Appeal brought on 5 July 2018 by the European Central Bank against the judgment of the General Court (Sixth Chamber) delivered on 26 April 2018 in Case T-251/15: Espírito Santo Financial (Portugal) v European Central Bank

(Case C-442/18 P)

(2018/C 445/02)

Language of the case: English

Parties

Appellant: European Central Bank (represented by: F. Malfrère, M. Ioannidis, Agents, H.-G. Kamman, Rechtsanwalt)

Other party to the proceedings: Espírito Santo Financial (Portugal), SGPS, SA

Form of order sought

The appellant claims that the Court should:

— set aside order No. 1 of the judgment of the General Court of 26 April 2018, Espírito Santo Financial (Portugal), SGPS, SA v ECB, T-251/15, EU:T:2018:234;

— dismiss the application also as concerns the ECB’s refusal to disclose the amount of credit in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014;

— in the alternative to No. 2, refer the case back to the General Court of the European Union for it to give judgment;

— order the applicant at first instance and respondent to pay two thirds (2/3), and the ECB to pay one third (1/3) of the costs of the proceedings.

Pleas in law and main arguments

First and only ground of appeal: infringement of Article 10.4 of the Statute of the European System of Central Banks and of the European Central Bank (‘Statute’) and the first indent of Article 4(1)(a) of Decision 2004/258 (1)

The ECB submits that the General Court erroneously interpreted and applied Article 10.4 of the Statute and the first indent of Article 4(1)(a) of Decision 2004/258, by holding in the judgment under appeal, in particular in paragraphs 55, 75-81 as well as 124 and 161, that the Governing Council’s discretion regarding the disclosure of its minutes ‘must be exercised in accordance with the conditions and limits laid down in Decision 2004/258’ (paragraph 80), meaning, in the particular case, that the ECB is obliged to provide a statement of reasons explaining how disclosure of information contained in minutes of Governing Council proceedings recording Governing Council decisions specifically and actually undermine the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies.

Article 10.4 of the Statute establishes the presumption that information which is part of Governing Council proceedings needs to be kept confidential in order to protect ECB independence and effectiveness. This primary-law rule, which cannot be deviated from by secondary law, also applies to parts of the minutes recording Governing Council decisions. It is restated in the first indent of Article 4(1)(a) of Decision 2004/258. It follows from the general principle of confidentiality of Governing Council proceedings, including decisions, as set by Article 10.4 of the Statute, that the ECB does not need to subject its decision to make the outcome of its deliberations public to the substantive and procedural standards set out in Decision 2004/258. In particular, it does not need to explain why disclosure of such Governing Council minutes would specifically and actually undermine the public interest as regards the confidentiality of the Governing Council proceedings.

(1) Decision 2004/258/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004, L 80, p. 42).