MeSoFa v ECB (Access to documents - 'Failing or likely to fail' assessment of Sberbank banka - Judgment) [2024] EUECJ T-790/22 (06 November 2024)

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( Access to documents - Decision 2004/258/EC - ‘Failing or likely to fail’ assessment of Sberbank banka - Refusal to grant access - Obligation to state reasons - Exception relating to the protection of the confidentiality of information that is protected as such under EU law - Concept of ‘confidential information’ - Exception relating to the protection of commercial interests )

MeSoFa Vermögensverwaltungs AG, formerly Sber Vermögensverwaltungs AG, initially Sberbank Europe AG, established in Vienna (Austria), represented by O. Behrends, lawyer,

European Central Bank (ECB), represented by D. Báez Seara and M. Ioannidis, acting as Agents,

composed of K. Kowalik-Bańczyk, President of the Chamber, E. Buttigieg and G. Hesse (Rapporteur), Judges,

having regard to the measure of inquiry of 18 March 2024 and the response of the ECB lodged at the Registry of the General Court on 28 March 2024,

1 By its action under Article 263 TFEU, the applicant, MeSoFa Vermögensverwaltungs AG, formerly Sber Vermögensverwaltungs AG, initially Sberbank Europe AG, seeks the annulment of Decision LS/CL/2022/218 of the European Central Bank (ECB) of 21 September 2022 refusing to grant full access to the ‘failing or likely to fail’ assessment of Sberbank banka d.d. (‘the FOLTF assessment’), within the meaning of Article 18(1)(a) and (4)(c) of Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ 2014 L 225, p. 1) (‘the contested decision’).

2 Before its banking licence was terminated on 15 December 2022, the applicant was a credit establishment established in Austria under the direct prudential supervision of the European Central Bank (ECB) in accordance with 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). Before the adoption, on 1 March 2022, of a resolution decision (see paragraph 6 below), the applicant was also the majority shareholder of Sberbank banka d.d. (‘Sberbank Slovenia’), a credit institution established in Slovenia, in which it held 99.99% of the shares.

3 Following Russia’s invasion of Ukraine on 24 February 2022, the European Union and the United States imposed substantial economic sanctions on Russia. Those sanctions affected the reputation of Sberbank Slovenia, a member of a banking group belonging to the Russian State, which triggered a wave of deposit withdrawals worsening its liquidity position.

4 On 27 February 2022, the ECB, after consulting the Single Resolution Board (SRB), made the FOLTF assessment in accordance with the second subparagraph of Article 18(1) of Regulation No 806/2014.

5 On 28 February 2022, the SRB published on its website a press release announcing that, following the FOLTF assessment, it decided, that same day, that Sberbank Slovenia was failing or likely to fail following a rapid and significant deterioration of that establishment’s liquidity situation. Also on that same day, information about the FOLTF assessment was conveyed in a press release published on the ECB’s website.

6 On 1 March 2022, taking the view that the conditions laid down in Article 18(1) of Regulation No 806/2014 had been met, the SRB decided to place Sberbank Slovenia under resolution. In particular, the SRB decided to transfer the entirety of the shares of Sberbank Slovenia to Nova Ljubljanska banka d.d. The resolution scheme was approved by the European Commission on the same day.

7 On 10 June 2022, the SRB published a public version of the resolution scheme concerning Sberbank Slovenia. The ECB also published a public version of the FOLTF assessment.

8 On 30 June 2022, the applicant lodged an application for access to the FOLTF assessment with the ECB (‘the application for access of 30 June 2022’). That application was based on Article 6(1) of ECB Decision 2004/258/EC of 4 March 2004 on public access to European Central Bank documents (OJ 2004 L 80, p. 42), as amended most recently by ECB Decision (EU) 2015/529 of 21 January 2015 (OJ 2015 L 84, p. 64) and on Article 41(2)(b) and Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

9 By email of 27 July 2022, the ECB informed the applicant that it was examining that application in two parallel procedures, one based on Decision 2004/258 and the other on Article 22(2) of Regulation No 1024/2013, read in conjunction with Article 32(1) of ECB Regulation (EU) No 468/2014 of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism (SSM) between the European Central Bank and national competent authorities and with national designated authorities (OJ 2014 L 141, p. 1).

10 By the same email, the ECB informed the applicant that it considered that it did not have the right to access the supervisory file of another establishment, including the FOLTF assessment concerning that establishment. The ECB then stated that it could not grant the applicant access to the requested document, namely the FOLTF assessment, pursuant to Article 22(2) of Regulation No 1024/2013 and Article 32(1) of Regulation No 468/2014 which concern access to ECB supervisory files.

11 On the basis of Decision 2004/258, the ECB adopted Decision LS/PS/2022/42 of 27 July 2022 refusing access to the entirety of the FOLTF assessment. In particular, the ECB stated that, given the public interest in resolution procedures, and with a view to being as transparent as possible, and to satisfy its accountability obligations, it had decided, in line with past practice, to publish a public version of the FOLTF assessment. In so doing, it removed all confidential supervisory and commercially sensitive information in order to comply with the professional secrecy rules governing its supervisory work.

12 On 24 August 2022, the applicant sent to the ECB a confirmatory application for access to the FOLTF assessment, pursuant to Article 7(2) of Decision 2004/258.

