CELEX: 62019CJ0396
Language: en
Date: 2020-10-21
Title: Judgment of the Court (Sixth Chamber) of 21 October 2020.#Banque centrale européenne (BCE) v Espírito Santo Financial Group SA.#Appeal – Decision 2004/258/EC – Article 4(1)(a) – Protocol on the Statute of the European System of Central Banks and of the European Central Bank (ECB) – Article 10.4 – Access to ECB documents – Decision of the Governing Council – Confidentiality of the meetings and deliberations of ECB bodies – Outcome of deliberations – Partial refusal of access – Undermining of the protection of the public interest – Obligation to state reasons.#Case C-396/19 P.

JUDGMENT OF THE COURT (Sixth Chamber)
21 October 2020 (*)
(Appeal – Decision 2004/258/EC – Article 4(1)(a) –Protocol on the Statute of the European System of Central Banks and of the European Central Bank (ECB) – Article 10.4 – Access to ECB documents – Decision of the Governing Council – Confidentiality of the meetings and deliberations of ECB bodies – Outcome of deliberations – Partial refusal of access – Undermining of the protection of the public interest – Obligation to state reasons)
In Case C‑396/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 May 2019,

European Central Bank (ECB), represented by F. Malfrère and M. Ioannidis, acting as Agents, and by H.-G. Kamann, Rechtsanwalt,
appellant,
the other party to the proceedings being:

Insolvent Estate of Espírito Santo Financial Group SA, established in Luxembourg (Luxembourg), represented by D. Duarte de Campos and S. Estima Martins, advogados,
applicant at first instance,
THE COURT (Sixth Chamber),
composed of L. Bay Larsen (Rapporteur), President of the Chamber, M. Safjan and N. Jääskinen, Judges,
Advocate General: M. Bobek,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following

Judgment

1        By its appeal, the European Central Bank (ECB) seeks to have set aside the judgment of the General Court of the European Union of 13 March 2019, Espírito Santo Financial Group v ECB (T‑730/16, not published, EU:T:2019:161; ‘the judgment under appeal’), by which the General Court annulled the ECB decision of 31 August 2016 refusing in part to disclose certain documents relating to its  decision of 1 August 2014 concerning Banco Espírito Santo SA (‘the decision at issue’).
 Legal context 

2        Recital 3 of Decision 2004/258/EC of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), as amended by Decision (EU) 2015/529 of the European Central Bank of 21 January 2015 (OJ 2015 L 84, p. 64), (‘Decision 2004/258’) is worded as follows: 
‘Wider access should be granted to ECB documents, while at the same time protecting the independence of the ECB and of the national central banks (NCBs) foreseen by Article 108 [EC] and Article 7 [of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank (OJ 1992 C 191, p. 68), in the version annexed to the EC Treaty], and the confidentiality of certain matters specific to the performance of the ECB’s tasks. In order to safeguard the effectiveness of its decision-making process, including its internal consultations and preparations, the proceedings of the meetings of the ECB’s decision-making bodies are confidential, unless the relevant body decides to make the outcome of its deliberations public.’

3        Article 4(1) of that decision provides:
‘The ECB shall refuse access to a document where disclosure would undermine the protection of:
(a)      the public interest as regards:
–        the confidentiality of the proceedings of the ECB’s decision-making bodies, the Supervisory Board or other bodies established pursuant to [Council] Regulation (EU) No 1024/2013 [of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63)],
…’

4        In accordance with Article 7(1) of that decision, ‘within 20 working days from the receipt of the application, or on receipt of the clarifications requested in accordance with Article 6(2), the Director-General Secretariat of the ECB shall either grant access to the document requested and provide access in accordance with Article 9 or, in a written reply, state the reasons for total or partial refusal and inform the applicant of their right to make a confirmatory application in accordance with paragraph 2’.
 Background to the dispute 

5        The Insolvent Estate of Espírito Santo Financial Group SA (‘ESF’) is a company incorporated under Luxembourg law which directly and indirectly held a part of the share capital of Banco Espírito Santo SA (‘BES’).

