Provisional text

JUDGMENT OF THE GENERAL COURT (Third Chamber, Extended Composition)

6 October 2021 ( )

(Access to documents – Decision 2004/258/EC – Documents concerning the adoption of a resolution scheme for Banco Popular Español – Partial refusal of access – Exception relating to the protection of the confidentiality of the proceedings of the ECB’s decision-making bodies – Documents reflecting the outcome of the proceedings of the ECB’s decision-making bodies – Obligation to state reasons – Exception relating to the protection of the financial, monetary or economic policy of the European Union or of a Member State – Exception relating to the protection of the stability of the financial system in the European Union or in a Member State – Exception relating to the protection of the confidentiality of information that is protected as such under EU law – Concept of ‘confidential information’ – General presumption of confidentiality – Exemptions from the obligation of professional secrecy – Article 47 of the Charter of Fundamental Rights)

In Case T‑827/17,

Aeris Invest Sàrl, established in Luxembourg (Luxembourg), represented by R. Vallina Hoset and E. Galán Burgos, lawyers,

applicant,

v

European Central Bank (ECB), represented by T. Filipova, D. Báez Seara and F. von Lindeiner, acting as Agents, and by M. Kottmann, lawyer,

defendant,

supported by

European Commission, represented by É. Gippini Fournier, J. Rius, C. Ehrbar and A. Steiblytė, acting as Agents,

and by

Banco Santander, SA, established in Santander (Spain), represented by J. Rodríguez Cárcamo and A. Rodríguez Conde, lawyers,

interveners,

APPLICATION under Article 263 TFEU for annulment of Decisions LS/MD/17/405, LS/MD/17/406 and LS/MD/17/419 of the ECB of 7 November 2017 refusing to grant full access to certain documents concerning the adoption of a resolution scheme for Banco Popular Español, SA,

THE GENERAL COURT (Third Chamber, Extended Composition),

composed of A.M. Collins, President, V. Kreuschitz, Z. Csehi, G. De Baere (Rapporteur) and G. Steinfatt, Judges,

Registrar: A. Juhász-Tóth, Administrator,

having regard to the written part of the procedure and further to the hearing on 4 March 2021,

gives the following

Judgment

I. Background to the dispute

Resolution of Banco Popular Español, SA

1 Banco Popular Español, SA (‘Banco Popular’) was a credit institution established in Spain subject to direct prudential supervision by the European Central Bank (ECB) pursuant to Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63).

2 On 6 June 2017, the ECB, after consulting the Single Resolution Board (SRB), carried out an assessment regarding whether Banco Popular was failing or was likely to fail (‘the FOLTF assessment’), in accordance with the second subparagraph of Article 18(1) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1).

3 That same day, Banco Popular’s board of directors informed the ECB that it had reached the conclusion that the bank was likely to fail.

4 Also on the same day, the ECB sent the final version of the FOLTF assessment to the SRB and the European Commission, in accordance with the third subparagraph of Article 18(1) of Regulation No 806/2014.

5 In the FOLTF assessment, the ECB stated that in the preceding months there had been a substantial deterioration in the liquidity situation of Banco Popular, primarily driven by a significant depletion of its deposit base.

6 In view, in particular, of the excessive deposit outflows, the speed at which Banco Popular had lost liquidity and its inability to generate further liquidity, the ECB took the view that there were objective elements indicating that Banco Popular would be unlikely, in the near future, to be able to pay its debts or other liabilities as they fell due. The ECB concluded from this that Banco Popular was failing or, in any case, was likely to fail in the near future, in accordance with Article 18(1)(a) and (4)(c) of Regulation No 806/2014.

7 On 7 June 2017, the SRB in its executive session adopted Decision SRB/EES/2017/08 concerning a resolution scheme in respect of Banco Popular on the basis of Regulation No 806/2014 (‘the resolution scheme’). The resolution scheme was addressed to the Fondo de Reestructuración Ordenada Bancaria (FROB, Fund for Orderly Bank Restructuring, Spain).

8 Prior to the adoption of the resolution scheme, Banco Popular was valued in accordance with Article 20 of Regulation No 806/2014. That valuation comprised an initial valuation report dated 5 June 2017, drawn up by the SRB pursuant to Article 20(5)(a) of Regulation No 806/2014, and a second valuation report dated 6 June 2017, drawn up by an independent expert pursuant to Article 20(10) of Regulation No 806/2014. Those two valuation reports are annexed to the resolution scheme.

9 Taking the view that the conditions laid down in Article 18(1) of Regulation No 806/2014 were met, the SRB decided to place Banco Popular under resolution. Thus, the SRB found, first, that Banco Popular was failing or was likely to fail, second, that there were no alternative measures that could prevent Banco Popular’s failure within a reasonable timeframe and, third, that a resolution action in the form of a sale-of-business tool in respect of Banco Popular was necessary in the public interest.

10 The application of the sale-of-business tool consisted in transferring the shares in Banco Popular, free and clear of any rights or liens of any third party, to Banco Santander, SA, as consideration for the purchase price of EUR 1.

11 On 7 June 2017, the Commission adopted Decision (EU) 2017/1246 endorsing the resolution scheme for Banco Popular (OJ 2017 L 178, p. 15) and notified it to the SRB.

12 That same day, the FROB adopted the necessary measures to implement the resolution scheme, in accordance with Article 29 of Regulation No 806/2014.

13 The SRB published a press release on its website summarising the effects of the resolution scheme. Furthermore, on 11 July 2017, a summary notification of the resolution scheme was published in the Official Journal of the European Union (OJ 2017 C 222, p. 3). That summary notification stated that further information on the resolution scheme was available on the SRB’s website and provided the link giving access to that information, including the non-confidential version of the resolution scheme. That same day, Decision 2017/1246 was published in the Official Journal of the European Union (OJ 2017 L 178, p. 15).

14 By application lodged at the Registry of the General Court on 18 September 2017, the applicant, Aeris Invest Sàrl, brought an action for annulment of the resolution scheme. That action was registered as Case T‑628/17. On 10 October 2017, the applicant also brought an action for non-contractual liability against the SRB seeking compensation for the harm allegedly sustained following the adoption of the resolution scheme. That action was registered as Case T‑714/17.

The applications for access to documents submitted by the applicant

15 The applicant held shares in Banco Popular before the adoption of the resolution scheme.

16 Between 19 June and 2 August 2017, it submitted three applications for access to documents to the ECB, under Article 6(1) of Decision 2004/258/EC of the ECB of 4 March 2004 on public access to ECB documents (OJ 2004 L 80, p. 42), as amended by Decision 2011/342/EU of the ECB of 9 May 2011 (OJ 2011 L 158, p. 37) and Decision (EU) 2015/529 of the ECB of 21 January 2015 (OJ 2015 L 84, p. 64), and two applications to Banco de España (Bank of Spain, Spain). The applications sent to the Bank of Spain, which concerned documents drawn up or held by the ECB, were forwarded to the ECB, in accordance with the second paragraph of Article 5 of Decision 2004/258.

17 In response to the applicant’s applications for access to documents, the ECB adopted four decisions, namely Decision LS/PT/2017/66 of 11 August 2017, Decision LS/PT/2017/77 of 30 August 2017, Decision LS/PT/2017/71 of 31 August 2017 and Decision LS/PT/2017/74 of 1 September 2017.

18 Following those decisions, in accordance with Article 8(2) of Decision 2004/258, the applicant submitted a single confirmatory application to the Executive Board of the ECB (‘the confirmatory application’) in which it grouped together all the documents to which it sought full access, referred to in the decisions of the ECB mentioned in paragraph 17 above.

19 Thus, the applicant requested, inter alia, access to the following documents:

– the redacted data concerning the ceiling for emergency liquidity assistance (‘ELA’), the amount of ELA actually granted, the collateral provided by Banco Popular for the grant of ELA (‘the collateral provided’), the liquidity situation and the capital ratios;

– the FOLTF assessment;

– any document from the Bank of Spain showing the daily balance (positive or negative) of the deposits of Banco Popular, namely both withdrawals and amounts deposited, between 1 January and 6 June 2017, and any documents containing some or all of that information;

– any document from the Bank of Spain containing, first, the average balance (positive or negative) of the deposits of Banco Popular, namely both withdrawals and amounts deposited, between 1 January and 23 May 2017, and, second, the daily balance (positive or negative) of the withdrawals from Banco Popular between 1 January and 23 May 2017;

– the documents sent by Banco Popular to the ECB and the Bank of Spain within the framework of the Single Supervisory Mechanism (SSM) between 1 and 6 June 2017 relating to the adoption by the SRB of the resolution scheme, in particular correspondence sent by Banco Popular to the ECB on 6 June 2017 and, in the alternative, the letter that Banco Popular sent to the ECB on 6 June 2017.

