Case T‑376/13

Versorgungswerk der Zahnärztekammer Schleswig-Holstein

v

European Central Bank (ECB)

‛Access to documents — Decision 2004/258/EC — Exchange Agreement of 15 February 2012 between Greece and the ECB and the national central banks in the Eurosystem — Annexes A and B — Partial refusal to grant access — Public interest — Monetary policy of the European Union and of a Member State — Internal finances of the ECB and the national central banks in the Eurosystem — Stability of the financial system in the European Union’

Summary — Judgment of the General Court (Ninth Chamber), 4 June 2015

EU institutions — Right of public access to documents — Decision 2004/258 of the European Central Bank — Exceptions to the right of access to documents — Strict interpretation and adoption — Requirement that the institution should examine the documents specifically and individually — Scope

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 — Scope — Application to an agreement for exchanging government bonds between the Member State concerned, the ECB and the national central banks of the Eurosystem — Included

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 — Judicial review — Limits — General statement of reasons in order to protect sensitive information — Lawfulness

As the addressee of a decision refusing access to documents pursuant to Decision 2004/258, on public access to European Central Bank documents, as amended by Decision 2011/342, the person concerned is entitled to bring an action against that decision. In that regard, the applicant’s right of action against the said decision is not affected by its application potentially being inadmissible before the European Central Bank. (see para. 20)

See the text of the decision. (see para. 23)

See the text of the decision. (see para. 32, 33)

A decision of the European Central Bank refusing access to documents pursuant to Decision 2004/258, on public access to European Central Bank documents, as amended by Decision 2011/342, which enables the applicant to understand the legal basis on which the Bank has founded its refusal to grant access and the reasons why it has taken the view that disclosure of the content of the documents would have undermined the monetary policy of the European Union and the Member States, its internal finances and those of the Eurosystem National Central Banks and the stability of the financial system, within the meaning of the second, third and seventh indents of Article 4(1)(a) of Decision 2004/258, satisfies the requirements of the obligation to state reasons under Article 296(2) TFEU. In that regard, the Bank is under no obligation to provide any further explanation of the expressions ‘malfunctioning of relevant market segments’ and ‘transmission mechanism’. It is public knowledge that, since the beginning of 2010, the European Union has been in a sovereign debt crisis and tensions have emerged on certain sovereign debt markets in the euro area, inter alia due to increasing unease about the viability of public finances given very high budget deficits, particularly in Greece. It is also well known that those tensions have spread to other segments of the financial markets and that the Bank has announced the Securities Markets Programme in order to increase the effectiveness of the transmission mechanism of the monetary policy. Moreover, as the decision was addressed to an applicant which purchased Greek Government bonds in its capacity as an institutional investor, the latter must be assumed to understand the meaning of the term ‘transmission mechanism’ or to be capable of finding it out easily through a search on the Bank’s website, for example. (see paras 39, 40, 50)

In the matter of public access to documents, the ECB enjoys a wide discretion for the purpose of determining whether the public interest as regards the financial, monetary or economic policy of the European Union or a Member State or the internal finances of the ECB or the Eurosystem NCBs and the stability of the financial system in the European Union or in a Member State, within the meaning of the second, third and seventh indents of Article 4(1)(a) of Decision 2004/258, as amended by Decision 2011/342, might be undermined by the disclosure of information contained in the documents to which access is sought. Accordingly, review by the EU judicature of the legality of such a decision must be limited to verifying whether the procedural rules and the duty 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. In that regard, given the limited scope of the review conducted by the EU judicature, the European Central Bank’s compliance with its obligation to provide a statement of reasons takes on even more fundamental importance. Only in that way can the EU judicature verify whether the factual and legal elements upon which the exercise of the power of assessment depends were present. However, in the case of an application for access to the annexes of an Exchange agreement between the Hellenic Republic, the ECB and the Eurosystem NCBs, whereby the ECB and the Eurosystem NCBs exchanged Greek Government bonds held by them in return for new Greek Government bonds, the obligation to state reasons does not preclude the Bank from basing its reasoning on considerations which takes account of hypothetical behaviour in which market participants might engage following disclosure of the information contained in the aid annexes and the effects such behaviour might have on future interventions. In those circumstances, the Bank’s recourse to a general statement of reasons is justified by the concern not to reveal information protection of which is provided for by the exceptions laid down in Decision 2004/258. (see paras 53-55)

The right of access to ECB documents is subject to certain limits based on reasons of public or private interest. More specifically, the second and third indents of Article 4(1)(a) of Decision 2004/258, as amended, provide for exceptions to access to a document where its disclosure would undermine protection of the public interest as regards the financial, monetary or economic policy of the European Union or a Member State or the internal finances of the ECB or the Eurosystem NCBs. Refusal by the ECB of access to the annexes of an agreement for exchanging government bonds between a Member State, the ECB and the Eurosystem NCBs concluded in the context of a market intervention programme already terminated, and based on the consideration that disclosure of the information contained in those annexes could lead market participants to predict the strategy, tactics and method which might be employed by it and by the Eurosystem NCBs as part of future interventions, is justified under the second and third indents of Article 4(1)(a) of Decision 2004/258. When an intervention involves the purchase of government bonds by the ECB and by the Eurosystem NCBs, there is a risk that the market participants will base their conduct on information about those types of purchases in the past in order to identify, rightly or wrongly, preferences of the ECB and the Eurosystem NCBs for certain types of government bonds which they believe will hold true irrespective of the objective pursued through the purchase of government bonds. In such a scenario, disclosure of the information contained in the annexes to the exchange agreement could affect the effectiveness of the ECB’s intervention measures and its internal finances or those of the Eurosystem NCBs. On the one hand, there is a risk that it would lead to higher prices for the types of bonds identified by market participants as liable to be purchased by the ECB and the Eurosystem NCBs. The latter might be led either to purchase those types of bonds at higher prices or to purchase other bonds not fitting in with their preferences. On the other hand, the ECB and the Eurosystem NCBs could be led to purchase bonds of a type other than the category targeted, in order to encourage market participants to invest in all of the bonds in that category, instead of concentrating on certain types of bonds. Moreover, since the ECB enjoys very broad discretion as to the choice and determination of the measures it adopts in carrying out its tasks, where it examines whether access to documents is liable to affect the monetary policy of the European Union, its internal finances or those of the Eurosystem NCBs, it is entitled to take account of all measures it might be inclined to adopt in future and is not required to take account only of measures stating the condition referred to in press releases concerning its market intervention programme. (see paras 72, 78, 80, 87, 96, 97, 102)

Since the exceptions to the right of access provided for in Article 4 of Decision 2004/258, as amended, are a departure from the right of access to documents provided for in Article 2(1), they must be interpreted and applied narrowly. Thus, if the ECB decides to refuse access to a document which it has been asked to disclose under Article 4(1) of that decision, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception provided for in that provision and upon which it is relying. In that regard, under the rules laid down in Article 4 of Decision 2004/258, as amended, the ECB is required to compare the existing situation, in which access to the documents has not (yet) been granted, with a hypothetical situation, in which access to the documents has been granted. Therefore, the mere fact that, in its decision to refuse in part to grant access, the Bank takes account of the hypothetical situation in which it would grant access to documents to which access has been requested is not in itself liable to cast doubt on the correctness of its reasoning. (see paras 73, 75)