6        From May 2014, BES came under financial pressure and its liquidity position deteriorated, inter alia as a result of difficulties faced by other companies in the same group. In order to deal with that situation, BES had recourse to Eurosystem credit operations and, from 17 July 2014, started to receive emergency liquidity provided by Banco de Portugal (the Bank of Portugal).

7        On 23 July 2014, the ECB’s Governing Council (‘the Governing Council’) decided not to oppose, until its next ordinary meeting, the granting of emergency liquidity assistance to BES up to a certain limit.

8        Acting on a proposal from the Executive Board of the ECB of 28 July 2014, the Governing Council decided, on the same day, to maintain the access of BES to ‘monetary policy credit instruments’, while ‘freezing’ the existing credit provided to BES, its branches and its subsidiaries through such instruments ‘at the current level’ (‘the decision of 28 July 2014’). As a consequence, the amount of credit provided to those entities through Eurosystem credit operations was capped at the level of 28 July 2014. That decision was recorded in minutes, which also referred to the amount of the credit in question.

9        Acting on a proposal from the Executive Board of the ECB of 1 August 2014, the Governing Council decided, on the same day, inter alia, to suspend access by BES and its branches, with effect from 4 August 2014, to monetary policy credit instruments, on grounds of prudence, and ordered BES to repay, no later than the same date, all the credit granted to it within the framework of the Eurosystem. That decision was recorded in minutes, which also indicated the ceiling for the provision of emergency liquidity that the Bank of Portugal could grant to BES.

10      EFS has been the subject of insolvency proceedings since 10 October 2014. 

11      By letter of 7 April 2016, ESF requested that the ECB grant it access to the decision of the Governing Council of 1 August 2014, and to any other documents issued by any of the ECB bodies, whether prior or subsequent to that decision, as well as to any communications exchanged with the Bank of Portugal which were in any way related to that decision.

12      By letter of 10 June 2016, the ECB responded to that request and granted ESF full or partial access to a number of documents requested by ESF, including partial access to extracts of the minutes recording the decisions of the Governing Council of 28 July and 1 August 2014 (‘the minutes at issue’), and to the proposals of the Executive Board of the ECB of 28 July and 1 August 2014 (‘the proposals at issue’).

13      By letter of 6 July 2016, ESF sent a confirmatory application to the ECB in which it requested, inter alia, disclosure of the amounts which had been deleted from the extracts of the minutes recording the decisions at issue provided to it, namely, as regards the decision of 28 July 2014, the amount of the credit provided to BES, its branches and its subsidiaries through Eurosystem monetary policy instruments, and, as regards the decision of the Governing Council of 1 August 2014, the amount of the ceiling for emergency liquidity that could be granted to BES by the Bank of Portugal.

14      By the decision at issue, the ECB confirmed,  on the basis of Article 4 of Decision 2004/258, the refusal to disclose the amounts redacted in the minutes at issue or the passages removed from the proposals at issue.
 The action before the General Court and the judgment under appeal

15      By application lodged at the Registry of the General Court on 13 October 2016, ESF brought an action seeking annulment of the decision at issue and an order requiring the ECB to pay the costs.

16      That application was based on six pleas in law. The first two pleas sought annulment of the decision at issue, in that it refused to disclose to ESF the amounts redacted in the minutes at issue. Those two pleas alleged, respectively, infringement of the obligation to state reasons and infringement of the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258. The four remaining pleas sought annulment of the decision at issue in that the ECB thereby refused to disclose to ESF the information that had been redacted in the proposals at issue. 

17      The ECB claimed that the action should be dismissed and ESF ordered to pay the costs.

18      In the judgment under appeal, the General Court, first, rejected the arguments put forward by ESF against the decision at issue that the ECB had thereby refused to disclose the amount of the ceiling concerned, on the ground that that refusal could validly be founded on the provisions of the seventh indent of Article 4(1)(a) of Decision 2004/258. 