20 The ECB replied to the confirmatory application by three decisions adopted on 7 November 2017 (‘the contested decisions’).

21 By Decision LS/MD/17/405 of 7 November 2017 (‘the first contested decision’), the ECB refused to grant access to the information listed in the third and fourth indents of paragraph 19 above. According to the ECB, the document containing that information was covered by a general presumption of confidentiality under Article 4(1)(c) of Decision 2004/258, which seeks to protect the confidentiality of information that is protected as such under EU law.

22 In that regard, the ECB stated that in the context of its ongoing prudential supervisory activities, it collects information on deposits at specific end-period dates for the credit institutions it directly supervises. Such reporting does not usually cover information relating to the daily balance (positive or negative) of deposits, that is to say both withdrawals and deposits, or information relating to the liquidity coverage capacity of the credit institution concerned. In Banco Popular’s case, the ECB exceptionally began to collect that information on 3 April 2017.

23 According to the ECB, the document containing that information was prepared by it in the context of its prudential supervisory tasks and its contents were taken into account in preparing the FOLTF assessment. As such, the requested document was part of the administrative file relating to the ongoing prudential supervision of Banco Popular and the FOLTF procedure.

24 Therefore, the requested document was covered by the obligations of professional secrecy laid down in Article 27 of Regulation No 1024/2013, Article 53 et seq. of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338), and Article 84 of Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190). According to the ECB, its disclosure could have damaging consequences not only for Banco Popular but also for the banking system in general, since banks could no longer be sure that the information provided would remain confidential.

25 By Decision LS/MD/17/406 of 7 November 2017 (‘the second contested decision’), the ECB refused to grant access to the information listed in the first indent of paragraph 19 above. That information had been redacted when the ECB granted the applicant partial access in response to its first application for access. That partial access concerned the following four documents:

– a letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’;

– a follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’;

– a proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’;

– the minutes of the 447th meeting of the Governing Council of the ECB held by teleconference on 5 June 2017.

26 The ECB decided that full access to those documents could not be granted for several reasons. First, the information they contained concerning the ELA ceiling and the amount of ELA actually granted was covered by the exceptions laid down in the first indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the confidentiality of the proceedings of the ECB’s decision-making bodies, in the second indent of Article 4(1)(a) of that decision, relating to the protection of the public interest in the financial, monetary or economic policy of the European Union or of a Member State, and in the seventh indent of Article 4(1)(a) of that decision, relating to the protection of the public interest in the stability of the financial system in the European Union or in a Member State. Second, according to the ECB, the information contained in the requested documents concerning the collateral provided was also protected by the exception laid down in the first indent of Article 4(2) of Decision 2004/258, relating to the protection of the commercial interests of a natural or legal person. Third, the ECB took the view that information concerning Banco Popular’s liquidity situation and capital ratios was protected under the exceptions laid down in Article 4(1)(c) of Decision 2004/258, relating to the protection of the confidentiality of information that is protected as such under EU law, and in the first indent of Article 4(2) of that decision, relating to the protection of the commercial interests of a natural or legal person.

27 As for information concerning the ELA ceiling and the amount of ELA actually granted, the ECB stated that disclosure of that information could specifically and effectively undermine monetary policy and financial stability in so far as the unfettered ability of national central banks to address temporary liquidity problems is an essential component of financial stability and a fundamental prerequisite for the effectiveness of monetary policy.

28 According to the ECB, the resolution of Banco Popular increased the sensitivity of the Spanish financial market to possible similar cases. Market confidence deteriorated, especially regarding small financial institutions. The disclosure of information relating to the ELA ceiling and the amount of ELA actually granted might revive tensions vis-à-vis financial institutions or fuel unwarranted speculation as regards the situation of Banco Santander. In addition, since financial markets are highly interconnected, any negative developments in Spain could have spillover effects in other Member States, which could ultimately have adverse effects on the financial stability of the European Union.

29 The ECB also pointed out that disclosure of the ELA ceiling and the amount of ELA actually granted to Banco Popular could reduce the flexibility that national central banks have to tailor ELA to specific circumstances in future cases. Moreover, disclosure of that data might lead to an expectation that national central banks and the ECB will act in the same way even in situations not warranting such an approach.

30 As for the collateral provided, the ECB stated, in essence, that disclosure of that information would undermine the effectiveness of ELA as a tool for maintaining financial stability. According to the ECB, banks would be deterred from seeking ELA at the appropriate time if information concerning the collateral provided were published. Disclosure of that information, even ex post, could also have the effect of reducing the flexibility of national central banks to consider a wide range of possible assets, since knowledge of the approach they have endorsed in the past would create expectations as to the type of collateral that might be accepted in the future. That would curtail their ability to respond effectively to future liquidity problems and would undermine the effectiveness of ELA as a tool for maintaining financial stability.

31 As regards information relating to Banco Popular’s liquidity situation and capital ratios, the ECB stated that that information fell within the scope of prudential supervision and was therefore protected by the rules of professional secrecy and confidentiality applicable to that area, provided for in Article 27 of Regulation No 1024/2013, read in conjunction with Article 53 et seq. of Directive 2013/36. According to the ECB, disclosure of that data would trigger speculation among market participants about Banco Santander’s liquidity situation and its financing needs, thereby generating unwarranted funding pressures. Disclosure of that information would thus risk undermining the public interest in the stability of the financial system in Spain and the European Union and also risk undermining Banco Santander’s commercial interests.

32 Lastly, the ECB stated that, in its view, there was no overriding public interest that could trump the application of the exception laid down in the first indent of Article 4(2) of Decision 2004/258. It found that the interest relied on in the present case by the applicant, namely its status as former shareholder, was a private interest which could not prevail over the public interest protected by that provision.

33 By Decision LS/MD/17/419 of 7 November 2017 (‘the third contested decision’), the ECB refused to grant access to the documents listed in the second and fifth indents of paragraph 19 above. The ECB took the view that those documents were covered by a general presumption of confidentiality based on the exceptions laid down in Article 4(1)(c) of Decision 2004/258, relating to the protection of the confidentiality of information that is protected as such under EU law, and in the first indent of Article 4(2) of that decision, relating to the protection of the commercial interests of a natural or legal person.

34 The ECB explained that the full text of the FOLTF assessment and the documentation provided by Banco Popular, namely Banco Popular’s capital and liquidity situation, information on the requirements for its authorisation and correspondence sent by Banco Popular to the ECB between 1 and 6 June 2017, were part of the administrative files relating to ongoing prudential supervision and the FOLTF assessment procedure.

35 Since those administrative files were linked to the performance by the ECB of its tasks as prudential supervisory authority, they were covered by the obligations of professional secrecy and confidentiality applicable in that area, provided for in Article 27 of Regulation No 1024/2013, Article 53 et seq. of Directive 2013/36 and Article 84 of Directive 2014/59.

36 According to the ECB, disclosure of the requested documents could have damaging consequences not only for the credit institution concerned but also for the banking system in general, since banks could no longer be sure that the information they provide to the ECB for prudential supervision purposes will remain confidential.

37 The rules governing professional secrecy and confidentiality permit the disclosure of confidential information only in summary or aggregate form in such a way that the credit institution concerned cannot be identified. Those rules continue to apply even where a credit institution has been the subject of resolution.

38 The ECB then noted that the requested documents also contained information on Banco Popular’s market position and its assets and liabilities, disclosure of which could adversely affect the commercial interests of Banco Popular and its parent company, Banco Santander. The ECB considered, in particular, that information such as the assessment of the impact of Banco Popular’s liquidity on the funding and operating structure of its subsidiary Banco Popular Portugal was commercially sensitive and could trigger unwarranted speculation about the group’s financial and liquidity situation.

39 Lastly, the ECB stated that, in its view, there was no overriding public interest that could trump the application of the exception laid down in the first indent of Article 4(2) of Decision 2004/258. It found that the interest relied on in the present case by the applicant, namely its status as former shareholder, was a private interest which could not prevail over the public interest protected by that provision.

II. Events subsequent to the bringing of the action

40 Following actions brought before the SRB’s Appeal Panel by several former shareholders, including the applicant, and creditors of Banco Popular, the SRB published on its website a number of documents concerning the resolution of Banco Popular.

41 By application lodged at the Court Registry on 6 February 2018, the applicant brought an action for annulment of the decision of the SRB’s Appeal Panel of 28 November 2017, registered as Case T‑62/18.

