Banque centrale européenne (BCE) v Espírito Santo Financial Group SA.
Date: 2020-10-21
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).
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.
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).
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).
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).
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).
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).
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).