Judgment of the General Court (Sixth Chamber) of 26 April 2018 –

Espírito Santo Financial (Portugal) v ECB

(Case T‑251/15)

(Access to documents — Decision 2004/258/EC — Documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA — Implied refusal to grant access — Express refusal to grant access — Partial refusal to grant access — Exception relating to the confidentiality of the proceedings of the ECB’s decision-making bodies — Exception relating to the financial, monetary or economic policy of the European Union or of a Member State — Exception relating to the stability of the financial system in the European Union or in a Member State — Exception relating to the protection of commercial interests — Exception relating to opinions intended for internal use — Obligation to state reasons)

1. European Union—Institutions—Right of public access to documents—Decision 2004/258 of the European Central Bank—Time-limit prescribed for replying to a confirmatory request for access—Extension—Conditions (Decision of the European Central Bank 2004/258, Art. 8(1) and (2)) (see para. 29)

2. Actions for annulment—Natural or legal persons—Interest in bringing proceedings—Action brought against an implicit rejection decision of an institution concerning an application for access to documents—Decision withdrawn due to the adoption of a subsequent express decision by the institution—Applicant having brought, in the alternative, an action against the latter decision—No longer any (legal) interest in bringing proceedings (Art. 263 TFEU; Decision of the European Central Bank 2004/258) (see paras 30-35)

3. Acts of the institutions—Statement of reasons—Obligation—Scope—Assessment of the duty to state reasons by reference to the circumstances of the case (Art. 296, second para., TFEU) (see paras 46, 47)

4. EU institutions—Right of public access to documents—Decision 2004/258 of the European Central Bank—Exceptions to the right of access to documents—Decision refusing access—Obligation to state reasons—Scope—Request for access to the decisions taken by the Governing Council and to the minutes recording them—Decision of refusal—Insufficient statement of reasons (Art. 296, second para., TFEU; Decision of the European Central Bank 2004/258, Art. 4) (see paras 54-56, 73-81, 124)

5. EU institutions—Right of public access to documents—Decision 2004/258 of the European Central Bank—Exceptions to the right of access to documents—Protection of the public interest concerning the financial, monetary or economic policy of the EU or a Member State or the financial situation of the ECB or national central banks—Protection of the public interest concerning the stability of the financial system in the EU or in a Member State—Discretion of the ECB (Art. 296, second para., TFEU; Decision of the European Central Bank 2004/258, Art. 4(1)(a)) (see paras 90,187)

6. EU institutions—Right of public access to documents—Decision 2004/258 of the European Central Bank—Exceptions to the right of access to documents—Decision refusing access—Obligation to state reasons—Scope—Requirement that the risk be of a specific nature and foreseeable (Decision of the European Central Bank 2004/258, Art. 4(1)) (see paras 91, 93-97, 139-144)

7. Acts of the institutions—Statement of reasons—Obligation—Scope—Decision upholding an initial decision (Art. 296, second para., TFEU) (see para. 180)

Re:

Application pursuant to Article 263 TFEU for the annulment, on the one hand, of the ECB’s decision of 1 April 2015 refusing in part to disclose certain documents relating to its decision of 1 August 2014 concerning Banco Espírito Santo SA and, on the other hand, of the implied decision refusing to grant access to those documents.

Operative part

The Court:

1. Annuls the decision of the European Central Bank (ECB) of 1 April 2015 partially refusing to disclose certain documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA, in so far as it refuses to disclose the amount of credit indicated in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014 and the information redacted from the proposals of the Executive Board of the ECB of 28 July and 1 August 2014;

2. Dismisses the action as to the remainder;