42 In addition, on 18 July 2018, the applicant brought an action for annulment of Decision LS/MD/18/141 of the ECB of 8 May 2018, by which the ECB had refused to grant access to certain documents concerning the resolution of Banco Popular, other than the documents forming the subject matter of the present action. That action was registered as Case T‑442/18.

43 On 14 June 2018, the firm Deloitte sent the SRB a valuation report drawn up in order to ascertain whether the shareholders and creditors would have received better treatment if the institution under resolution had entered into normal insolvency proceedings, as provided for in Article 20(16) to (18) of Regulation No 806/2014 (‘Valuation 3’).

44 On 6 August 2018, the SRB published on its website its Notice of 2 August 2018 regarding its preliminary decision SRB/EES/2018/132 on whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular have been effected and the launching of the right to be heard process, together with a non-confidential version of Valuation 3. On 7 August 2018, an announcement concerning the SRB’s Notice of 2 August 2018 was published in the Official Journal of the European Union (OJ 2018 C 277 I, p. 1).

45 On 17 March 2020, the SRB adopted Decision SRB/EES/2020/52 determining whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular have been effected. In that decision, published on its website, the SRB took the view that the shareholders and creditors that had been affected by the resolution of Banco Popular were not entitled to compensation from the Single Resolution Fund (SRF) pursuant to Article 76(1)(e) of Regulation No 806/2014. On 20 March 2020, an announcement concerning that decision was published in the Official Journal of the European Union (OJ 2020 C 91, p. 2).

III. Procedure and forms of order sought by the parties

46 By application lodged at the Court Registry on 27 December 2017, the applicant brought the present action.

47 By separate document lodged at the Court Registry on the same day, the applicant requested that the present action be dealt with under an expedited procedure in accordance with Article 152 of the Rules of Procedure of the General Court. The ECB submitted its observations on that request within the prescribed period. By decision of 26 January 2018, the General Court (Eighth Chamber) refused the request for an expedited procedure.

48 By documents lodged at the Court Registry on 6 March 2018, Banco Popular and Banco Santander each applied for leave to intervene in these proceedings in support of the form of order sought by the ECB.

49 By document lodged at the Court Registry on 11 April 2018, the Commission applied for leave to intervene in these proceedings in support of the form of order sought by the ECB.

50 By decision of 17 July 2018, the President of the Eighth Chamber of the General Court granted the Commission leave to intervene. The Commission lodged its statement in intervention and the main parties lodged their observations on that statement within the prescribed period.

51 By orders of 27 July 2018, the President of the Eighth Chamber of the General Court granted Banco Santander and Banco Popular leave to intervene. They lodged their statements in intervention and the main parties lodged their observations on those statements within the prescribed period.

52 By document lodged at the Court Registry on 30 October 2018, Banco Santander informed the Court that with effect from 28 September 2018, it had become the universal successor of Banco Popular and that Banco Popular’s intervention had been withdrawn.

53 The applicant lodged its observations on the withdrawal of Banco Popular’s intervention within the prescribed period. Neither the ECB nor the Commission lodged observations in that regard.

54 By order of 5 February 2019, the President of the Eighth Chamber of the General Court removed Banco Popular’s intervention from the register and ordered Banco Santander to bear its own costs and to pay the costs incurred by the applicant in relation to the intervention of Banco Popular. It also decided that the ECB and the Commission should bear their own costs.

55 By decision of the President of the Eighth Chamber of 1 August 2019, after the parties had been heard, the proceedings were stayed in accordance with Article 69(b) of the Rules of Procedure pending a final decision in the case having since given rise to the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117).

56 Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was accordingly allocated.

57 On 19 December 2019, the Court of Justice delivered its judgment in ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117). In consequence, the proceedings in the present case were resumed.

58 By way of measures of organisation of procedure provided for in Article 89 of the Rules of Procedure, the applicant was invited to express its views on the inferences which it considered should be drawn from the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117), for the present case, while the ECB, the Commission and Banco Santander were invited to submit observations on the applicant’s reply.

59 By way of a measure of organisation of procedure provided for in Article 89 of the Rules of Procedure, the applicant, the ECB and the Commission were invited to reply in writing to a number of questions put by the Court. They replied within the prescribed period.

60 By order relating to measures of inquiry of 27 November 2020, the Court ordered the ECB, under the first paragraph of Article 24 of the Statute of the Court of Justice of the European Union and under Article 91(c) and Article 104 of the Rules of Procedure, to produce the documents to which access had been refused in the contested decisions.

61 Acting on a proposal from the Third Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition.

62 By letter of 12 February 2021, Banco Santander stated that on account of the COVID-19 health crisis it was unable to travel to Luxembourg (Luxembourg) for the hearing and asked to be allowed to plead by videoconference. By decision of 17 February 2021, the President of the Third Chamber, Extended Composition, granted Banco Santander’s request.

63 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 4 March 2021.

64 The applicant claims that the Court should:

– annul the contested decisions;

– order the ECB to pay the costs.

65 The ECB, supported by the Commission and Banco Santander, contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

IV. Law

66 In support of its action, the applicant puts forward five pleas in law. The first plea alleges that the ECB infringed Article 4(1)(c) of Decision 2004/258 in the contested decisions. In the second plea, the applicant claims that the ECB infringed the second and seventh indents of Article 4(1)(a) of Decision 2004/258 in the second contested decision. The third plea seeks annulment of the second and third contested decisions on the ground of infringement of the first indent of Article 4(2) of Decision 2004/258. The fourth plea alleges infringement of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). In the fifth plea, raised for the first time in its observations on the statements in intervention of the Commission and Banco Santander, the applicant submits that the second contested decision is vitiated by an infringement of the obligation to state reasons in relation to the application of the first indent of Article 4(1)(a) of Decision 2004/258.

67 Before examining the five pleas in law raised by the applicant, it is necessary to determine whether the purpose of the action and the applicant’s interest in bringing proceedings continue to exist.

68 The Court will then need to examine the wording of the second contested decision. On the basis of that analysis, the fifth and second pleas will be dealt with first. Thereafter, the Court will consider the first and, if appropriate, the third plea, followed by, finally, the fourth plea.

A. Purpose of the action and the applicant’s interest in bringing proceedings

69 In its statement in intervention, Banco Santander draws the Court’s attention to the fact that, since the lodging of the present action, some documents have already been published to a large extent or will soon be published on the SRB’s website following the decisions of its Appeal Panel (see, in that regard, paragraph 40 et seq. above). Banco Santander submits that that fact could render the action devoid of purpose.

70 The ECB and the applicant dispute Banco Santander’s claims.

71 As Banco Santander rightly points out, it has been held that an intervener is not entitled to raise an objection of inadmissibility independently and that the Court is therefore not bound to consider the pleas on which the intervener relies exclusively, which do not relate to public policy (judgments of 24 March 1993, CIRFS and Others v Commission, C‑313/90, EU:C:1993:111, paragraph 22, and of 13 December 2018, Post Bank Iran v Council, T‑559/15, EU:T:2018:948, paragraph 63).

72 However, under Article 131(1) of the Rules of Procedure, if the Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.

73 According to settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 32 and the case-law cited).

74 Concerning, first, the purpose of the action, the Court of Justice recalled in paragraph 33 of its judgment of 21 January 2021, Leino-Sandberg v Parliament (C‑761/18 P, EU:C:2021:52), that in the field of public access to documents of the EU institutions, an action retains its purpose as long as the decision by which the institution concerned refused access to the requested document has not been formally withdrawn by that institution, even if the requested document has been disclosed by a third party.

75 Since the ECB has not formally withdrawn the contested decisions, the present action retains its purpose.

76 Concerning, second, the applicant’s interest in bringing proceedings, it should be pointed out that the following documents relating to the resolution of Banco Popular have been published in part or in full on the SRB’s website: (i) the resolution scheme; (ii) the first valuation report of 5 June 2017 drawn up by the SRB under Article 20(5)(a) of Regulation No 806/2014; (iii) the second valuation report of 6 June 2017 drawn up by an independent expert under Article 20(10) of Regulation No 806/2014; (iv) the 2016 resolution plan; (v) the letter of sale of 6 June 2017; (vi) the SRB’s decision of 3 June 2017 to initiate the sale of Banco Popular; (vii) the cover letter to the SRB’s decision of 3 June 2017 to initiate the sale of Banco Popular; (viii) Valuation 3; (ix) the SRB’s Notice of 2 August 2018 regarding its preliminary decision on whether compensation needs to be granted to the shareholders and creditors in respect of which the resolution actions concerning Banco Popular have been effected and the launching of the right to be heard process; (x) the 2017 data liability report; (xi) the 2017 critical functions report; and (xii) documents received from Banco Popular in the course of the private sale.

