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 26 April 2018, Espírito Santo Financial (Portugal) v ECB (T‑251/15, not published, EU:T:2018:234; ‘the judgment under appeal’), by which the General Court annulled the ECB’s decision of 1 April 2015 partially refusing to grant access to certain documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA (‘the decision at issue’).
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 the Decision (EU) 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 of the Treaty and Article 7 of the Statute, 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 of that decision provides: ‘1. 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 Regulation (EU) No 1024/2013, …’
4 In accordance with Article 7(1) of that decision, ‘[w]ithin 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.’
5 Espírito Santo Financial (Portugal), SGPS, SA (‘ESF’) is a holding company incorporated under Portuguese law which was one of the main shareholders in Banco Espírito Santo SA (‘BES’).
6 From May 2014, BES had recourse to Eurosystem credit operations and, from 17 July 2014, started to receive emergency liquidity provided by Banco de Portugal (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 proposal of 28 July 2014’), the Governing Council decided, on the same day, to maintain BES’ access to monetary policy credit instruments (‘the decision of 28 July 2014’). The amount of credit provided to BES, its branches and subsidiaries through Eurosystem credit operations was capped at the level at which it stood on 28 July 2014 (‘the amount of credit in question’). That decision was recorded in minutes which also referred to that amount.
9 Acting on a proposal from the Executive Board of the ECB of 1 August 2014 (‘the proposal of 1 August 2014’), the Governing Council decided on the same day, inter alia, to suspend access by BES to monetary policy credit instruments on grounds of prudence, and ordered that BES repay all of the credit granted to it within the framework of the Eurosystem (‘the decision of 1 August 2014’). That decision was recorded in minutes, which also referred to the ceiling on the provision of emergency liquidity that the Bank of Portugal could grant to BES.
10 In that context, the Portuguese authorities decided to make BES the subject of a resolution procedure and, on 27 October 2014, insolvency proceedings were initiated against ESF.
11 By letter of 5 November 2014, ESF requested that the ECB grant it access to the decision of 1 August 2014 and to all documents in the ECB’s possession which were related to that decision.
12 By letter of 7 January 2015, the ECB responded to that request and granted ESF full or partial access to a number of documents sought by the latter, including partial access to extracts of the minutes recording the decisions of 28 July and 1 August 2014, and to the proposals of 28 July and 1 August 2014.
13 By letter of 4 February 2015, ESF sent a confirmatory application to the ECB, in which it expressed the view that the reasons given by the ECB as justification for the refusal to grant full access to certain of the documents requested were too vague and general.
14 Furthermore, it requested disclosure, in particular, of the amounts which had been deleted from the extracts of the minutes recording the decisions of 28 July and 1 August 2014 provided to it, that is to say, the amount of credit in question and the amount of the ceiling on the provision of emergency liquidity that could be granted to BES by the Bank of Portugal, as well as certain information that had been redacted from the proposals of 28 July and 1 August 2014.
15 On 5 February 2015, the ECB stated that a response to the confirmatory application would be provided by no later than 4 March 2015. However, on 5 March 2015, the ECB extended the time limit for responding to that application.
16 By its decision at issue of 1 April 2015, the ECB disclosed to ESF additional information contained in the proposals of 28 July and 1 August 2014. As to the remainder, it confirmed the refusal to disclose the amounts redacted from the extracts of the minutes recording the decisions of the Governing Council of 28 July and 1 August 2014, and certain passages removed from the proposals of 28 July and 1 August 2014.
17 By application lodged at the Registry of the General Court on 14 May 2015, ESF brought an action seeking annulment of the ECB's implied decision of 4 March 2015, annulment of the decision at issue, and an order requiring the ECB to pay the costs.
18 The application for annulment of the decision at issue was based on four pleas in law. The first three pleas concerned the amounts which had been omitted from the extracts of the minutes recording the decisions of 28 July and 1 August 2014 provided to the applicant and respectively alleged (i) breach of the duty to state reasons, (ii) breach of the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258, and (iii) breach of the first indent of Article 4(2) of that decision. The fourth plea concerned information which had been redacted from the proposals of 28 July and 1 August 2014 provided to the applicant.
