facts in order to assess a given situation. Similarly, in order for a procedure to be classified as an ‘investigation’, it was not necessary for the position of the institution concerned in performing its functions to take the form of a decision within the meaning of the fourth paragraph of Article 288 TFEU. Such a position could take the form, inter alia, of a report or a recommendation (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraphs 46 to 48).
151    As argued by the SRB, the valuation procedure is a procedure structured and formalised by Article 20(16) of Regulation No 806/2014, which aims at enabling it to decide whether to compensate shareholders and creditors affected by the resolution. Contrary to what the applicant maintains, the fact that the valuation procedure is carried out by an independent valuer is not relevant for the purposes of determining whether it should be classified as an ‘investigation’.
152    In those circumstances, there is no reason to call into question the SRB’s assessment, confirmed by the Appeal Panel, that the information concerning the independent valuer came within the scope of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001.
153    In so far as the valuation procedure was still ongoing at the time of the adoption of the second confirmatory decision, the SRB and the Appeal Panel rightly found that the disclosure of information concerning the independent valuer could undermine the purpose of that procedure. Contrary to what the applicant claims, it does not follow from the wording of the second confirmatory decision that the SRB considered that the identity of the valuer should always remain confidential. The SRB based its decision on the facts referred to in paragraph 148 above. Moreover, there is no evidence that the valuer entrusted by the SRB with that valuation procedure is not independent. Contrary to what the applicant claims, the mere fact that the information concerning the valuer was, at the time of the adoption of the second confirmatory decision, covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 is therefore not contrary to Article 20 of Regulation No 806/2014.
154    Last, only an overriding public interest within the meaning of Article 4(2) of Regulation No 1049/2001 can take priority over the need to protect the purpose of the investigations referred to in the third indent of Article 4(2) of that regulation (see paragraph 125 above).
155    While it is for the institution concerned to weigh up different interests, it is for the applicant to refer specifically to circumstances that establish such an overriding public interest. A statement setting out purely general considerations is not sufficient for the purpose of establishing that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (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 158, and of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 131 and the case-law cited).
156    In the present case, as is apparent from the second confirmatory decision, summarised in paragraph 148 above, the SRB considered that there was no overriding public interest.
157    Before the General Court, the applicant argued that there was an interest in disclosure, since it was the second resolution scheme adopted by the SRB and the use of an independent valuer was a core part of the way in which the SRB discharged its responsibilities. However, it should be noted that, in the light of the case-law cited in paragraph 155 above, such general considerations are not capable of establishing that an overriding public interest prevailed over the reasons justifying the refusal of access to the information concerning the independent valuer.
158    In the second place, in the second decision of the Appeal Panel, the latter noted that the SRB had identified the specific information covered by the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001 and had explained that, as the valuation procedure provided for in Article 20 of Regulation No 806/2014 was still ongoing, the disclosure of the identity and role of the independent valuer could have a negative impact on the completion of that procedure by undermining the ability of that valuer to finalise the process independently and free from external pressure. The Appeal Panel considered that the scope of that exception covered all the processes the purpose of which was to gather and analyse information in order to enable the institution or agency to take a position, which also included an independent valuer’s activities.
159    It follows that the Appeal Panel set out the facts and legal considerations having decisive importance in the context of that decision, with the result that it was not necessary for it to expressly reject the case-law relied on by the applicant and it therefore complied with its obligation to state reasons in accordance with the case-law set out in paragraph 84 above.
160    Moreover, the case-law cited by the applicant in the second statement of modification, namely paragraphs 73 and 74 of the judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others (C‑628/10 P and C‑14/11 P, EU:C:2012:479); paragraph 131 of the judgment of 8 July 2020, Crédit Agricole v ECB (T‑576/18, EU:T:2020:304); and paragraphs 630 to 635 of the judgment of 20 December 2023, JPMorgan Chase and Others v Commission (T‑106/17, under appeal, EU:T:2023:832), which the Appeal Panel allegedly failed to take into account, concerns the obligation of the administration to communicate the reasoning to the person concerned at the same time as the decision adversely affecting him or her. However, the adoption by the SRB of a second confirmatory decision following a first decision by the Appeal Panel must not be confused with the situation in which an institution supplements its reasoning during the procedure before the EU Courts.
161    Consequently, the arguments based on misapplication of the exception relating to the protection of the purpose of inspections, investigations and audits must be rejected.
The pleas alleging implicit misapplication of other grounds for refusal and concealment of the real grounds for refusal
162    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.
163    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.
164    The SRB disputes that line of argument.
165    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.
166    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.
167    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.
168    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.
169    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.
170    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.
171    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
172    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.
173    The SRB disputes that line of argument.
174    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.
175    In that regard, the second confirmatory decision states that Decisions SRB/EES/2022/17 and SRB/EES/2022/21 contain information originating from or concerning third parties and that, therefore, the SRB consulted those third parties, including the ECB, Sberbank Croatia and the independent valuer, on the application of the exceptions to the access to documents provided for in Regulation No 1049/2001.