77 It must be stated that the documents referred to in paragraph 76 above do not include the documents forming the subject matter of the present dispute, as mentioned in paragraphs 21 to 25 and 33 above, which was confirmed by the applicant both in writing and at the hearing.

78 In any event, the Court of Justice has pointed out that in a situation where the applicant has only obtained access to the requested document disclosed by a third party and where the institution concerned continues to refuse to grant him or her access to the requested document, it cannot be considered that the applicant has obtained access to that document or that, therefore, he or she no longer has any interest in seeking the annulment of the decision at issue solely as a result of that disclosure. On the contrary, in such circumstances, the applicant retains a genuine interest in obtaining access to an authenticated version of the requested document guaranteeing that that institution is the author and that the document expresses its official position (see, to that effect, judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 48).

79 As the ECB confirmed at the hearing that it had not disclosed the requested documents since the lodging of the present action and that it continued to refuse access to them, it must be concluded that the applicant retains its interest in bringing proceedings in this action.

B. Interpretation of the second contested decision

80 As a preliminary point, it must be observed that there is a mismatch between the way in which the ECB has summarised the second contested decision in its written pleadings before the Court and the actual wording of that decision. Specifically, that mismatch concerns the provisions of Decision 2004/258 on which the ECB relied in the second contested decision in order to refuse access to the various types of information concerned.

81 It must be observed, first of all, that the Court will use the English version of the second contested decision in order to interpret the content of that decision. The Spanish version of the second contested decision contains the words ‘Traducción de cortesía (en caso de discrepancia prevalece la versión en inglés)’ (Courtesy translation (in the event of divergence, the English-language version prevails)). It is common ground between the parties that the English version of that decision must be regarded as the authentic version.

82 Next, as stated in paragraph 25 above, it should be recalled that the second contested decision contains a refusal to grant partial access to four documents containing five categories of information: information relating to the ELA ceiling, the amount of ELA actually granted, the collateral provided, the liquidity situation of Banco Popular and the capital ratios of Banco Popular. The second contested decision applied five exceptions to the right of access to those five categories of information, exceptions which overlap depending on the type of information in question.

83 In response to a question put by the Court at the hearing, the ECB explained that, in its view, the second contested decision is based on the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258 as regards each of the five categories of information to which access was refused (see paragraph 82 above). According to the ECB, that interpretation is confirmed by Annex B.1 to the defence, containing a table listing the documents requested and the grounds for (partial) non-disclosure relied on by the ECB, which forms an integral part of the second contested decision.

84 In response to the ECB’s claims, the applicant stated at the hearing that it considered its rights of the defence to have been infringed since it did not receive Annex B.1 to the defence with the second contested decision and the wording of the second contested decision did not confirm the ECB’s view that the five categories of information to which access had been refused were covered by the set of exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258.

85 It must be stated, first, that the second contested decision was intended to confirm Decision LS/PT/2017/66 of the ECB of 11 August 2017. It is apparent from the wording of the decision of 11 August 2017 that only information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided was covered by the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258, not information concerning Banco Popular’s liquidity situation and capital ratios.

86 Second, in the second contested decision, under the heading ‘Information on the liquidity situation and the capital ratios of BPE’, the ECB stated that ‘in your confirmatory application you do not contest the ECB’s reasoning and arguments put forward as justification for the non-disclosure of the liquidity situation and the capital ratios of BPE’ and that ‘the Executive Board takes the view that such data are protected under Article 4(1)(c) (“protected as such under Union law”) and the first indent of Article 4(2) (“the commercial interests of a natural or legal person”) of Decision ECB/2004/3’. Those sentences leave no doubt that information relating to Banco Popular’s liquidity situation and capital ratios was not covered by the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258.

87 Third, it must be observed that, contrary to the ECB’s claims, there is nothing in the case file to support the conclusion that Annex B.1 to the ECB’s defence is an integral part of the second contested decision.

88 The second contested decision does not refer to any attached annex. Moreover, the table in Annex B.1 concerns the three contested decisions, not just the second contested decision, so that it is likely that that annex was drawn up for the purposes of the present action.

89 In the light of those considerations, it must be concluded that, contrary to the ECB’s arguments in its written pleadings before the Court and at the hearing, the second contested decision is not based on the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258 as regards each of the five categories of information to which access was refused. Specifically, in the second contested decision the ECB only refused access to the ELA ceiling, to the amount of ELA actually granted and to the collateral provided on the basis of the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258. Access to information concerning the collateral provided was also refused on the basis of the first indent of Article 4(2) of Decision 2004/258. By contrast, as regards the refusal to grant access to information concerning Banco Popular’s liquidity situation and capital ratios, the second contested decision is based solely on Article 4(1)(c) and the first indent of Article 4(2) of Decision 2004/258.

C. Fifth plea in law: infringement of the obligation to state reasons in relation to the application of the first indent of Article 4(1)(a) of Decision 2004/258 in the second contested decision

90 In its observations on the statements in intervention of the Commission and Banco Santander, the applicant raises a plea alleging that the second contested decision is vitiated by a failure to state reasons because the ECB did not explain in that decision the reasons for its view that (i) information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided was covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the confidentiality of the proceedings of the ECB’s decision-making bodies, and (ii) disclosure of that information could specifically and actually undermine the interest protected by that exception.

91 In support of that plea, the applicant refers to the judgment of 26 April 2018, Espírito Santo Financial (Portugal) v ECB (T‑251/15, not published, EU:T:2018:234). In that judgment, the Court held that the ECB had infringed its obligation to state reasons by failing (i) to explain why the documents requested in that case fell within the area covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258 and (ii) to provide a statement of reasons that would have made it possible to understand and verify how access to the documents at issue would have undermined the protected interest.

1. Preliminary remarks

92 It must be stated that it was only at an advanced stage of the proceedings, namely in its observations on the statements in intervention of the Commission and Banco Santander, that the applicant raised the plea alleging infringement of the obligation to state reasons.

93 It should be borne in mind that in an action for annulment a plea alleging that the statement of reasons for a measure is lacking or inadequate involves a matter of public policy which may, or even must, be raised by the EU Courts of their own motion and, consequently, may be raised by the parties at any stage of the proceedings (judgments of 20 February 1997, Commission v Daffix, C‑166/95 P, EU:C:1997:73, paragraph 25; of 13 December 2001, Krupp Thyssen Stainless and Acciai speciali Terni v Commission, T‑45/98 and T‑47/98, EU:T:2001:288, paragraph 125; and of 10 February 2021, Şanli v Council, T‑157/19, not published, EU:T:2021:75, paragraph 34).

94 Moreover, according to settled case-law, the obligation to state the reasons on which an act adversely affecting an individual is based, as provided for in the second paragraph of Article 296 TFEU and enshrined in Article 41(2)(c) of the Charter, is a corollary of the principle of respect for the rights of the defence and its purpose is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the EU Courts and, second, to enable those Courts to review the legality of that act (see judgments of 26 July 2017, Council v LTTE, C‑599/14 P, EU:C:2017:583, paragraph 29 and the case-law cited, and of 10 February 2021, Şanli v Council, T‑157/19, not published, EU:T:2021:75, paragraph 36 and the case-law cited).

95 According to equally settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution that adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the EU Courts to exercise their power of review (judgments of 30 April 2019, Italy v Council (Fishing quota for Mediterranean swordfish), C‑611/17, EU:C:2019:332, paragraph 40; of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 85; and of 27 January 2021, KPN v Commission, T‑691/18, not published, EU:T:2021:43, point 161).

96 In the present case, as will be explained below, the ECB’s refusal to grant access to certain information on the basis of the first indent of Article 4(1)(a) of Decision 2004/258 does not meet those requirements.

2. Infringement of the obligation to state reasons

(a) Failure to state reasons for the refusal to grant access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided

97 It should be recalled, first of all, that with respect to the legal framework applicable to the right of access to ECB documents, the second paragraph of Article 1 TEU enshrines the principle that the European Union’s decision-making process must be open. In that respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the European Union’s institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the European Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, under the second subparagraph of Article 15(3) TFEU, general principles and limits on grounds of public or private interest governing that right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. The third subparagraph of Article 15(3) TFEU provides that each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph thereof. According to the fourth subparagraph of Article 15(3) TFEU, the Court of Justice of the European Union, the ECB and the European Investment Bank (EIB) are to be subject to that paragraph only when exercising their administrative tasks.

98 Decision 2004/258 seeks, as stated in recitals 2 and 3 thereof, to authorise wider access to ECB documents than that which existed under the rules established by ECB Decision 1999/284/EC of 3 November 1998 concerning public access to documentation and the archives of the ECB (OJ 1999 L 110, p. 30), while at the same time protecting the independence of the ECB and of the national central banks, and the confidentiality of certain matters specific to the performance of the ECB’s tasks.