19 The ECB contended that the action should be dismissed and that ESF should be ordered to pay the costs.
20 In the first place, the General Court rejected the application for annulment of the implied decision. In the second place, it rejected the complaints raised against the ECB’s refusal to disclose the amount of the ceiling on the provision of emergency liquidity, finding that that refusal was justified on the basis of the second and seventh indents of Article 4(1)(a) of Decision 2004/258. In the third place, with regard to the ECB’s refusal to disclose the amount of credit in question, the General Court found that the decision at issue was vitiated by an inadequate statement of reasons in relation to the exception laid down in the first indent of Article 4(1)(a) of Decision 2004/258, and held that the second and third pleas in law respectively alleging (i) breach of the second and seventh indents of Article 4(1)(a) of Decision 2004/258 and (ii) breach of the first indent of Article 4(2) of that decision were well founded in so far as they concerned that amount. In the fourth place, the General Court upheld the first part of the fourth plea relating to information redacted from the proposals of 28 July and 1 August 2014.
21 Consequently, in point 1 of the operative part of the judgment under appeal, the General Court annulled the decision at issue in so far as the ECB had refused to disclose the amount of credit in question and the information redacted from the proposals of 28 July and 1 August 2014. It dismissed the action as to the remainder and ordered ESF and the ECB each to bear their own respective costs.
22 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 action at first instance in so far as concerns the ECB’s refusal to disclose the amount of credit in question; - in the alternative, refer the case back to the General Court for it to give judgment; and - order ESF to pay two thirds of the costs and the ECB to pay one third of the costs.
23 ESF submits that the Court should: - dismiss the appeal; and - order the ECB to pay the costs of the proceedings.
24 In support of its appeal, the ECB relies on a single ground, submitting that the General Court erred in law in its interpretation of Article 10.4 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank (‘Protocol on the ESCB and the ECB’) and of the first indent of Article 4(1)(a) of Decision 2004/258.
25 The ECB submits that the General Court erred in law when it found, in paragraphs 124 and 161 of the judgment under appeal, read in conjunction with paragraphs 54 to 56 and 75 to 81 thereof, that the Governing Council’s discretion with regard to the disclosure of its minutes must be exercised in the conditions and limits of Decision 2004/258. It submits that the General Court thus wrongly found that the ECB was required to provide a statement of reasons explaining how disclosure of the information contained in the minutes of the proceedings of meetings of the Governing Council, which recorded the latter’s decisions, could specifically and actually undermine the protection of the public interest as regards the confidentiality of the proceedings of the ECB’s decision-making bodies.
26 The ECB submits that Article 4(1)(a) of Decision 2004/258 must be interpreted in accordance with 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 meetings of the Governing Council, including in so far as those minutes reflect the outcome of deliberations.
27 The ECB also 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. The Governing Council’s discretion cannot, the ECB submits, be limited by Decision 2004/258, which confines itself to reaffirming the principle of confidentiality in the first indent of its Article 4(1)(a).
28 The ECB submits, furthermore, that Article 10.4 of that protocol expressly provides that only the Governing Council itself can decide to disclose its own minutes, whereas Decision 2004/258 places the issue of publication of ECB documents in the hands of the Director-General Secretariat and the Executive Board.
29 The ECB takes the view that it is not required to provide an explanation as to why the disclosure of minutes of the proceedings of meetings of the Governing Council could specifically and actually undermine the public interest as regards the confidentiality of the Governing Council’s proceedings. The ECB acknowledges that it is subject to the general obligation to state reasons for its decisions, and that it is thus required to explain that certain information requested is contained in those minutes and therefore comes within the scope of Article 10.4 of the protocol and of the first indent of Article 4(1)(a) of Decision 2004/258. It is submitted that there is, however, a presumption of confidentiality laid down in Article 10.4 of that protocol, whereby the disclosure of minutes of proceedings would undermine the independence and effectiveness of the ECB’s decision-making process.
30 ESF submits that the appeal essentially replicates the arguments set out by the ECB before the General Court. Consequently, it states that its position is the same as that previously adopted before the General Court.