19      Second, with regard to the refusal to disclose the amount of the credit concerned, the General Court found that the reasons given for the decision at issue were not sufficient in so far as the exceptions laid down in the first and second indents of Article 4(1)(a) of Decision 2004/258 were concerned. Having found that the ECB could not refuse to disclose the amount of the credit concerned on the basis of the exception laid down in the seventh indent of Article 4(1)(a) of that decision, the General Court annulled the decision at issue in so far as it refused to grant ESF access to that information. 

20      Lastly, the General Court found that insufficient reasons had been given for the refusal to disclose the information redacted in the proposals at issue and it consequently annulled the decision at issue to that extent also.
 Forms of order sought by the parties to the appeal 

21      By its appeal, the ECB submits that the Court should:
–        set aside point 1 of the operative part of the judgment under appeal;
–        dismiss the application at first instance also in so far as concerns the ECB’s refusal to disclose the amount of credit in the extracts of the minutes recording the decision of 28 July 2014;
–        in the alternative, refer the case back to the General Court; and
–        order ESF to pay two  thirds and the ECB one third of the costs.

22      ESF submits that the Court should:
–        dismiss the appeal as totally unfounded; and
–        order the parties each to bear their own costs. 
 The appeal 

23      In support of its appeal, the ECB relies on a single ground of appeal, alleging that the General Court erred in law in paragraphs 111 and 138 of the judgment under appeal, read in conjunction with paragraphs 39, 53 to 55 and 58 to 63 of that judgment, as a result of an incorrect  interpretation of Article 10.4 of the Protocol on the Statute of the European System of Central Banks and of the European Central Bank (‘the Protocol on the ESCB and the ECB’), and the first indent of Article 4(1)(a) of Decision 2004/258.
 Admissibility 

24      As a preliminary point, it should be observed that, according to settled case-law of the Court, it follows from the second subparagraph of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of that appeal (see, inter alia, judgment of 7 May 2020, BTB Holding Investments and Duferco Participations Holding v Commission, C‑148/19 P, EU:C:2020:354, paragraph 35 and the case-law cited).

25      In its appeal, the ECB submits that point 1 of the operative part of the judgment under appeal, in which the decision at issue is annulled in so far as it refused to disclose, first, the amount of credit concerned and, second, the information redacted in the proposals at issue, should be set aside. However, it should be observed that the ECB does not set out any ground or argument against the judgment under appeal inasmuch as it annuls the decision at issue in that it refused to disclose to ESF the information redacted in those proposals.

26      In those circumstances, the appeal is inadmissible in so far as it concerns annulment of the refusal to grant access to the information redacted in the proposals at issue.
 Substance 

 Arguments of the parties

27      By its single ground of appeal, which is directed against paragraphs 111 and 138 of the judgment under appeal, read in conjunction with paragraphs 39, 53 to 55 and 58 to 63 of that judgment, the ECB submits that the General Court erred in law in finding that the discretion of the Governing Council concerning the disclosure of its minutes had to be exercised under the conditions set by Decision 2004/258. The General Court, it is argued,  thus wrongly found that the ECB had to provide a statement of reasons explaining how access to the information contained in the minutes  at issue could specifically and actually undermine the public interest as regards the confidentiality of the proceedings of the ECB’s decision-making bodies.

28      The ECB submits that Article 4(1)(a) of Decision 2004/258 must be interpreted in the light of the first sentence of Article 10.4 of the Protocol on the ESCB and the ECB, which lays down the general principle that the proceedings of meetings of the Governing Council are confidential, since that confidentiality covers the entirety of the minutes of those meetings, including in so far as those minutes record the outcome of deliberations of that council.