99 Article 2(1) of Decision 2004/258 thus gives any EU citizen, and any natural or legal person residing or having its registered office in a Member State, a right of access to ECB documents, subject to the conditions and limits laid down in that decision.

100 That right is subject to certain limits based on reasons of public or private interest. Specifically, and in accordance with recital 4 thereof, Decision 2004/258 provides, in Article 4, for a system of exceptions authorising the ECB to refuse access to a document where disclosure of that document would undermine one of the interests protected by Article 4(1) and (2) or where that document contains opinions for internal use as part of deliberations and preliminary consultations within the ECB or with national central banks.

101 Since the exceptions to the right of access laid down in Article 4 of Decision 2004/258 derogate from the right of access to documents, they must be interpreted and applied strictly (judgments of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 41, and of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 17).

102 Next, it must be observed that the judgment of 26 April 2018, Espírito Santo Financial (Portugal) v ECB (T‑251/15, not published, EU:T:2018:234), relied on by the applicant in support of the fifth plea (see paragraph 91 above), was set aside by the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117).

103 In the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117), the Court of Justice held that with regard to the exclusive competence conferred on the Governing Council of the ECB, Article 4(1)(a) of Decision 2004/258, read in conjunction with the second sentence of Article 10.4 of Protocol No 4 on the Statute of the European System of Central Banks and of the ECB, annexed to the TEU and TFEU (‘the Statute of the ESCB and of the ECB’), must be interpreted as protecting the confidentiality of the outcome of the proceedings of the Governing Council, without it being required that the refusal to grant access to the documents containing that outcome be subject to the condition that the disclosure thereof undermines the protection of the public interest (judgments of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 43, and of 21 October 2020, ECB v Estate of Espírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 50).

104 The Court of Justice added that pursuant to the first indent of Article 4(1)(a) and Article 7(1) of Decision 2004/258, the Director-General Secretariat of the ECB is required to refuse to grant access to the outcome of the proceedings of the Governing Council, unless the latter has decided to make that outcome public in whole or in part (judgments of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 44, and of 21 October 2020, ECB v Estate of Espírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 51).

105 The Court of Justice concluded from this that sufficient reasons are given for a decision refusing to disclose the outcome of the proceedings of the Governing Council solely by reference to the requirements of the first indent of Article 4(1)(a) of Decision 2004/258 in so far as documents recording the outcome of those proceedings are concerned (judgments of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 46, and of 21 October 2020, ECB v Estate of Espírito Santo Financial Group, C‑396/19 P, not published, EU:C:2020:845, paragraph 53).

106 In response to the Court’s request to comment on the inferences to be drawn from the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117), the applicant acknowledges that that judgment appears to allow the ECB to derogate from the obligation to state reasons for its decisions, in the light of the particular features of the confidentiality of the proceedings of its decision-making bodies arising from the Statute of the ESCB and of the ECB. However, the applicant states that the Court of Justice’s reasoning is limited to ‘documents reflecting the outcome of the proceedings of the ECB’s decision-making bodies’.

107 According to the ECB, supported in that regard by the Commission and Banco Santander, the applicant’s fifth plea must be rejected on the basis of the inferences to be drawn from the judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal) (C‑442/18 P, EU:C:2019:1117). Thus, the ECB submits that it complied with its obligation to state reasons simply by invoking the application of the first indent of Article 4(1)(a) of Decision 2004/258 in order to refuse access to the requested information.

108 It is in the light of those considerations that it is necessary to examine whether the ECB provided sufficient reasons for the second contested decision inasmuch as it refused access to certain information on the basis of the exception laid down in the first indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the confidentiality of the proceedings of the ECB’s decision-making bodies.

109 As the ECB correctly states, the statement of reasons for the second contested decision is confined to the mere reference to the requirements of Article 4(1)(a) of Decision 2004/258 in order to refuse access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided.

110 The applicant is right to state that it follows from the case-law of the Court of Justice cited in paragraphs 103 to 105 above that it is only with regard to documents ‘reflecting the outcome of the proceedings of the Governing Council’ that a refusal to grant access is subject to a duty to state reasons, which may be confined to a mere reference to the requirements of the first indent of Article 4(1)(a) of Decision 2004/258.

111 In the present case, it must be observed that the ECB does not specify, for each type of information to which it refused access on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, the document in which that information is to be found. It merely states, in general terms, that the three types of information to which it refused access on the basis of the exceptions it relied on are to be found in the four documents to which it granted partial access, namely the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’; the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’; the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’; and the minutes of the 447th meeting of the Governing Council of the ECB held by teleconference on 5 June 2017.

112 Of those four documents, the only one clearly intended to record the outcome of the proceedings of the Governing Council of the ECB is the minutes of its 447th meeting held by teleconference on 5 June 2017. In that regard, the ECB explained in Decision LS/PT/2017/66 of 11 August 2017, which was confirmed by the second contested decision, that the decisions of the Governing Council not to oppose the ELA ceiling are recorded in the minutes of that body’s meetings, which, under Article 10.4 of the Statute of the ESCB and of the ECB, are confidential in order to safeguard the independence of the members of the Governing Council and ensure that its decision-making process is effective.

113 After consulting the confidential versions of the four documents concerned, as lodged by the ECB in response to the measure of inquiry referred to in paragraph 60 above, the Court was able to ascertain that those minutes contained only one of the three items of information to which access was refused on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, namely the ELA ceiling. Information relating to the amount of ELA actually granted and the collateral provided was contained in the three other documents to which the ECB refused full access, namely the two letters from the Governor of the Bank of Spain of 5 June 2017 and the Executive Board’s proposal of 5 June 2017.

114 Thus, in accordance with the case-law of the Court of Justice cited in paragraphs 103 to 105 above, the ECB provided sufficient reasons for its refusal to grant access to the ELA ceiling in so far as that information was found in the minutes of the 447th meeting of the Governing Council, since that document reflects the outcome of the proceedings of the Governing Council.

115 However, it is necessary to examine whether the ECB also provided sufficient reasons for its refusal to grant access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided, in so far as that information was contained in the other three documents.

116 When questioned in that regard at the hearing, the ECB stated that it was of the view that the two letters from the Governor of the Bank of Spain and the Executive Board’s proposal are documents enabling the Governing Council to take an informed decision and, as such, are necessarily linked to the proceedings of that body. It follows that the protection of the confidentiality of the outcome of the proceedings of the Governing Council under the first indent of Article 4(1)(a) of Decision 2004/258, read in conjunction with the second sentence of Article 10.4 of the Statute of the ESCB and of the ECB, covers all preparatory documents submitted for the purposes of the Governing Council’s proceedings. According to the ECB, by refusing access to the full text of those documents simply by invoking the requirements of the first indent of Article 4(1)(a) of Decision 2004/258, it complied with its duty to state reasons in line with the case-law of the Court of Justice set out in paragraphs 103 to 105 above.

117 The applicant countered by saying that since it was not in a position to know why the first indent of Article 4(1)(a) of Decision 2004/258 was applied to the redacted information in the letters from the Governor of the Bank of Spain and the Executive Board’s proposal, it was impossible for it to put forward a plea questioning the justification for applying that provision. Specifically, it claimed that the exceptions to the right of access must be interpreted restrictively and that the broad interpretation of the first indent of Article 4(1)(a) of Decision 2004/258, read in conjunction with Article 10.4 of the Statute of the ESCB and of the ECB, as proposed by the ECB, clashes with that rule.

118 It must be stated that the two letters from the Governor of the Bank of Spain and the Executive Board’s proposal predate the meeting of the Governing Council and therefore do not reflect the outcome of the proceedings of the Governing Council. It follows that the second sentence of Article 10.4 of the Statute of the ESCB and of the ECB does not apply to those documents, with the result that the Court of Justice’s reasoning, as set out in paragraphs 103 to 105 above, cannot be applied to them.

119 In addition, it is for the ECB to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the requested document does in fact fall within the sphere covered by the exception relied on and, second, whether the need for protection relating to that exception is genuine (judgments of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 99, and of 26 March 2020, Bonnafous v Commission, T‑646/18, EU:T:2020:120, paragraph 24; also see, by analogy, judgment of 26 April 2005, Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 61).

120 In that regard, it must be observed that Decision 2004/258 contains an exception to the right of access, namely Article 4(3), which expressly refers to the refusal to grant access to documents drafted or received by the ECB for internal use as part of deliberations and preliminary consultations within the ECB (see, to that effect, judgment of 17 December 2020, De Masi and Varoufakis v ECB, C‑342/19 P, EU:C:2020:1035, paragraphs 66 to 79).