13 On 21 September 2022, the ECB adopted the contested decision. In particular, the ECB held that the redacted parts of the FOLTF assessment contained confidential information protected under Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338). The requested disclosure would therefore undermine the protection of confidentiality of information that is protected as such under European Union law and mentioned in Article 4(1)(c) of Decision 2004/258. Consequently, the ECB took the view that, in accordance with that provision, it had to refuse access to the requested information. The confidential parts of the FOLTF assessment are also covered by the first indent of Article 4(2) of Decision 2004/258 which protects the commercial interests of natural and legal persons.

14 By application lodged at the Court Registry on 18 August 2022, the applicant brought an annulment action against the resolution scheme concerning Sberbank Slovenia. That action was registered as T‑523/22.

15 By application lodged at the Court Registry on 7 October 2022, the applicant brought an annulment action against the ECB’s decision refusing to grant it access to the supervisory file concerning Sberbank Slovenia (see paragraph 10 above). That action was registered as T‑632/22.

18 In support of the action, the applicant relies on five pleas in law. By the first plea in law, it complains that the ECB failed to respond to its request for access in one decision taking into account all the reasons that might justify access to the requested information and in particular in that the ECB considered that the request contained a request for access to the file pursuant to Article 22(2) of Regulation No 1024/2013, read in conjunction with Article 32(1) of Regulation No 468/2014 and a request for public access to the documents pursuant to Decision 2004/258. By the second plea in law, the applicant claims, in essence, that the contested decision is inadequately reasoned in that the ECB did not state the reasons why certain aspects of the FOLTF assessment had been given confidential treatment and others not. By the third plea in law, the applicant maintains that the ECB infringed Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information protected as such under EU law. By the fourth plea in law, the applicant claims that the ECB infringed the first indent of Article 4(2) of Decision 2004/258 on the protection of the commercial interests of a natural or legal person. By the fifth plea in law, the applicant complains that the ECB did not grant it access to the procedural file which resulted in the contested decision and, therefore, that the ECB deprived it of the opportunity to examine the full text of the FOLTF assessment in order effectively to make known its view on the confidential nature of the information that it contains.

The first plea in law, alleging infringement of the applicant’s right to a ‘comprehensive decision’

19 In essence, the applicant claims that the ECB distorted the request for access of 30 June 2022 by splitting it into two requests. It states that the question whether the ECB could, in the light of that request, adopt a decision regarding access to the file and a second separate decision regarding public access to the documents has an impact on the contested decision and that, therefore, its arguments in that regard are admissible. According to the applicant, a number of factors establish that it had the right to be granted access to the FOLTF assessment. First, it highlights the fact that, even though it was not involved in the procedure which led to the resolution scheme concerning Sberbank Slovenia, it is the company primarily affected by the decisions taken in that procedure. As such, it should have enjoyed procedural rights and had access to the entire reasoning of those decisions. The ECB interprets the rules on public access to documents established by Decision 2004/258 in a manner that limits access and therefore transparency. That approach is contrary to the principle of transparency enshrined in Article 15(3) TFEU and in Article 41(2) and Article 42 of the Charter which both aim to ensure the widest possible access to documents. Second, the applicant submits that the fact the ECB did not examine various ‘other reasons justifying its right of access’ to the FOLTF assessment and that it did not respond to its arguments constitutes an inadequate statement of reasons. Lastly, the applicant claims that, in the light of the principle of effective legal protection established in Article 47 of the Charter, an effective action requires access to ‘failing or likely to fail’ assessments. By stating, in the contested decision, that any consideration going beyond an analysis of the applicant’s rights under the applicable rules on public access to documents is excluded, the ECB infringed Article 51 of the Charter.

20 The ECB contends that a number of arguments raised in the first plea in law are inadmissible, in so far as they concern an act other than the contested decision, namely the email of 27 July 2022. First, the application does not state how the alleged illegality of the email of 27 July 2022 could lead to the annulment of the contested decision, with the result that the ECB is unable to prepare its defence against such allegations and that application does not fulfil the requirements of Article 76(d) of the Rules of Procedure of the General Court. Second, the email of 27 July 2022 is the subject of a separate action for annulment brought by the applicant and registered as T‑632/22. Lastly, the applicant is time-barred from contesting that email. In any event, all the arguments put forward by the applicant in the first plea in law are unfounded.

21 As a preliminary point, as regards the pleas of inadmissibility raised by the ECB, it should be noted that, in the first plea in law, the applicant claims in particular that, by adopting a separate decision on the basis of Decision 2004/258, the ECB distorted the applicant’s request. In that context, it develops arguments concerning the content of the email of 27 July 2022, without, however, seeking the annulment of that email in the present proceedings.

22 First, it is clear from the application and the defence respectively that the applicant’s arguments concerning the email of 27 July 2022 are intelligible and that the ECB was able to respond to them. The Court has also had no difficulty in identifying the applicant’s arguments on reading the application. Those arguments are therefore admissible in the light of the requirements of Article 76(d) of the Rules of Procedure.

23 Second, the fact that the decision of 27 July 2022 by which the ECB refused to grant the applicant access to the supervisory file for Sberbank Slovenia is the subject of a separate action for annulment brought by the applicant and registered as T‑632/22 does not alter that conclusion and cannot prohibit the applicant from presenting arguments concerning the content of that decision in the present proceedings.

24 Lastly, in so far as the action for annulment directed against the decision of 27 July 2022, registered as T‑632/22, was brought on 7 October 2022, that is to say, before the expiry of the period for bringing proceedings, the ECB is not justified in relying on time-barring in respect of the action brought against that decision.

25 Consequently, the pleas of inadmissibility raised by the ECB should not be accepted.

26 As to the substance, with regard to the question whether the ECB distorted the applicant’s request, it is necessary to examine the legal and factual circumstances of the present case.