31 As a preliminary point, it should be recalled that 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) of the Rules of Procedure of the Court of Justice that an appeal must state 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 (judgment of 29 July 2019, Bayerische Motoren Werke and Freistaat Sachsen v Commission, C‑654/17 P, EU:C:2019:634, paragraph 71).
32 Even though the ECB submits that point 1 of the operative part of the judgment under appeal - which annuls the decision at issue in so far as it refused to disclose (i) the amount of credit in question and (ii) the information redacted from the proposals of the ECB’s Executive Board of 28 July and 1 August 2014 - should be set aside, it has failed to set out any grounds or arguments concerning the General Court’s annulment of that decision in so far as it refuses to grant access to the information redacted from those proposals of the ECB’s Executive Board. Accordingly, that part of the appeal must be regarded as inadmissible.
33 With regard to the part of the appeal that concerns the General Court’s examination of the decision at issue in so far as that decision refuses to disclose the amount of credit in question, it should be observed that, in paragraph 80 of the judgment under appeal, the General Court found that, under the second sentence of Article 10.4 of the Protocol on the ESCB and the ECB, the Governing Council may decide to make the outcome of its deliberations public. The General Court then found that the decisions taken by the Governing Council and, consequently, the minutes transcribing those decisions do not enjoy absolute protection in so far as concerns their disclosure, and that the Governing Council’s discretion in that regard must be exercised in the conditions and limits laid down by Decision 2004/258.
34 Moreover, in paragraphs 122 and 123, the General Court found, in particular, that the amount of credit in question was indicated in the minutes recording the decision of 28 July 2014 and that, for the purpose of refusing to disclose that amount, the ECB had relied on the first indent of Article 4(1)(a) of Decision 2004/258 and on Article 10.4 of the Protocol on the ESCB and the ECB.
35 In paragraph 124 of the judgment under appeal, the General Court found that the ECB had failed to give sufficient reasons for the decision at issue, as it ought to have (i) explained why the amount not disclosed to the applicant, when giving partial access to the document requested by the latter, came within the area covered by the exception provided for by the first indent of Article 4(1)(a) of Decision 2004/258 and (ii) provided a statement of reasons that would have made it possible to understand and verify how access to that information would, specifically and actually, have undermined the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies.
36 It should be noted that such a requirement to state reasons necessarily follows from an interpretation of the first indent of Article 4(1)(a) of Decision 2004/258, according to which the confidentiality of the outcome of the Governing Council’s deliberations is guaranteed only if its disclosure would undermine the protection of the public interest.
37 Admittedly, the wording of the first indent of Article 4(1)(a) of that decision appears to be open to an interpretation such as that given by the General Court, in that it provides that the ECB is to refuse access to a document where disclosure would undermine the protection of the public interest as regards the confidentiality of the proceedings of the ECB’s decision-making bodies, which include the Governing Council.
38 In that connection, it should be noted that Article 7(1) of that decision gives the ECB’s Director-General Secretariat the choice between granting access to the document requested or, in a written reply, stating the reasons for total or partial refusal.
39 Accordingly, the interpretation on which the General Court’s finding is based means that it is for that director to check whether disclosure of the outcome of the deliberations would undermine the public interest as regards the confidentiality of those proceedings and, if that is not the case, to grant access to the document recording that outcome.
40 However, 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 16 April 2015, Parliament v Council, C‑540/13, EU:C:2015:224, paragraph 38 and the case-law cited).
41 As the ECB has submitted, 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, as is clear from paragraph 38 of the present judgment, Article 7(1) of Decision 2004/258 gives the ECB’s Director-General Secretariat the choice between granting access to the document requested or, in a written reply, stating the reasons for total or partial refusal to grant that access.
42 It is submitted that, in those circumstances, that director is vested with the power to decide whether access to the outcome of deliberations should be granted, thereby encroaching on the exclusive competence conferred on the Governing Council by virtue of the second sentence of Article 10.4 of that protocol.
43 Accordingly, in order to safeguard that competence, the view must be taken 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 safeguarding the confidentiality of the outcome of deliberations of the Governing Council, without it being necessary that the refusal to grant access to documents containing that outcome be subject to the condition that the disclosure thereof undermines the protection of the public interest.