121 The failure to state any reasons at all, in both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision, explaining why the refusal to grant full access to the letters from the Governor of the Bank of Spain and the Executive Board’s proposal was covered by the exception laid down in the first indent of Article 4(1)(a) of Decision 2004/258, in so far as those documents contained information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided, prevented the applicant from understanding the reasons for the refusal to grant access to that information and, so the applicant claims, prevented it from raising a plea challenging the justification for applying the first indent of Article 4(1)(a) of Decision 2004/258 to those documents.

122 As explained in paragraph 116 above, it was only at the hearing that the ECB stated that, in its view, since the letters from the Governor of the Bank of Spain and the Executive Board’s proposal were necessary supporting material for the proceedings of the Governing Council, the refusal to grant access to certain information contained in those documents could be justified by simply referring to the requirements of the first indent of Article 4(1)(a) of Decision 2004/258, in accordance with the case-law of the Court of Justice set out in paragraphs 103 to 105 above.

123 It is settled case-law that the statement of reasons must, in principle, be notified to the person concerned at the same time as the decision adversely affecting him or her. The absence of reasoning cannot be legitimised by the fact that the person concerned becomes aware of the reasons for the decision during the procedure before the EU Courts (judgments of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 149; of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 74; and of 10 September 2019, Trasys International and Axianseu – Digital Solutions v EASA, T‑741/17, EU:T:2019:572, paragraph 53).

124 It is therefore appropriate to uphold the plea alleging that the statement of reasons for the second contested decision was inadequate inasmuch as it refused access to information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, in so far as that information was contained in the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’, the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’ and the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’.

125 Before deciding on the consequences of that inadequate statement of reasons for the second contested decision, it is necessary to examine whether the other exceptions relied on by the ECB, the justification for which the applicant calls into question in the second plea, provide a proper foundation for refusing access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided.

(b) Failure to state reasons for the refusal to grant access to the outcome of the vote in the Governing Council

126 On reading the confidential version of the minutes of the 447th meeting of the Governing Council of the ECB held by teleconference on 5 June 2017, the Court noted that the ECB had refused access to an item of information contained in that document which was not included in any of the five categories of information to which access was expressly refused in the second contested decision (see paragraph 82 above). The item of information in question is the outcome of the vote in the Governing Council. It does not concern the ELA ceiling, the amount of ELA actually granted, the collateral provided or Banco Popular’s liquidity situation or capital ratios. The vote cast must be considered to constitute specific information which must be distinguished from information concerning the content of the proceedings prior to that vote.

127 When questioned at the hearing about the lack of any reference to the outcome of the vote, the ECB, supported in that regard by the Commission, replied that although it had not expressly stated that it also refused access to that type of information, its view was that it had provided sufficient reasons for its refusal to grant access to that item of information by invoking the application of the first indent of Article 4(1)(a) of Decision 2004/258 in order to refuse full access to the minutes of the 447th meeting of the Governing Council.

128 The approach suggested by the ECB would involve interpreting the notion of the ‘outcome of the proceedings’ of the Governing Council broadly, in so far as the outcome of the proceedings of the Governing Council would automatically include the outcome of the vote of that body. Such a broad interpretation would, consequently, justify the ECB’s duty to state reasons when refusing access to a document containing the result of the vote in the Governing Council being limited in accordance with the case-law of the Court of Justice set out in paragraphs 103 to 105 above.

129 However, as the applicant rightly submitted at the hearing, such an approach would clearly be at variance with the principle that exceptions to the right of access must be interpreted strictly (see paragraphs 101 and 117 above).

130 Accordingly, the onus was on the ECB to state reasons for applying the first indent of Article 4(1)(a) of Decision 2004/258 to its refusal to grant access to the outcome of the vote in the Governing Council in such a way as to enable the applicant to assess whether it was justified.

131 By failing even to mention the existence of information relating to the outcome of the vote in the Governing Council, the second contested decision is vitiated by a failure to state reasons and it must be annulled in that respect.

D. Second plea in law: infringement of the second and seventh indents of Article 4(1)(a) of Decision 2004/258 in the second contested decision

132 In support of its second plea, the applicant submits that, in the second contested decision, the ECB infringed the second indent of Article 4(1)(a) of Decision 2004/258, relating to the protection of the public interest in the financial, monetary or economic policy of the European Union or of a Member State, and the seventh indent of Article 4(1)(a) of that decision, relating to the protection of the public interest in the stability of the financial system in the European Union or in a Member State, in so far as it wrongly asserted that the disclosure of Banco Popular’s use of ELA in the days preceding its resolution and the disclosure of information relating to its liquidity situation and capital ratios could sap the effectiveness of monetary policy and jeopardise the financial stability of the European Union or of a Member State.

133 Although the applicant concedes that the ECB enjoys a broad discretion in deciding whether the public interest in the financial, monetary or economic policy of the European Union or of a Member State is undermined, it submits that the ECB committed a manifest error of assessment in the present case in so far as the requested documents are not concerned with the financial, monetary or economic policy of the European Union or of a Member State.

134 Thus, first, the applicant did not request information relating to a general policy; it only sought information relating to one particular case, limited to an identified financial institution, namely Banco Popular, covering a fixed period, namely that of the resolution of Banco Popular by the SRB. In accordance with the principle that exceptions to the right of access must be interpreted strictly, the applicant’s application for access should not be construed so broadly as to equate it to an application for access to data relating to the financial, monetary or economic policy of the European Union or of a Member State.

135 Second, the information requested by the applicant does not concern the European Union or a Member State, but rather the liquidity situation of Banco Popular.

136 Third, the information requested is not of a general nature but, on the contrary, is very specific. It is concerned with a clearly defined and circumscribed period, namely the days preceding the resolution of Banco Popular, and relates to Banco Popular’s individual situation. The information examined in the second contested decision, that is, the ELA ceiling, the amount of ELA actually granted, the collateral provided, and Banco Popular’s liquidity situation and capital ratios, do not reveal a general policy of the European Union. Consequently, disclosure of that information would be unlikely to undermine the effectiveness of the monetary policy and financial stability of the European Union.

137 Fourth, the applicant submits that its application for access complies with the principle of proportionality, since it relates solely to information that would enable it to understand the alleged liquidity problems of Banco Popular which led to its resolution.

138 The ECB disputes the applicant’s arguments.

1. The ineffectiveness of the second plea in law

139 The ECB contends that the second plea is ineffective inasmuch as the application refers expressly to the exceptions in the second and seventh indents of Article 4(1)(a) of Decision 2004/258, but the arguments put forward relate solely to the second indent of that provision.

140 In that regard, it must be observed as a preliminary point that the wording of the second plea could indeed have been clearer to make it more readily understandable. Thus, in paragraph 48 of the application, the applicant states that the second contested decision relies on the second and seventh indents of Article 4(1)(a) of Decision 2004/258 in order to refuse access, inter alia, to information ‘relating to the liquidity situation and the capital ratios’. As pointed out in paragraph 85 above, access to that information was refused solely on the basis of Article 4(1)(c) and the first indent of Article 4(2) of Decision 2004/258. The second plea is therefore ineffective inasmuch as it is concerned with that category of information to which access was refused in the second contested decision.

141 Next, as regards whether the second plea raised by the applicant seeks to challenge the application of both the second indent of Article 4(1)(a) of Decision 2004/258 and the seventh indent thereof, it must be held that the applicant’s arguments, as set out in particular in paragraph 55 of the application, clearly seek to call into question the fact that the ECB relied on two exceptions with a very broad political and geographic scope, whereas the requested information was concerned with the very specific case of a single bank. Accordingly, the ECB’s argument that the second plea is ineffective in that regard must be rejected.

142 Lastly, it should be borne in mind that the Court found in paragraph 124 above that as regards information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided, the second contested decision does not contain an adequate statement of reasons, in so far as that information was contained in the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’, the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’ and the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’. The second plea is therefore not ineffective in so far as it is directed at that information.

143 By contrast, the second plea is ineffective in so far as it concerns the refusal to grant access to information relating to the ELA ceiling contained in the minutes of the 447th meeting of the Governing Council. Since the Court has ruled in paragraph 114 above that the second contested decision contains an adequate statement of reasons for the refusal to grant access to that information inasmuch as it was found in the minutes of the 447th meeting of the Governing Council, and since the applicant has not raised a plea seeking to challenge, on the substance, the application by the ECB of the first indent of Article 4(1)(a) of Decision 2004/258, it must be held that the refusal to grant access to information relating to the ELA ceiling contained in the minutes of the 447th meeting of the Governing Council is justified by that exception. That said, for the sake of completeness, the Court will also examine the merits of the second plea so far as concerns that information.