29      In addition, the ECB submits that it is apparent from paragraphs 40 to 42 of the judgment of 19 June 2018, Baumeister (C‑15/16, EU:C:2018:464), that certain EU regimes of information disclosure pursue a different objective to that 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), which is to give the public a right of access to documents of the institutions of the European Union which is as wide as possible. Confidentiality is thus the rule in relation to minutes of the proceedings of the Governing Council, while public disclosure is the exception. 

30      The ECB submits that the second sentence of Article 10.4 of the Protocol on the ESCB and the ECB enshrines an exception to the general principle of confidentiality, by allowing the Governing Council, by means of a positive and discretionary decision, to make the outcome of its deliberations public. That discretion which the Governing Council has cannot be limited by Decision 2004/258, which confines itself to reaffirming the principle of confidentiality in the first indent of Article 4(1)(a) thereof.

31      The ECB submits, moreover, that Article 10.4 of that protocol expressly provides that only the Governing Council itself can decide to disclose its own minutes of proceedings, and that Decision 2004/258 must be interpreted as meaning that it is then for the Director-General Secretariat and the Executive Board to disclose to an applicant those minutes of proceedings the disclosure of which has been duly authorised. 

32      The ECB takes the view that it is not required to give reasons as to why the disclosure of minutes of the Governing Council might, specifically and actually, undermine the public interest as regards the confidentiality of the Governing Council’s proceedings. The ECB is, it is true, subject to the general obligation to state reasons for its decisions. However, where the request for access relates to certain information contained in those minutes, the ECB, it submits, would state sufficient reasons for refusing that access by confining itself to indicating that that information comes within the scope of Article 10.4 of the Protocol on the ESCB and the ECB and of the first indent of Article 4(1)(a) of Decision 2004/258. It is submitted that Article 10.4 of that protocol in fact establishes a presumption of confidentiality, according to which the disclosure of the minutes of proceedings of the Governing Council would undermine the independence and effectiveness of the ECB’s decision-making process.

33      The ECB submits that, contrary to the finding made by the General Court in paragraphs 62 and 63 of the judgment under appeal, to which paragraph 111 of that judgment refers, should the ECB have based its decision on the existence of such a general presumption of confidentiality, the adoption of a decision partially to disclose specific parts of a decision would have no effect on the obligation to state reasons relating to the refusal to disclose the other parts of that decision. 

34      If the Court of Justice were to find that, in paragraph 53 of the judgment under appeal, to which paragraph 111 of that judgment refers, there is a ground supporting that judgment, the ECB submits that, in those paragraphs read together, the General Court distorted the content of the decision at issue, read in conjunction with the decision of 10 June 2016. 

35      The ECB submits that it clearly relied on the principle of confidentiality set out in Article 10.4 of the Protocol on the ESCB and the ECB as a whole, established equally in the two sentences of that provision. 

36      It states that it also indicated that its reasoning was based, in fine, on the principle of confidentiality applicable to the outcome of deliberations of the Governing Council, that is, to its decisions. Thus, the alleged lack of clarity for which the ECB was criticised by the General Court is, it is submitted, the result of an incorrect formal distinction between the confidentiality of the meetings of the Governing Council and that associated with the outcome of those meetings.

37      ESF submits that the appeal brought by the ECB is limited to the amount of credit concerned.

38      It states that it rejects the arguments which the ECB puts forward in its appeal. Furthermore, ESF submits that its own claims are the same as those presented before the General Court, and that it agrees fully with  paragraph 111 of the judgment under appeal, read in conjunction with paragraphs 38 to 40 and 53 to 63 of that judgment cited therein, as well as with paragraph 138 of that judgment. 
 Findings of the Court

39      By its appeal, the ECB criticises the judgment under appeal in so far as it annulled the decision at issue on the ground that that institution had failed to state sufficient reasons for its refusal to disclose the amount of credit concerned to ESF. 