27 In the request for access of 30 June 2022, the applicant stated that it was writing ‘as a former shareholder of Sberbank [Slovenia]’ in connection with the ‘assessment, dated 27 February 2022, pursuant to Article 18(1), [second] subparagraph, of Regulation No 806/2014, that [that establishment] is failing or likely to fail, in accordance with Article 18(1)(a) and Article 18(4)(c) of Regulation (EU) No 806/2014’. It then explained that it was asking for access to that assessment ‘on the basis of [Decision 2004/258], Article 6(1) as well as the EU Charter of fundamental rights, Articles 41(2)(b) and 42’. However, Article 41(2)(b) of the Charter relates to the right of every person to have access to his or her file, whereas Decision 2004/258 and Article 42 of the Charter relate to the right of access of the public to documents. It must therefore be stated that the applicant founded the request for access of 30 June 2022 on two different legal bases, namely, first, the right of every person to have access to his or her file and, second, the right of public access to ECB documents, which refer, in turn, to two separate sets of legal rules.

28 As stated in paragraph 9 above, by an email of 27 July 2022, the ECB informed the applicant, in response to the request for access of 30 June 2022, that it was examining that request in two parallel procedures, one based on Decision 2004/258 concerning public access to ECB documents and the other based on Article 22(2) of Regulation No 1024/2013 and Article 32(1) of Regulation No 468/2014 concerning access to the ECB’s supervisory file.

29 In that regard, public access to ECB documents and access to the ECB’s supervisory file are covered by two different sets of legal rules. In order to be regarded as a request for public access to ECB documents, the request must meet specific conditions. The same applies to a request for access to the ECB’s supervisory file. One of the conditions concerns the status of the applicant and the nature of the documents requested. Unlike a supervised entity which may alone, in that capacity and in a personal capacity, request access solely to the its supervisory file (see, to that effect, judgment of 6 November 2024, MeSoFa v ECB, T‑632/22), a natural or legal person not enjoying any particular status can apply for access to all ECB documents and is not obliged to state the reasons for his or her application for access, as is clear from Article 6(1) of Decision 2004/258.

30 It follows that, if an application for access fulfils the conditions of Article 6(1) of Decision 2004/258, the ECB is required to process it in the light of that provision and the procedure relating to public access to documents.

31 In that context, it should be noted that, according to Article 6(1) of Decision 2004/258, applications for access to documents must be made in written form, including electronic form, in one of the official languages of the Union and in a sufficiently precise manner to enable the ECB to identify the document. The applicant is not obliged to state the reasons for the application.

32 Since the person requesting access is not required to justify his or her request, that person does not have to demonstrate any interest in having access to the documents requested. It follows that a request for access which falls within the scope of Decision 2004/258 and which is made by a person who relies on certain specific circumstances which distinguish him or her from any other EU citizen must nevertheless be examined in the same way as an application from any other person (judgments of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraph 105, and of 22 March 2023, Satabank v ECB, T‑72/20, EU:T:2023:149, paragraph 125).

33 It is also apparent from the case-law that, where the ECB rules on an application for access to documents which is submitted to it on the basis of Decision 2004/258, it is not required to take into account the fact that the person requesting access may need those documents for the purpose of preparing for judicial proceedings, in particular an action for annulment (judgment of 27 April 2023, Aeris Invest v ECB, C‑782/21 P, not published, EU:C:2023:345, paragraphs 37 and 38).

34 In the present case, the application for access of 30 June 2022, summarised in paragraph 27 above, met the conditions of Article 6(1) of Decision 2004/258. Therefore, the ECB could examine the application, as it did, in the light of that provision and of the procedure on public access to documents. In those circumstances, the ECB rightly stated in the contested decision that Decision 2004/258 was not designed to protect the particular interest which a specific individual may have in gaining access to certain documents. It also rightly inferred from that fact that it was not required to take into account the particular interests claimed by the applicant as a former shareholder of Sberbank Slovenia or any procedural rights arising from that capacity.

35 Moreover, the applicant cannot successfully rely on the judgment of 22 March 2023, Satabank v ECB (T‑72/20, EU:T:2023:149). In that judgment, the ECB had not analysed whether a request for access fulfilled the conditions of Article 6(1) of 2004/258. That case was therefore different from the situation in the present case, since the ECB held, in the present case, that the request for access of 30 June 2022 fulfilled the requirements of that provision. Contrary to what the applicant seemed to suggest at the hearing, that judgment did not create an obligation on the part of the ECB to respond to the request for access by a single ‘comprehensive decision’.

36 In brief, in the light of the foregoing and, in particular, the fact that the applicant had founded the application for access of 30 June 2022 on two legal bases referring to two different sets of legal rules, the ECB could lawfully take the view, without infringing the applicant’s rights, that that application contained a request for public access to documents under Decision 2004/258 and process that application in the context of the specific procedure laid down in the provisions of that decision, which necessarily resulted in a separate decision. It is therefore not established that the ECB distorted that request, and the applicant’s arguments in that regard must be rejected.