2. The merits of the second plea in law

144 The second plea essentially hinges on two complaints. In the first complaint, the applicant takes issue with the ECB for having considered that the requested information fell within the scope of the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258. By its second complaint, the applicant denies that disclosure of the requested information, in so far as it is concerned solely with the individual situation of Banco Popular, undermines the effectiveness of monetary policy and financial stability.

(a) First complaint: the requested information does not fall within the scope of the second and seventh indents of Article 4(1)(a) of Decision 2004/258

145 In the first complaint, the applicant submits that the exceptions to the right of access must be interpreted and applied strictly, so that an application for access to information relating to Banco Popular should not be interpreted as an application relating to the financial, monetary or economic policy of the European Union or of a Member State or to the stability of the financial system in the European Union or in a Member State. Thus, that information does not concern the European Union or a Member State, but only the liquidity situation of a particular financial institution, namely Banco Popular. It also covers a clearly defined period and relates to a very specific case. That information does not therefore relate to a general policy of the European Union, but only to the individual situation of Banco Popular.

146 As the applicant rightly points out, it has been held that since the exceptions to the right of access laid down in Article 4 of Decision 2004/258 derogate from the right of access to documents, they must be interpreted and applied strictly (judgments of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 41; of 27 September 2018, Spiegel-Verlag Rudolf Augstein and Sauga v ECB, T‑116/17, not published, EU:T:2018:614, paragraph 22; and of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 17).

147 While it is true that the confirmatory application did not seek access to information expressly relating to the monetary policy or financial stability of the European Union or of a Member State, it cannot be inferred from this that the information identified by the ECB as relevant in the light of that application is concerned solely with Banco Popular’s individual situation.

148 It is apparent from both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision that the information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided arose in a very specific regulatory context underpinned by considerations of price stability, monetary policy and financial stability of the European Union, with the result that that information necessarily goes beyond the specific case of a single credit institution.

149 Consequently, as regards information concerning the ELA ceiling and the amount of ELA actually granted, Decision LS/PT/2017/66 of 11 August 2017 describes in some detail the regulatory framework applicable to the grant of ELA, distinguishing between the nature of such credit and standard monetary transactions. The ECB explained in particular that, as a rule, national central banks alone are responsible under national law for the grant of ELA. It then stated that the ECB does not approve or adopt decisions concerning the grant of ELA, but that under Article 14.4 of the Statute of the ESCB and of the ECB, its power is limited to assessing whether the grant of ELA may, in a specific case, interfere with the objectives and tasks of the Eurosystem. In that regard, it noted that for the purposes of exercising that power, a system for the exchange of information between national central banks and the ECB is in place in the Eurosystem. Lastly, the ECB stated that the ex post publication of the ELA ceiling and the amount of ELA actually granted risks diminishing the flexibility that national central banks have to tailor an ELA operation to specific circumstances in future cases. Such publication would create an expectation that the ECB would act in the same way in the future, even where there was no justification for doing so. That might give rise to unwarranted market speculation, which would limit the Governing Council’s ability to assess whether an envisaged ELA operation interferes with the objectives and tasks of the Eurosystem since the Governing Council would also have to take into account the effects of publication on financial stability and, ultimately, on monetary policy.

150 The second contested decision expressly referred to the detailed overview of the regulatory framework applicable to the grant of ELA as explained in paragraph 149 above. The ECB then stated that the ability of national central banks to address the temporary liquidity problems of credit institutions is an essential component of financial stability and a fundamental prerequisite for the effectiveness of monetary policy. In that regard, it pointed to the systemic effects which followed the resolution of Banco Popular and weakened the Spanish financial market and explained that publication of the requested information might revive tensions vis-à-vis financial institutions or give rise to warranted speculation about Banco Santander. Those detrimental effects in Spain could, moreover, owing to the highly interconnected nature of the markets, have adverse consequences in other Member States and, ultimately, jeopardise the financial stability of the European Union as a whole. The second contested decision also refers to Article 127(5) TFEU, which provides that the Eurosystem is to contribute to the stability of the financial system. Lastly, it reproduces the considerations set out in Decision LS/PT/2017/66 of 11 August 2017 concerning the ex post publication of information concerning the ELA ceiling and the amount of ELA actually granted, as well as the effect of such publication on the flexibility that national central banks and the ECB must have in the management of ELA operations.

151 As regards the collateral provided, both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision state that the publication of that information could reduce the effectiveness of ELA operations as a tool for maintaining financial stability. According to the ECB, such publication might deter credit institutions from participating in standard monetary policy operations which, in turn, could undermine the transmission mechanism implementing the ECB’s monetary policy. The publication of information on the collateral provided might also diminish the flexibility that national central banks must have in order to respond effectively to future liquidity crises, since it would create expectations as to the type of collateral that would be accepted in the future. It is essential that national central banks retain their flexibility to consider a wide range of collateral options.

152 In view of the content of Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision, the ECB, having drawn the applicant’s attention to the rules applicable to the grant of ELA and explained the ECB’s role in that regard, provided sufficient details enabling the applicant to understand that the information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided was generated and used in a context guided by considerations which were not confined to the individual situation of Banco Popular, but which essentially concerned the monetary policy and financial stability of the European Union and of Spain.

153 Information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided was included in the four documents concerned precisely for the purposes of the assessment, by the Governing Council of the ECB, of whether the Bank of Spain’s planned ELA operation would interfere with the objectives of the European System of Central Banks (ESCB), of which monetary policy and financial stability form part, in accordance with Article 127(1), (2) and (5) TFEU and Articles 2 and 3 of the Statute of the ESCB and of the ECB. In other words, the rationale behind those documents lies in the very fact that that information relates to considerations which go beyond Banco Popular’s specific situation. As the ECB rightly points out, information concerning the ELA ceiling and the amount of ELA actually granted reveals the ECB’s position as to the marginal amount of ELA which may be granted without running the risk of frustrating the objectives of the European Union’s monetary policy.

154 In the light of the foregoing, it must be concluded that the ECB did not infringe the principle that the exceptions to the right of access provided for in Decision 2004/258 must be interpreted strictly in finding that information concerning the ELA ceiling, the amount of ELA actually granted and the collateral provided fell within the scope of the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258.

155 The first complaint of the second plea must therefore be rejected.

(b) Second complaint: the refusal to grant access was not intended actually and specifically to protect the public interests at issue

156 By its second complaint, the applicant claims that the ECB committed a manifest error of assessment regarding whether disclosure of the requested information could specifically and actually impair the effectiveness of the monetary policy and financial stability of the European Union or of a Member State.

157 As the applicant rightly points out, it has been held that the ECB must be recognised as enjoying a broad discretion for the purpose of determining whether the disclosure of documents relating to the fields covered by a number of the exceptions laid down in Decision 2004/258 is liable to undermine the public interest at issue.

158 As regards the second and seventh indents of Article 4(1)(a) of Decision 2004/258, the existence of such discretion was expressly recognised in several judgments, including those of 29 November 2012, Thesing and Bloomberg Finance v ECB (T‑590/10, not published, EU:T:2012:635, paragraphs 43 and 44); of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB (T‑376/13, EU:T:2015:361, paragraph 53); and of 27 September 2018, Spiegel-Verlag Rudolf Augstein and Sauga v ECB (T‑116/17, not published, EU:T:2018:614, paragraph 42).

159 That broad discretion was based, by analogy with the case-law relating to Article 4(1)(a) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), on the finding that the particularly sensitive and essential nature of the interests protected by Article 4(1)(a) of Decision 2004/258, combined with the fact that access must be refused by the institution, under that provision, if disclosure of a document to the public would undermine those interests, confers on the decision which must thus be adopted by the institution a complex and delicate nature which calls for the exercise of particular care (judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 44; also see, by analogy, judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 35; of 27 November 2019, Izuzquiza and Semsrott v Frontex, T‑31/18, EU:T:2019:815, paragraph 64; and of 25 November 2020, Bronckers v Commission, T‑166/19, EU:T:2020:557, paragraph 34).

160 Furthermore, the recognition that the ECB enjoys a broad discretion was also guided by the fact that the criteria set out in Article 4(1)(a) of Decision 2004/258 are very general (judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 43; also see, by analogy, judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 36).

161 According to the case-law, the consequence of recognising that the ECB enjoys such discretion is that the EU Courts’ review of legality in that regard must be limited to verifying whether the procedural rules and the obligation to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers (see judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 53 and the case-law cited; judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 54).