40      In that connection, it should be observed, in the first place, that paragraph 111 of the judgment under appeal refers, inter alia, to paragraph 53 of that judgment as regards that question. In paragraph 53, the General Court found that, with regard to the exception set out in the first indent of Article 4(1)(a) of Decision 2004/258, it was not possible to ascertain clearly, on the basis of the reasons given to ESF, which were drawn, inter alia, from Article 10.4 of the Protocol on the ESCB and ECB, whether the ECB had relied on the confidentiality of the proceedings of the Governing Council or on that of the decisions taken by that body, in order to justify its refusal to disclose the information concerned.

41      It is settled case-law of the Court that, although the statement of reasons for an EU measure, which is required by the second paragraph of Article 296 TFEU, must show clearly and unequivocally the reasoning of the author of the measure in question, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review, that statement of reasons is not required to go into every relevant point of fact and law.  The question whether the obligation to state reasons has been satisfied must, moreover, be assessed by reference not only to the wording of the measure but also to its context and the whole body of legal rules governing the matter in question (see, inter alia, judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 54 and the case-law cited). 

42      Consequently, in the present case, in support of its claim directed at paragraph 53 of the judgment under appeal, to which paragraph 111 of that judgment refers, the ECB rightly refers to a passage of the decision at issue relating to non-disclosure, in particular, of the precise amount of overall credit provided through monetary policy instruments, in which the Executive Board stated that ‘decisions made by the Governing Council are formally recorded in the Governing Council proceedings representing the outcome of the relevant deliberations. …  Article 10.4 of the [Protocol on the ESCB and ECB] establishes, at the level of EU primary law, the confidentiality of the proceedings of the Governing Council … [That provision] grants the Governing Council full discretion as to whether to make public the outcome of its deliberations. As explained in recital 3 of [Decision 2004/258], this is precisely the purpose of the exception provided  by the first indent of Article 4(1)(a) of [that] decision’. 

43      Moreover, the General Court observed, in the final sentence of paragraph 61 of the judgment under appeal, to which paragraph 111 of that judgment refers, that the amount of credit concerned was set out in extracts of the minutes recording, not the conduct of the proceedings of the Governing Council, but rather the outcome of those proceedings only. Furthermore, it is apparent from point 1 of the operative part of that judgment that the General Court took the view that those extracts of the minutes recorded the decision of 28 July 2014.

44      Thus, whilst setting out, in paragraphs 57 and 58 of the judgment under appeal, considerations relating to the rules governing access to documents which record the proceedings of the Governing Council, it is clear from, inter alia, paragraphs 59 to 61 of that judgment, to which paragraph 111 of that judgment refers, that the General Court carried out the examination of the grounds for refusing to disclose the amount concerned by considering that it was a decision taken by the Governing Council recorded in minutes of proceedings.

45      It follows that (i) it was clear that the document to which the ECB refused access was a decision of the Governing Council, and (ii) that institution relied on the confidentiality from which, in its view, such a document had to benefit, on the ground that it was intended to record that type of decision and to set out the outcome of the proceedings of the Governing Council.

46      Consequently, contrary to the General Court’s finding in paragraph 53 of the judgment under appeal, to which paragraph 111 of that judgment refers, the decision at issue set out, clearly and unequivocally, the reasoning of the author of that decision, which allowed ESF to ascertain the reasons for the refusal to disclose the amount of credit concerned and the General Court to exercise its power of review, with the result that the General Court erred in ruling that the reasons given for that decision were not sufficient. 

47      It is necessary, in the second place, to examine the soundness of the reason set out in paragraph 111 of the judgment under appeal, according to which the ECB should have, first, explained the reasons why the amount of credit concerned, which was not disclosed to ESF when it was granted partial access to the document that it sought, came within the area covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258 and, second, provided a statement of reasons that would have made it possible to understand and verify how, specifically and actually, access to that information would have undermined the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies.

48      In that regard, it is settled case-law of the Court  that the wording of secondary EU legislation must be interpreted, in so far as possible, in a manner consistent with the provisions of the Treaties (judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 40 and the case-law cited).

