Case T-442/18: Action brought on 18 July 2018 — Aeris Invest v ECB
Date: 2018-07-18
Institutions: General Court
Subjects: EU banking union, access to EU information, bank, banking system, confidentiality, credit institution, judicial review, professional secret, right to justice








C_2018311EN.01001501.xml










3.9.2018   


EN


Official Journal of the European Union


C 311/15






Action brought on 18 July 2018 — Aeris Invest v ECB
(Case T-442/18)
(2018/C 311/16)
Language of the case: Spanish

Parties


Applicant: Aeris Invest Sàrl (Luxembourg, Luxembourg) (represented by: S. Chimenos Minguella and G. Ferrer Gonzálvez, lawyers)

Defendant: European Central Bank

Form of order sought

The applicant claims that the General Court should:






—


Annul European Central Bank Decisions LS/MD/18/141 and LS/PT/2018/9 of 8 May and 9 February 2018, respectively;










—


Order the European Central Bank to pay the costs.





Pleas in law and main arguments

The present application seeks the annulment of the European Central Bank (‘ECB’) Decision LS/MD/18/141 of 8 May 2018 concerning the confirmatory application for access to ECB documents, together with the previous European Central Bank Decision LS/PT/2018/9 of 9 February 2018 concerning the application for access to ECB documents.
In support of the action, the applicant relies on five pleas in law.






1.


First plea in law, alleging a failure to give adequate reasons for the ECB’s decisions refusing access to the documentation concerned, as those decisions failed to give due consideration to the aims pursued by the Community legislature in establishing the right of natural and legal persons to access documents of the European institutions, in the context of a transparent procedure and in the light of the principles of good governance and citizen participation. Moreover, the arguments put forward by the ECB are general in nature. Similarly, the ECB has failed to take into account the fact that the disclosure of the documents requested can in no way affect the smooth progress of the decision-making procedure in the context of the resolution of credit institutions. Not only has the specific resolution procedure been concluded, but it is now under judicial review, so that the refusal of access makes that review more difficult for the Court itself. Lastly, the decisions fail to take into account the fact that access to the documentation requested is for the sole purpose of exercising the right to an effective remedy laid down in Article 47 of the Charter of Fundamental Rights of the European Union.










2.


Second plea in law, alleging that the contested decisions infringe Article 4(1)(c) of Decision ECB/2004/3 on public access to European Central Bank documents, in so far as those decisions refuse the applicant access to the information requested on the ground that the documents are, in whole or in part, covered by a general presumption of non-accessibility as they are confidential documents covered by the professional secrecy applicable to the institutions. That general presumption of non-accessibility is not expressly provided for in the sector-specific legislation applicable and, if it did exist, it would not be applicable, as the exceptions to the right of access cannot be interpreted broadly and on the basis of analogy.










3.


Third plea in law, alleging that the contested decisions breach Article 4(1)(c) of Decision ECB/2004/3, in so far as those decisions refuse the applicant access to the information requested on the ground that the documents are, in whole or in part, covered by the professional secrecy applicable to the institutions, when they are required in judicial proceedings and such refusal prevents or impedes the exercise of the public judicial function.










4.


Fourth plea in law, alleging that the contested decisions breach Article 4(1)(a), second and sixth indents, of Decision ECB/2004/3, in so far as they assert that the disclosure of the information requested may prejudice the banking system in general.










5.


Fifth plea in law, alleging that the contested decisions breach Article 4(2), first indent, of Decision ECB/2004/3, in asserting that the disclosure of the documents and information requested may affect the business interests of Banco Santander and have an impact on future inspections.