162 In addition, given the limited scope of the review conducted by the EU Courts, the ECB’s compliance with its obligation to provide a statement of reasons takes on even more fundamental importance. Indeed, only in this way can the EU Courts verify whether the factual and legal elements upon which the exercise of the power of assessment depends were present (see judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 54 and the case-law cited; judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 54).

163 In the present case, it cannot be claimed that the ECB manifestly erred in taking the view that disclosure of the ELA ceiling, the amount of ELA actually granted and the collateral provided could actually and specifically undermine the monetary policy and financial stability of the European Union or of a Member State.

164 It must be noted that in both Decision LS/PT/2017/66 of 11 August 2017 and the second contested decision, the ECB established a specific causal link between the potential disclosure of the information at issue and the specific harm to the protected public interests.

165 Thus, as regards the ELA ceiling and the amount of ELA actually granted, the ECB explained that disclosure of that information could undermine the financial stability and monetary policy of the European Union because, since the Spanish market had been weakened following the resolution of Banco Popular, such disclosure might revive tensions vis-à-vis financial institutions and fuel unwarranted speculation as regards the situation of Banco Santander. Those detrimental effects on the Spanish market could then have spillover effects in other Member States’ markets, which could have adverse consequences for the financial stability of the European Union. Moreover, the ex post publication of the information concerned would considerably reduce the ability of national central banks and the ECB to manage ELA operations in a flexible way in the future. Market participants’ awareness of that specific information would create an expectation that the same approach would be followed where there was no justification for doing so. Such an expectation could also result in unwarranted speculation among market participants, which might hamper the ability of the ECB’s Governing Council to assess whether an envisaged ELA operation interferes with the objectives and tasks of the Eurosystem, since the Governing Council would also have to factor in the possible effects of publishing the parameters of the operation concerned on financial stability and monetary policy in future cases.

166 Furthermore, as regards the collateral provided, the ECB explained that that information is an indicator of the stress level faced by a credit institution in so far as such collateral is potentially collateral that is not regarded as being eligible for use in standard monetary policy operations. The possible publication of that information might deter credit institutions from having recourse to ELA or from requesting it in good time for fear of market exposure. Market participants might also be tempted to request additional or different collateral in exchange for operating with the institution concerned or might stop lending money to that institution, which would pose a genuine threat to financial stability in the Member State concerned. Disclosure of that information, even ex post, could also have the effect of limiting the ability of national central banks to consider a wide range of possible collateral in a flexible way, since knowledge of the approach they have endorsed in the past would create expectations as to the type of collateral that might be accepted in the future. That would curtail their ability to respond effectively to future liquidity problems and would undermine the effectiveness of ELA as a tool for maintaining financial stability.

167 It must be observed that the applicant has not put forward any specific arguments, let alone evidence, capable of calling into question the merits of the ECB’s reasoning set out in paragraphs 165 and 166 above. By merely invoking the fact that the requested information relates solely to the situation of Banco Popular over a short, fixed period, the applicant does not call into question the ECB’s reasoning that disclosure of the information concerned could have adverse consequences for the financial stability and monetary policy of the European Union in the future.

168 In the light of the foregoing, it must be held that the ECB did not commit a manifest error of assessment in finding that the disclosure of information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided would specifically and actually undermine the public interest in the monetary policy and financial stability of the European Union or of Spain.

169 Accordingly, the second complaint and, therefore, the second plea in its entirety must be dismissed.

170 Given that the refusal to grant access to information relating to the ELA ceiling, the amount of ELA actually granted and the collateral provided is lawfully based on the second and seventh indents of Article 4(1)(a) of Decision 2004/258, the finding made in paragraph 124 above that the second contested decision does not contain an adequate statement of reasons inasmuch as it refused access to that information on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, in so far as that information was contained in the letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’, the follow-up letter from the Governor of the Bank of Spain to the President of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance’ and the proposal from the Executive Board to the Governing Council of the ECB of 5 June 2017 entitled ‘Emergency liquidity assistance request from Banco de España’, does not give grounds to annul the second contested decision in that respect.

E. First plea in law: infringement of Article 4(1)(c) of Decision 2004/258 in the contested decisions

171 The first plea revolves around three complaints alleging that (i) the ECB wrongly applied a general presumption of confidentiality on the basis of Article 4(1)(c) of Decision 2004/258; (ii) the conditions laid down in the judgment of 19 June 2018, Baumeister (C‑15/16, EU:C:2018:464; ‘the judgment in Baumeister’), are not satisfied; and (iii) the exemptions from the principle of confidentiality, provided for in the third subparagraph of Article 53(1) of Directive 2013/36 and Article 84(6) of Directive 2014/59 apply.

172 Before examining the arguments raised in the first plea, it should be borne in mind first of all that the ECB invoked the application of Article 4(1)(c) of Decision 2004/258 in all three contested decisions. In the first contested decision, the ECB relied on that provision in order to refuse access to the document containing an overview of the daily balance (positive or negative) of deposits, that is to say both withdrawals and deposits, and information relating to the liquidity coverage capacity of Banco Popular from 3 April 2017. In the second contested decision, the ECB redacted information relating to Banco Popular’s liquidity situation and capital ratios in the letters from the Governor of Spain and the Executive Board’s proposal, inter alia, on the basis of Article 4(1)(c) of Decision 2004/258. The third contested decision relies on the application, in particular, of that provision in order to refuse access to the FOLTF assessment and the documents that Banco Popular sent to the ECB and the Bank of Spain in the context of the SSM between 1 and 6 June 2017.

173 It must be observed that the second contested decision also contains a refusal to grant access to other information, namely the ELA ceiling, the amount of ELA granted and the collateral provided, which was not based on Article 4(1)(c) of Decision 2004/258. As the Court found in its examination of the second plea, the refusal to grant access to that information is lawfully based on the second and seventh indents of Article 4(1)(a) of Decision 2004/258.

1. First complaint: the ECB wrongly applied a general presumption of confidentiality on the basis of Article 4(1)(c) of Decision 2004/258

174 In its first complaint, the applicant submits that, in the three contested decisions, the ECB wrongly relied on the application of a general presumption of confidentiality in order to refuse access to the requested documents. According to the applicant, such a presumption, which is based on the requested documents being protected by an obligation of professional secrecy on the part of the EU institutions, does not exist in the present case.

175 Although the applicant concedes that the application of general presumptions of confidentiality in certain specific cases has been accepted in case-law, it argues that that case-law cannot be transposed to the present case since the duty of professional secrecy applies to all the institutions under Article 339 TFEU, so that, if the ECB’s logic were to be followed, any document of an EU institution would always be covered by a general presumption based precisely on that duty. That would render meaningless the principle of transparency and the right of access to documents as provided for in Article 41 of the Charter.

176 The ECB contends that a general presumption of confidentiality applies in the present case. It refers, in that regard, to the case-law of the Court of Justice and the General Court, in which the existence of such presumptions has been recognised in the areas of State aid, mergers and concerted practices. According to the ECB, the underlying logic of that case-law, namely the need to guarantee the smooth functioning of procedures in those areas and ensure that their objectives are not jeopardised by preventing the right of access from being used to circumvent the specific rules providing for limited access to the file, also applies to the area of prudential supervision.

177 The ECB submits that unlike competition law procedures, which start and end with a decision, the ECB’s prudential banking supervision is ongoing in nature. Thus, the various risks posed by credit institutions subject to prudential supervision are continuously assessed on the basis of information regularly provided by them. In addition, while the general presumptions of confidentiality accepted in other areas essentially protect the integrity of specific administrative procedures, the ECB’s confidentiality obligations are intended moreover to protect the functioning of the prudential banking supervision mechanism as a whole and, therefore, the stability of the financial markets.

178 In the light of those considerations, the ECB maintains that Article 4(1)(c) of Decision 2004/258 should be interpreted as providing a level of protection for its prudential supervision files that is at least equivalent to the protection which the Court of Justice has recognised in the area of merger control.

179 In that context, the ECB disputes the applicant’s argument that any document of an EU institution is always covered by an obligation of professional secrecy because Article 339 TFEU is applicable to all EU institutions. The ECB contends that its duty of professional secrecy in the exercise of its prudential supervisory tasks reflects the particular nature of its supervisory activities. That duty is, moreover, clearly defined and specific in terms of its scope ratione personae. It therefore differs from the general obligation of professional secrecy enshrined in Article 339 TFEU. Furthermore, the obligations of professional secrecy imposed by Article 339 TFEU and Article 37 of the Statute of the ESCB and of the ECB are not an absolute bar to disclosure, but prevent only the improper disclosure of confidential information.

180