49      Admittedly, as the ECB points out, the second sentence of Article 10.4 of the Protocol on the ESCB and the ECB provides that it is for the Governing Council to decide whether to make the outcome of its deliberations public, whereas Article 7(1) of Decision 2004/258 gives the ECB’s Director-General Secretariat the choice between granting access to the document requested or stating, in a written reply, the reasons for total or partial refusal to grant that access.

50      With regard to the exclusive competence conferred on the Governing Council, it must be stated that Article 4(1)(a) of Decision 2004/258, read in conjunction with the second sentence of Article 10.4 of the Protocol on the ESCB and the ECB, must be interpreted as protecting the confidentiality of the outcome of deliberations 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 (judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 43).

51      Consequently, pursuant to the first indent of Article 4(1)(a) and Article 7(1) of that decision, the Director-General Secretariat of the ECB is required to refuse to grant access to the outcome of deliberations of the Governing Council, unless the latter has decided to make that outcome public in whole or in part (judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 44).

52      Furthermore, it should be noted that such an interpretation is corroborated by the wording of recital 3 of Decision 2004/258, which states that the proceedings of the meetings of the ECB’s decision-making bodies are confidential, unless the relevant body decides to make the outcome of its deliberations public (judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 45).

53      Thus, contrary to the General Court’s ruling in paragraph 111 of the judgment under appeal, 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 (see, by analogy, judgment of 19 December 2019, ECB v Espírito Santo Financial (Portugal), C‑442/18 P, EU:C:2019:1117, paragraph 46).

54      Consequently, the General Court erred in finding, in paragraph 111 of the judgment under appeal, that the ECB should have, first, explained the reasons why the amount of credit concerned, which was not disclosed to ESF on account of partial access being granted to the document requested by the latter, came within the area covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258 and, second, provided a statement of reasons that would have made it possible to understand and verify how, specifically and actually, access to that information would have undermined the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies.

55      In the third and final place, the ECB submits that, in paragraphs 62 and 63 of the judgment under appeal, read in conjunction with paragraph 111 thereof, the General Court considered the case where, in order to justify the non-disclosure of the information concerned, the ECB based its decision on the existence of a general presumption that disclosure of the minutes of the proceedings of the Governing Council would breach the confidentiality of proceedings of the ECB’s decision-making bodies. It is submitted that the General Court inferred from this that, in so far as the ECB had partially disclosed to ESF the extracts of the minutes containing the information concerned, and therefore carried out, in practice, an individual and specific examination of the document concerned by the request for access, it was also required to provide specific justification with regard to the exception laid down in the first indent of Article 4(1)(a) of Decision 2004/258. 

56      It is not necessary to examine whether that argument is well founded  since it cannot result in the judgment under appeal being set aside to a greater degree than that resulting from the reasoning set out in paragraphs 46 and 54 of the present judgment.

57      It follows from all of the foregoing that the General Court erred in law by ruling, in paragraph 111 of the judgment under appeal, that the ECB had failed to fulfil its obligation to state reasons in support of its decision refusing disclosure of the amount of credit concerned to ESF.

58      The appeal must be allowed to that extent and, accordingly, point 1 of the operative part of the judgment under appeal must be set aside in that it annuls the decision at issue to the extent to which the ECB thereby refused to disclose the amount of credit concerned.
 The action before the General Court 

59      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded the Court of Justice is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits. 

60      That is the position in the present case.

61      In so far as the General Court’s examination of the first plea in law raised by ESF at first instance, in the part relating to the obligation to state reasons for the refusal to disclose the amount of credit concerned on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, is vitiated by an error of law, it is necessary to examine that plea as well as the second plea raised at first instance, inasmuch as it alleges infringement of the first indent of Article 4(1)(a) of that decision. By the latter head of claim, ESF argues, in particular, that the information relating to the amount of credit concerned could not be deemed to be part of the proceedings of the ECB’s decision-making bodies, with the result that the information sought was not confidential as the Bank of Portugal had disclosed a value which a disclosure of excerpts from the Governing Council’s decisions served to confirm.