37 Furthermore, as regards the insufficient statement of reasons alleged by the applicant, in that the ECB did not examine ‘other grounds on which the applicant is entitled to access’ the FOLTF assessment or respond to its arguments, a reading of the contested decision shows that the ECB stated precisely, by relying on the case-law, the specific reasons why it had not taken into account those arguments (see paragraph 34 above). Although the applicant asserts that the ECB failed to define its position on all of its arguments, it must be stated that that institution set out, in the contested decision, the facts and the legal considerations having decisive importance in that regard, which is sufficient in the light of the case-law on the obligation to state reasons (see, to that effect, judgment of 6 September 2012, Storck v OHIM, C‑96/11 P, not published, EU:C:2012:537, paragraph 21). Therefore, the applicant’s argument must be rejected.

38 It follows from the foregoing that the first plea in law, alleging infringement of the applicant’s right to a ‘comprehensive decision’, must be rejected.

The second plea in law, alleging an inadequate statement of reasons, in that the ECB did not state the reasons why certain aspects of the FOLTF assessment had been given confidential treatment and others not

39 In essence, the applicant maintains that the contested decision does not make it possible to understand why certain aspects of the FOLTF assessment were disclosed and not others. The ECB itself disclosed, on its website, a number of aspects of the FOLTF assessment, including its findings, and refuses to disclose the specific financial data relating to them. In particular, the applicant claims that, where the ECB relies on professional secrecy, it does not explain either why its negative assessment of the establishment concerned is not covered by that secrecy or why, conversely, the information on which that assessment is based is so covered. According to the applicant, the Court has already ruled that the ECB had to provide specific explanations where it refused to disclose documents in connection with requests for public access to its documents. In the present case, the ECB merely states, in a vague manner, that the disclosure of specific and detailed information is problematic instead of explaining and justifying each redaction.

41 In the contested decision, the ECB stated that paragraphs 9, 11, 12, 13, 14, 15, 16, 18, 21, 22, 24, 26, 27 and 28 of the FOLTF assessment contained detailed financial information, including details on the liquidity situation of Sberbank Slovenia, as well as a confidential analysis relating to prudential supervision. In that decision, the ECB held that that information was covered by the exceptions mentioned in Article 4(1)(c) of Decision 2004/258 on the protection of the confidentiality of information protected as such under EU law and in the first indent of Article 4(2) of that decision on the protection of the commercial interests of a natural or legal person.

42 In the first place, it is necessary to examine the contested decision in that it concerns the exception provided for in Article 4(1)(c) of Decision 2004/258 on the protection of the confidentiality of information protected as such under EU law.

43 It should be noted that, according to the case-law, the obligation to state the reasons on which an act adversely affecting an individual is based, as laid down in the second paragraph of Article 296 TFEU and enshrined in Article 41(2)(c) of the Charter, is a corollary of the principle of respect for the rights of the defence and its purpose is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the EU judicature and, second, to enable that judicature to review the legality of that act. The statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the person concerned to ascertain the reasons for the measures and to enable the court having jurisdiction to exercise its power of review (judgment of 15 November 2012, Council v Bamba, C‑417/11 P, EU:C:2012:718, paragraphs 49, 50 and 53).

44 If the ECB decides to refuse access to a document under Article 4(1) of Decision 2004/258, it must explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception on which it is relying, since the risk of that undermining must be reasonably foreseeable and not purely hypothetical (judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 42).

45 That being so, account must be taken of the fact that it may be impossible to give the reasons justifying the refusal of access to each piece of information in the requested document without disclosing the content of the document or an essential aspect of it and thereby depriving the exception of its very purpose (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 264; and see, by analogy, judgments of 26 April 2005, Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 84).

46 In the present case, the redacted information in paragraphs 9, 11, 12, 13, 14, 15, 16, 18, 21, 22, 24, 26, 27 and 28 of the FOLTF assessment concerns the liquidity situation of Sberbank Slovenia on various dates, the clients of that establishment, the actions taken by that establishment in order to prepare for any economic sanctions, the rescue measures identified by that establishment and the ECB’s assessment concerning those measures, the information on access to ECB financing, the content of two letters from the applicant addressed to the ECB, the estimated lifetime of Sberbank Slovenia in view of outflows, the measures taken by that establishment aimed at improving its liquidity situation and supervisory measures taken by the ECB.

47 In that context, it should be noted that the public version of the FOLTF assessment states, in the form of descriptions, what type of information is redacted.

48 It should also be noted that, in the contested decision, the ECB stated, taking into account Article 4(1)(c) of Decision 2004/258, Article 27 of Regulation 1024/2013 and Article 53(1) of Directive 2013/36, read in conjunction with the concept of ‘confidential information’ arising from the judgment of 19 June 2018, Baumeister (C‑15/16, ‘the judgment in Baumeister’, EU:C:2018:464), that it was precluded from disclosing information drawn up within the Single Supervisory Mechanism which was not public, and the disclosure of which was likely to adversely affect the interests of the natural or legal person who provided it or the interests of third parties, or the proper functioning of the system of prudential banking supervision.