44 Consequently, pursuant to the first indent of Article 4(1)(a) and to 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.
45 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.
46 The statement of reasons for refusing to disclose the outcome of the deliberations of the Governing Council can thus be confined to reliance on the first indent of Article 4(1)(a) of Decision 2004/258 in respect of documents reflecting the outcome of those deliberations.
47 Consequently, the General Court erred in finding, in paragraph 124 of the judgment under appeal, that the ECB ought to have (i) explained why the amount not disclosed to the applicant, when giving partial access to the document requested, came within the area covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258 and (ii) provided a statement of reasons that would have made it possible to understand and verify how access to that information would, specifically and actually, have undermined the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies. By so ruling, the General Court erred in law.
48 Accordingly, point 1 of the operative part of the judgment under appeal must be set aside in so far as, by that point, the General Court annulled the decision at issue in so far as, by that decision, the ECB refused to disclose the amount of credit in question.
49 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.
50 That is the position in the present case.
51 To the extent that, as is clear, in particular, from paragraph 47 of the present judgment, the General Court’s examination of the first plea in law raised at first instance, in the part relating to the refusal to disclose the amount of credit in question, is vitiated by an error of law, it is necessary to analyse that plea, along with the second plea raised at first instance in the complaint alleging infringement of the first indent of Article 4(1)(a) of Decision 2004/258.
52 By its first plea raised at first instance, in the part relating to the refusal to disclose the amount of credit in question, the applicant claims that the ECB disregarded the obligation to state reasons when it refused to grant access to that information on the basis of the first indent of Article 4(1)(a) of Decision 2004/258.
53 By its second plea, the applicant challenges the validity of the reliance on the first indent of Article 4(1)(a) of that decision in order to justify the refusal to disclose the amount of credit in question. In particular, it maintains that that amount could not be deemed to form part of the proceedings of the ECB’s decision-making bodies, and that the information sought did not appear to be confidential, as the Bank of Portugal had disclosed a value which a disclosure of excerpts from the Governing Council’s decisions would have served to confirm.
54 In this connection, it is settled case-law 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 duty 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 (judgment of 11 December 2018, Weiss and Others, C‑493/17, EU:C:2018:1000, paragraphs 31 and 33 and the case-law cited).
55 In the light of paragraph 46 of the present judgment, it must be held that the statement of reasons provided by the ECB allowed the applicant to understand that the ECB was relying on the confidentiality enjoyed by the outcome of deliberations in order to refuse to disclose the amount of credit in question, and that it was a document which reflected that outcome. It must therefore be held that the decision at issue contained a statement of reasons which was adequate for legal purposes.
56 Moreover, as regards the complaints as to the merits, suffice it to note that it is clear from paragraph 43 of the present judgment that the confidentiality of the outcome of the deliberations of the Governing Council is guaranteed without it being necessary that that outcome must reflect those deliberations. Furthermore, while the confidentiality of the outcome of the deliberations may be relied upon on condition that 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 that amount. It follows that the ECB did not infringe the first indent of Article 4(1)(a) of Decision 2004/258 when it relied on that provision for the purpose of refusing to disclose the amount of credit in question.
57 Consequently, the first and second pleas in law relied upon at first instance must be rejected, in so far as they challenge the ECB’s refusal, based on the first indent of Article 4(1)(a) of Decision 2004/258, to disclose the amount of credit in question.
58 Under Article 184(2) of the Rules of Procedure of the Court of Justice, 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 costs. Under Article 138(1) of those Rules, 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.
59 Furthermore, Article 138(3) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1), 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 of Justice may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
60 In the present case, the ECB's appeal has been, in part, upheld and, in part, declared inadmissible and, since the action brought before the General Court by ESF has been upheld, further to examination by the Court of Justice, only as regards the refusal to grant access to the information redacted from the Executive Board’s proposals of 28 July and 1 August 2014, ESF must be ordered to bear its own costs and to pay one third of those incurred by the ECB in relation both to the proceedings at first instance and to those on appeal. The ECB is to bear the remainder of its own costs.