176    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.
177    The assessment of the Appeal Panel summarised in paragraph 176 above is free from any error.
178    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 fourth indent of Article 4(1)(a) and by the first indent of Article 4(2) of Regulation No 1049/2001, as regards, for example, information relating to the deterioration of Sberbank Croatia’s liquidity position, or by the fourth indent of Article 4(1)(a) and by the first and third indents of Article 4(2) of Regulation No 1049/2001, as regards information relating to the identity and role of the valuer.
179    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, and 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 identity and role of the valuer, the SRB merely states that the valuer was consulted on the disclosure of that information, without mentioning whether or not the valuer objected to its disclosure or, a fortiori, summarising the content of the valuer’s comments.
180    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 in Decisions SRB/EES/2022/17 and SRB/EES/2022/21.
181    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.
182    In that regard, as set out in paragraph 113 above, the second confirmatory decision states that the SRB consulted the ECB, which took the view that disclosure of information on Sberbank Croatia’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,
as 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 114 above.
183    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
184    First, the applicant submits, in essence, that, since the SRB has still not disclosed the key information in Decisions SRB/EES/2022/17 and SRB/EES/2022/21, those documents are devoid of meaningful content. The SRB is thus taking action to avoid any critical examination. Moreover, the second confirmatory decision does not explain the relationship between each ground for refusal of access and each redaction. It therefore does not provide adequate reasoning in the light of Article 296 TFEU and Article 41 of the Charter. Furthermore, in failing to disclose the information relating to the deterioration of Sberbank Croatia’s liquidity position and the related measures, the SRB disregarded the first decision of the Appeal Panel and, in doing so, infringed Article 85(8) of Regulation No 806/2014.
185    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. Moreover, the Appeal Panel failed to recognise that, by failing to comply with that guidance, the SRB had infringed Article 85(8) of Regulation No 806/2014.
186    The SRB disputes that line of argument.
187    In the first place, as regards the second confirmatory decision, it should, first of all, be noted that, in the present case, it has been established that the information redacted from the documents in question was covered by the exceptions provided for in Article 4 of Regulation No 1049/2001. However, as the SRB pointed out in the second confirmatory decision, the information published in the non-confidential version of the documents in question adequately explains that Sberbank Croatia was facing difficulties because of the seriousness of the liquidity outflows and because none of the measures taken had remedied the situation and that there was no reasonable prospect that other measures taken by the private sector could prevent the failure of that institution within a reasonable timeframe. In particular, the non-confidential version of Decision SRB/EES/2022/21 made it possible to understand the procedure and sequence of events which had led to the adoption of a resolution scheme for Sberbank Croatia.
188    Moreover, the applicant merely asserts that the SRB attempts to evade critical scrutiny of its actions, without providing any specific evidence or indication capable of supporting that argument.
189    Those arguments of the applicant must therefore be rejected.
190    Next, for the reasons set out in paragraphs 82 to 92 above, the applicant’s assertion that the statement of reasons in the second confirmatory decision is inadequate in the light of Article 296 TFEU and Article 41 of the Charter is not convincing.
191    Last, as is apparent from the examination of the pleas alleging misapplication of the exception relating to the protection of commercial interests set out in paragraphs 116 to 139 above, the information on the deterioration in Sberbank Croatia’s liquidity position and on the related measures is, in any event, covered by that exception, provided for in the first indent of Article 4(2) of Regulation No 1049/2001; this is in no way incompatible with the first decision of the Appeal Panel.
192    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 134 to 138 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 85 to 118 of that decision.
193    Moreover, in paragraph 136 of its second decision, under the heading ‘Eleventh ground of appeal’, the Appeal Panel considered that the SRB had provided detailed reasons for its refusal to disclose certain parts of the documents in question. The Appeal Panel found that, in so doing, the SRB had complied with the guidance which it had provided in its first decision. In the light of what has been stated in paragraphs 190 and
191 above, the Appeal Panel cannot be criticised for not having found an infringement of Article 85(8) of Regulation No 806/2014.
194    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
195    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.
196    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.
197    The SRB disputes that line of argument.
198    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).
199    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.
200    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.
201    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.
202    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).
203    For the reasons set out by the Appeal Panel and reproduced in paragraph 201 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).
204    Next, for the reasons referred to in paragraphs 101 and 102 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.
205    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 84 above.
206    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
207    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.
208    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.
209    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.
210    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.
211    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.
212    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.
213    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.
214    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 140 and 141 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 61 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 80 to 84 and 134 to 138 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.
215    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.
216    Moreover, the applicant’s complaint against the SRB is, as is apparent from paragraphs 210 and 211 above, too general and insufficiently substantiated to be successful, so that the Appeal Panel cannot be criticised for rejecting that argument.
217    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.
218    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
219    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 28 July 2022 concerning a request for access to documents made by MeSoFa Vermögensverwaltungs AG, the decision of the SRB Appeal Panel of 8 March 2023 in Case 4/2022 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 two months 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 the purpose of inspections, investigations and audits
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.