49 According to the contested decision, following the confirmatory application submitted by the applicant, the ECB reassessed the information redacted from the FOLTF assessment and concluded that the exception provided for in Article 4(1)(c) of Decision 2004/258 on the protection of the confidentiality of information protected as such under EU law applied. The contested decision states the reasons for the non-disclosure as follows:

– disclosure of the information contained in the redacted paragraphs is likely to adversely affect the interests of Sberbank [Slovenia] and its new parent undertaking. The paragraphs concerned contain detailed financial information, including details of the liquidity position of Sberbank [Slovenia] and of the supervisory measures imposed on, and measures taken by, that bank to remedy its liquidity situation. Disclosure of this information would be likely to lead to conjecture in the market, which could adversely affect the interests of both Sberbank [Slovenia] and its new parent undertaking;

– disclosure of the information contained in the redacted paragraphs is likely to adversely affect the proper functioning of the system of prudential supervision for the following reasons:

(i) it would be likely to adversely affect the role of the prudential supervisor in contributing to the safety and soundness of credit institutions and the stability of the financial system within the EU, as set out in Article 1 of the SSM Regulation. Although Sberbank [Slovenia] has been taken over by Nova Ljubljanska Banka d.d. through the sale-of-business resolution tool, disclosure could still undermine the role of the ECB in safeguarding financial stability by virtue of adversely affecting the interests of Sberbank [Slovenia] and its new parent undertaking;

(ii) in addition, disclosure of the redacted paragraphs would also be likely to adversely affect the way in which the supervisory methodologies and strategies applied to credit institutions are employed in the future by the competent authorities;

(iii) finally, disclosure of the redacted paragraphs would undermine the trust held by supervised entities and other authorities involved that confidential information provided will, in principle, remain confidential. Disclosure of the redacted paragraphs would therefore risk compromising the smooth transmission of confidential information that is crucial to the proper functioning of the system of prudential supervision.’

50 The ECB therefore stated the exception on which it based its refusal, namely the exception relating to the protection of the confidentiality of information that is protected as such under EU law resulting from Article 4(1)(c) of Decision 2004/258. It explained how that exception was relevant to the redacted information, stating that it contained detailed factual information including details of the liquidity situation of Sberbank Slovenia, and a confidential analysis relating to prudential supervision. It also provided a brief explanation, stated in paragraph 49 above, as to the need for the protection relied on, contending that the information at issue was not public and its disclosure would be likely to adversely affect the interests of Sberbank Slovenia and its new parent company and the proper functioning of the system of prudential supervision.

51 Thus, taking into account, first, the content of the public version of the FOLTF assessment and, second, the aspects contained in the contested decision mentioned in paragraph 49 above, the applicant is able to understand the specific reasons why the ECB considered that the disclosure of the information at issue was covered by the exception relied on and the Court is able to exercise its power of review. In view of the type of information redacted and the degree of detail in the descriptions contained in the public version of the FOLTF assessment, a more complete explanation was likely to deprive that exception of its very purpose (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 264).

53 Even though, in the contested decision, the ECB did not state the reasons why it decided to disclose certain aspects of the FOLTF assessment, the fact remains that that decision sets out, in a clear and unequivocal fashion, the ECB’s reasoning with regard to the refusal of disclosure based on Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law.

54 Moreover, as is clear from paragraph 46 above, first, the redacted information in paragraphs 9, 11, 12, 13, 14, 15, 16, 18, 21, 22, 24, 26, 27 and 28 of the FOLTF assessment is all concerned with the area covered by the exception provided for in Article 4(1)(c) of Decision 2004/258. Second, it is unambiguously clear from the contested decision that the reasoning stated in paragraph 50 above applies to each of those items of information. It therefore appears that the ECB specifically and effectively assessed the confidentiality of each of the items of information concerned.

55 It follows that the ECB gave adequate reasons for the contested decision in that it refuses access to the redacted information on the basis of the exception mentioned in Article 4(1)(c) of Decision 2004/258 relating to the protection of the public interest as regards the confidentiality of information that is protected as such under EU law.

56 In the second place, it is clear from the contested decision that, as regards the exception mentioned in Article 4(2) of Decision 2004/258 relating to the protection of the commercial interests of a natural or legal person, the ECB has likewise stated, for each item of redacted information, the reasons why that exception was applicable. The contested decision states that the redacted information is commercially sensitive information about the commercial position of Sberbank Slovenia at the time of its acquisition by its parent company and about the applicant. The ECB stated in particular that if the redacted information was made public, this could negatively affect the standing, commercial interests and commercial position of the new parent undertaking and of Sberbank Slovenia. The contested decision also contains an assessment as to whether there is an overriding public interest in the disclosure of the information in question notwithstanding the adverse effect on the interest protected by the exception relied on. Those explanations enable the applicant and the Court to understand the ECB’s reasons for opposing the disclosure of the information in question.

57 The second plea in law, alleging an inadequate statement of reasons, in that the ECB did not state the reasons why certain aspects of the FOLTF assessment had been given confidential treatment and not others, must therefore be rejected.

The third plea in law, alleging infringement of Article 4(1)(c) of Decision 2004/258 on the protection of the confidentiality of information protected as such under EU law

58 The applicant claims that the ECB was wrong to consider in the contested decision that the disclosure of the redacted information would undermine the confidentiality of information that is protected as such under EU law, within the meaning of Article 4(1)(c) of Decision 2004/258.

59 In essence, the applicant maintains that the considerations outlined in that regard misinterpret and incorrectly apply Article 4(1)(c) of Decision 2004/258. The applicant also casts doubt on the applicability of Article 27 of Regulation No 1024/2013 and of Article 53 of Directive 2013/36 relied on by the ECB in order to define the concept of ‘confidential information’. First, it is not Article 27 of Regulation No 1024/2013 but Article 18 of Regulation No 806/2014 on the resolution of credit institutions and certain investment firms which governs FOLTF assessments of supervised entities. Second, Directive 2013/36 is addressed to the Member States. Moreover, Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 require staff working for the competent authorities to observe professional secrecy, but do not answer the question whether the ECB could disclose the information at issue. Furthermore, the judgment in Baumeister relied on by the ECB stated that all information relating to a supervised entity does not constitute, unconditionally, confidential information that is covered by the obligation to maintain professional secrecy. The applicant takes the view that the ECB did not establish that the redacted information, unlike the information that the ECB and the SRB had already published, is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the prudential supervision system. The applicant also submits that, by publishing a public version of the FOLTF assessment, then refusing to disclose that assessment in its entirety, the ECB misconstrued recital 116 of Regulation No 806/2004.