62      As is clear from paragraphs 43 and 55 of the present judgment, it should be observed that the statement of reasons provided by the ECB allowed ESF to understand that the ECB relied on the confidentiality enjoyed by the outcome of deliberations in order to refuse to disclose the amount of credit in question, and that the case concerned a document which reflected that outcome. It must therefore be found that the decision at issue contained, to that extent, a statement of reasons which was to the requisite legal standard.

63      Moreover, as is clear from paragraph 52 of the present judgment, the confidentiality of the outcome of proceedings of the Governing Council is guaranteed without it being necessary that the refusal to grant access to the documents disclosing that outcome be subject to the condition that such disclosure would infringe the protection of the public interest. Furthermore, while the confidentiality of the outcome of proceedings may be relied upon where that outcome has not been made public by the ECB, the fact that an approximate figure for the amount of credit in question had been published by the Bank of Portugal is not, per se, of such a nature as to require the ECB to disclose the precise amount. It follows that the ECB did not err in law by basing its refusal to disclose the amount of credit concerned on the first indent of Article 4(1)(a) of Decision 2004/258.

64      Consequently, the first and second pleas put forward by ESF at first instance must be rejected, in so far as they are directed at the ECB’s refusal, based on the first indent of Article 4(1)(a) of Decision 2004/258, to disclose to it the amount of credit concerned. 
 Costs

65      Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. In accordance with Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 

66      Article 138(3) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, further provides that, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party. 

67      In the present case, the appeal brought by the ECB is, in part, allowed and, in part, declared inadmissible, and the action brought before the General Court by ESF has been dismissed, following an examination thereof by the Court of Justice. ESF is  to be ordered to bear its own costs and to pay half of those incurred by the ECB in the proceedings both at first instance and on appeal. The ECB is to bear half of its own costs. 
On those grounds, the Court (Sixth Chamber) hereby:
1.      Sets aside point 1 of the operative part of the judgment of the General Court of the European Union of 13 March 2019, Espírito Santo Financial Group  v ECB (T‑730/16, not published, EU:T:2019:161), in so far as the General Court annulled the decision of the European Central Bank (ECB) of 31 August 2016 partially refusing to disclose certain documents relating to the ECB decision of 1 August 2014 concerning Banco Espírito Santo SA in that, by that decision, the ECB refused to disclose the amount of credit set out in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014; 

2.      Sets aside point 3 of the operative part of the judgment of the General Court of the European Union of 13 March 2019, Espírito Santo Financial Group v ECB (T‑730/16, not published, EU:T:2019:161), in so far as it ruled on costs; 

3.      Dismisses the appeal as to the remainder; 

4.      Dismisses the action for annulment brought by the Insolvent Estate of Espírito Santo Financial Group SA in so far as it seeks annulment of the European Central Bank (ECB) decision of 31 August 2016 partially refusing to disclose certain documents relating to the ECB decision of 1 August 2014 concerning Banco Espírito Santo SA in that, by that decision, the ECB refused to disclose the amount of credit set out in the extracts from the minutes recording the decision of the Governing Council of the ECB of 28 July 2014; 

5.      Orders the Insolvent Estate of Espírito Santo Financial Group SA to bear its own costs and to pay half of those incurred by the European Central Bank in the proceedings both at first instance and on appeal; 

6.      Orders the European Central Bank to bear half of its own costs incurred in the proceedings both at first instance and on appeal. 

Bay Larsen

Safjan

Jääskinen

Delivered in open court in Luxembourg on 21 October 2020.

A. Calot Escobar
 
L. Bay Larsen

Registrar
 
      President of the Sixth Chamber

*      Language of the case: English.