61 It should be recalled that, in the contested decision, the ECB based, in particular, the refusal to grant access on the exception provided for in Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law. In order to define adverse effect on the protection of such information, the ECB cited Article 27 of Regulation No 1024/2013, Article 53(1) of Directive 2013/36 and the concept of ‘confidential information’ arising from the judgment in Baumeister.

62 According to Article 4(1)(c) of Decision 2004/258, ‘The ECB shall refuse access to a document where disclosure would undermine the protection of […] the confidentiality of information that is protected as such under Union law’.

63 It should be made clear, at this stage, that the protection of the confidentiality of information that is protected as such, as established in Article 4(1)(c) of Decision 2004/258, is an ‘absolute’ exception to the right of access and that that exception refers, for that purpose, to EU law (see, to that effect, judgment of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraph 133), of which Article 27 of Regulation No 1024/2013 and Article 53(1) of Directive 2013/36 form part.

64 In that context, it has already been held that Article 4(1)(c) of Decision 2004/258 established a link between the rules on public access to ECB documents and the rules of professional secrecy to which the ECB and its staff are subject under EU law, seeking to ensure that the ECB complies with its obligations of professional secrecy (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 189).

65 As regards Article 27(1) of Regulation No 1024/2013, it should be noted that it imposes a professional secrecy obligation on ECB staff members in respect of information obtained by them in the context of prudential supervision. That obligation includes the duty to respect the confidentiality obligations imposed by all the relevant acts of EU law.

66 For its part, Article 53(1) of Directive 2013/36 imposes professional secrecy on the competent authorities of the Member States in the area of prudential supervision. Under that provision, professional secrecy prohibits those authorities in principle from disclosing confidential information that they receive other than in summary or aggregate form such that credit institutions cannot be identified. That principle is accompanied by two derogations enabling the disclosure of confidential information, first, in cases covered by criminal law, second, in cases relating to civil or commercial proceedings subject to the twofold condition, in the case of those commercial or civil proceedings, that the credit institution concerned by the confidential information has been declared bankrupt or is being compulsorily wound up and that the confidential information does not concern third parties involved in attempts to rescue that credit institution.

67 In the present case, the information redacted from the FOLTF assessment consists in information concerning the liquidity situation of Sberbank Slovenia on different dates, the clients of that establishment, the actions taken by that establishment in order to prepare for any economic sanctions, the rescue measures identified by that establishment and the ECB’s assessment concerning them, the information on access to ECB financing, the content of two letters of the applicant addressed to the ECB, the estimated lifetime of Sberbank Slovenia in view of outflows, the measures taken by that establishment aimed at improving its liquidity position and supervisory measures taken by the ECB. That information is all prudential information and has mostly been obtained by the ECB in the context of exchanges of information with the supervised entity and the national supervisory authorities. As such, it is covered by Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 which concern professional secrecy and the exchange of information in the exercise of supervisory functions.

68 Both Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 prohibit the competent authorities and their staff from disclosing information covered by professional secrecy, as well as confidential information in their possession other than in summary or aggregate form preventing any identification of the entities concerned.

69 The ECB could therefore rely on its professional secrecy obligations under Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36 in refusing to grant access based on Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law and, pursuant to those provisions, check that the two conditions set out in the judgment in Baumeister were satisfied in respect of each item of information to which access was requested, knowing that if those conditions were satisfied, it must refuse access to the information at issue (see, by analogy, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196), as it has done.

70 In those circumstances, the applicant’s arguments according to which Article 27 of Regulation No 1024/2013 is not the article which governs FOLTF assessments of supervised entities, Directive 2013/36 is addressed to the Member States and the said Article 27 and Article 53 of that directive concern only the staff of the competent authorities, cannot succeed. As the ECB confirmed at the hearing, the redacted information was retrieved and exchanged in the context of the supervision of Sberbank Slovenia.

71 As regards the judgment in Baumeister, it has already been held that the interpretation adopted in that judgment was applicable for the purpose of defining confidential information within the meaning of Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law (see, to that effect, judgments of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196, and of 6 October 2021, OCU v ECB, T‑15/18, not published, EU:T:2021:661, paragraphs 120 to 134).

72 It is true that, as the applicant states, according to paragraph 46 of the judgment in Baumeister, all information relating to the supervised entity and communicated by it to the competent authority, and all statements of that authority in its supervision file, including its correspondence with other bodies, do not constitute, unconditionally, confidential information that is covered consequently by the obligation to maintain professional secrecy.

73 However, in paragraph 46 of the judgment in Baumeister, the Court ruled that information held by the competent authorities (i) which is not public and (ii) the disclosure of which is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the system for monitoring the activities of investment firms was to be so classified.

74 Therefore, if, as in the present case, the ECB intends to refuse access to documents owing to the confidentiality of the information at issue, it must check that the two criteria set out in the judgment in Baumeister stated in paragraph 73 above are satisfied in respect of each item of information concerned, since that process necessarily requires a specific examination of each item of that information (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 196).

75 That said, in applying the second condition of the judgment in Baumeister, the ECB enjoys a broad discretion, since the assessment of whether the disclosure of certain documents would undermine the protection of the proper functioning of the prudential supervision and resolution system is a complex and delicate one which calls for the exercise of particular care (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraphs 159 and 252 to 253).

76 The consequence of recognising that the ECB enjoys such discretion is that the EU Courts’ review of legality in that regard must be limited to verifying whether the procedural rules and the obligation 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 (see judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 161 and the case-law cited).

77 It must now be examined whether the ECB was right to consider the redacted information to be confidential. In other words, it must be verified whether (i) that information is not public in nature and (ii) its disclosure is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the prudential supervision system.

78 In the first place, as regards the public nature of the information requested, a reading of the full text of the FOLTF assessment suggests that the information which has been redacted is known only to a limited number of persons and is therefore not public in nature (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 220 and the case-law cited).

79 As the description of that information in the public version of the FOLTF assessment also shows, the information to which access was refused is essentially specific financial information relating to the liquidity situation of Sberbank Slovenia in the weeks preceding the drafting of the FOLTF assessment and the assessments made by Sberbank Slovenia, the applicant and the ECB or the actions taken by them. It is therefore information which, in principle, is not regularly or normally made public by the credit institution concerned or by the competent national authorities or the ECB, but is rather information which has been specifically gathered in order to assess whether Sberbank Slovenia was failing or was likely to fail.

80 In the light of the foregoing, it must be stated that there is nothing in the file to suggest that the information to which access was refused pursuant to Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law was in the public domain at the time when the contested decision was adopted.

81 The fact that the ECB published the public version of the FOLTF assessment cannot alter that conclusion. In that regard, the publicity generated around Sberbank Slovenia’s situation, in particular by the publication of a press release and the public version of the FOLTF assessment, responded, as the ECB explained at the hearing, to the need to inform the public, without, however, disclosing the specific information relating to the liquidity situation of Sberbank Slovenia or the entirety of the assessments made by Sberbank Slovenia, the applicant and the ECB, and the actions undertaken by them.

82 In the second place, as regards the likelihood of adversely affecting the interests of the natural or legal person who provided that information or the interests of third parties, or the proper functioning of the system of prudential supervision, it should be borne in mind at the outset that, where information that could constitute business secrets at a certain moment in time is at least five years old, that information must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties (judgments of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 54, and of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 235).

83 In the present case, the FOLTF assessment is dated 27 February 2022 and the contested decision was adopted on 21 September 2022. Therefore, at the time when the contested decision was adopted, the information at issue had existed for no more than a few months and so, as the ECB maintains, could not be regarded as historical information.

84 In essence, the applicant claims that the redacted information relates to a crisis situation which was in the past. Since that information is no longer relevant, there would be no risk in its disclosure. Similarly, it submits that there is no risk that the interests of Sberbank Slovenia may be subject to conjecture, that is to say, speculation by external observers, since it was already in the public domain that the ECB and the SRB concluded that that establishment was failing or was likely to fail. Moreover, Sberbank Slovenia is now part of a different banking group; it is therefore barely plausible that disclosure would affect its interests. The applicant also criticises the ECB for not having stated whether it had consulted Sberbank Slovenia on that point.

85 In that respect, as regards the specific financial data relating to the situation of Sberbank Slovenia in the weeks preceding the redaction of the FOLTF assessment, the disclosure of which could, according to the ECB, adversely affect the interests of that establishment and of its new parent company, although that establishment joined the Nova Ljubljanska Banka d.d. group following the adoption of a resolution tool, it remained in activity at the time when the contested decision was adopted.

86 It follows that the ECB was entitled to take the view that disclosure of the financial data relating to the liquidity situation of Sberbank Slovenia was capable, when the contested decision was adopted, of adversely affecting the interests of that establishment or those of its new parent company (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraphs 240 to 242). It cannot be accepted that the mere fact that an establishment joins a group following the adoption of a resolution tool can create a presumption that the financial information gathered for the purposes of the FOLTF assessment would immediately lose its secret nature.

87 The press releases and other documents on the situation of Sberbank Slovenia published by the ECB and the SRB cannot alter that conclusion. Although, as the applicant states, it is in the public domain that the ECB and the SRB considered that Sberbank Slovenia was failing or was likely to fail, no publicity was given to the specific financial data relating to that situation.

88 Moreover, contrary to what the applicant claims, in so far as it was clear that the ECB did not have to disclose the recent information on the commercial position of Sberbank Slovenia, it did not have to consult that establishment, according to Article 4(4) of Decision 2004/258.

89 Furthermore, although the reasoning of the contested decision on the likelihood of an adverse effect on the interests of Sberbank Slovenia and of its new parent company is succinct, it clearly sets out, in a clear and unequivocal fashion, the reasons for refusing the disclosure and must therefore be regarded as being sufficient (see paragraphs 41 to 55 above).

90 As regards the assessments made by Sberbank Slovenia, the applicant and the ECB and the actions undertaken by them, the disclosure of which might, according to the ECB, adversely affect the proper functioning of the supervisory system, the applicant’s complaints, which merely regret the ECB’s lack of transparency, fail to call into question the ECB’s assessment that the disclosure of that information is likely to adversely affect the supervisory methodologies and strategies applied by the competent authorities and the mutual trust between them and the supervised establishments necessary to the prudential supervision mechanism.

91 Contrary to what the applicant alleges, the fact that the ECB publicised the conclusions of its FOLTF assessment before the adoption of the resolution tool concerning Sberbank Slovenia without being required to do so by Regulation No 806/2014 does not prevent it from relying on the risk that other establishments might no longer trust the fact that the information that they might provide the ECB with in the future in the context of prudential supervision will remain confidential. In the press release on the situation of Sberbank Slovenia, which the ECB published on its website on 28 February 2022, the ECB did not disclose any information covered by professional secrecy.

92 In that regard, recital 116 of Regulation No 806/2014, which the applicant relies on, states that ‘resolution actions should be properly notified and, subject to the limited exceptions laid down in this Regulation, made public’ and that, ‘however, as information obtained by the Board, the national resolution authorities and their professional advisers during the resolution process is likely to be sensitive, before the resolution decision is made public, that information should be subject to the requirements of professional secrecy’. It has already been held that accepting that the adoption of a resolution scheme can have automatic consequences affecting the confidentiality of the information which has been sought out specifically in order to assess the commercial position of a credit institution would be tantamount to excluding, as a matter of principle, the application of the exception mentioned in Article 4(1)(c) of Decision 2004/258 relating to the protection of the confidentiality of information that is protected as such under EU law (judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 239). In those circumstances, the ECB rightly checked whether any part of the FOLTF assessment contained confidential information before publishing it. In the present case, it has been established that some of those parts contained confidential information, and therefore the ECB could legitimately redact it in the public version of that assessment.

93 By merely regretting the ECB’s lack of transparency and relying on the fact that the ECB disclosed certain information concerning the situation of Sberbank Slovenia in a press release, the applicant fails to call into question the ECB’s reasoning that the disclosure of the redacted information could have adverse consequences for the proper functioning of the system of prudential supervision.

94 The ECB could therefore legitimately rely on a risk of adversely affecting the supervisory methodologies and strategies applied by the competent authorities and the mutual trust between them and the supervised establishments necessary to the prudential supervision mechanism.

95 In the light of the foregoing, it is not established that the ECB committed a manifest error of assessment or misused its powers in considering that the disclosure of the requested information would be likely to adversely affect the proper functioning of the system of prudential supervision (see, to that effect, judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 269).

96 Therefore, it must be concluded that the information to which the ECB refused access pursuant to Article 4(1)(c) of Decision 2004/258 is confidential within the meaning of Article 27 of Regulation No 1024/2013 and Article 53 of Directive 2013/36.

97 Consequently, the third plea in law must be rejected, since the contested decision proves to be well founded in the light of the exception relating to the protection of confidential information protected as such under EU law, as provided for in Article 4(1)(c) of Decision 2004/258.

The fourth plea in law, alleging infringement of the first indent of Article 4(2) of Decision 2004/258 on the protection of the commercial interests of a natural or legal person

98 In essence, the applicant claims that the ECB misinterprets and incorrectly applies the first indent of Article 4(2) of Decision 2004/258 on the protection of the commercial interests of a natural or legal person. It also submits that the ECB fails to provide sufficient reasoning in that regard.

100 In that regard, although the same document can fall within the scope of one or more exceptions provided for in Decision 2004/258, it is apparent from the examination of the third plea in law that the ECB was right to consider that the disclosure of the full version of the FOLTF assessment could adversely affect the protection of confidential information protected as such under EU law within the meaning of Article 4(1)(c) of that decision.

101 Therefore, since that exception in itself justifies non-disclosure of the redacted information, for reasons of procedural economy, it is unnecessary to examine whether the applicant’s pleas concerning the exception relating to the protection of the commercial interests of natural or legal persons mentioned in Article 4(2) of Decision 2004/258, which form the subject matter of the present plea in law, are well founded (see, by analogy, judgment of 28 May 2020, ViaSat v Commission, T‑649/17, not published, EU:T:2020:235, paragraph 127 and the case-law cited).

The fifth plea in law, alleging infringement of the applicant’s right of access to the procedural file which resulted in the contested decision

102 In essence, the applicant claims that, as part of the procedure for public access to documents, the ECB should, in accordance with Article 41 of the Charter, have granted it access to the FOLTF assessment in order to give it the opportunity effectively to make known its view on the confidentiality of the information that it contains.

104 In the present case, as is apparent from paragraphs 61 to 97 above, it has been established that the redacted information was confidential. In that regard, information which has not been disclosed by the ECB on the ground that it is confidential and which forms the subject matter of a procedure for public access to documents does not have to be communicated to the applicant during that procedure. That approach is in accordance with the principle of sound administration, because, if that were not the case, any procedure for public access to documents would become devoid of purpose as a result of the communication of the document requested.

105 In accordance with Article 8 of Decision 2004/258, the contested decision may be the subject of an action for annulment under Article 263 TFEU. In the context of the present action for annulment brought against the contested decision, it is therefore for the General Court, and not the applicant, to consult the document requested (see, to that effect, judgment of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, EU:T:2015:268, paragraph 105 and the case-law cited).

106 Consequently, the fifth plea in law, alleging the infringement of the applicant’s right of access to the procedural file resulting in the contested decision must be rejected, and the action must be dismissed in its entirety.

107 Under Article 134(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the ECB, in accordance with the forms of order sought.

2. Orders MeSoFa Vermögensverwaltungs AG to bear its own costs and to pay those incurred by the European Central Bank (ECB).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> MeSoFa v ECB (Access to documents - 'Failing or likely to fail' assessment of Sberbank banka - Judgment) [2024] EUECJ T-790/22 (06 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T79022.html Cite as: EU:T:2024:783, [2024] EUECJ T-790/22, ECLI:EU:T:2024:783

Court of Justice of the European Communities (including Court of First Instance Decisions)