Espirito Santo Financial (Portugal) v ECB (Access to documents - Banco Espírito Santo SA - Implied refusal to grant access - Judgment) [2018] EUECJ T-251/15 (26 April 2018)

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(Access to documents — Decision 2004/258/EC — Documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA — Implied refusal to grant access — Express refusal to grant access — Partial refusal to grant access — Exception relating to the confidentiality of the proceedings of the ECB’s decision-making bodies — Exception relating to the financial, monetary or economic policy of the European Union or of a Member State — Exception relating to the stability of the financial system in the European Union or in a Member State — Exception relating to the protection of commercial interests — Exception relating to opinions intended for internal use — Obligation to state reasons)

Espírito Santo Financial (Portugal), SGPS, SA, established in Lisbon (Portugal), represented initially by R. Oliveira, N. Cunha Barnabé and S. Estima Martins, lawyers, and subsequently by L. Soares Romão, J. Shearman de Macedo and D. Castanheira Pereira, lawyers,

European Central Bank (ECB), represented initially by F. Malfrère and S. Lambrinoc, and subsequently by F. Malfrère and T. Filipova, acting as Agents, and by H.-G. Kamann and P. Gey, lawyers,

APPLICATION pursuant to Article 263 TFEU for the annulment, on the one hand, of the ECB’s decision of 1 April 2015 refusing in part to disclose certain documents relating to its decision of 1 August 2014 concerning Banco Espírito Santo SA and, on the other hand, of the implied decision refusing to grant access to those documents,

composed of G. Berardis, President, D. Spielmann and Z. Csehi (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 30 March 2017,

1 The applicant, Espírito Santo Financial (Portugal), SGPS, SA, is a holding company incorporated under Portuguese law and is currently the subject of insolvency proceedings. It was one of the main shareholders in Banco Espírito Santo SA (‘BES’).

2 From May 2014, BES came under financial pressure and its liquidity position deteriorated, inter alia, as a result of difficulties faced by other companies affiliated to the same group. In view of this situation, BES had recourse to Eurosystem credit operations and, from 17 July 2014, started to receive emergency liquidity provided by Banco de Portugal, the Portuguese central bank.

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

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

5 Acting on a proposal from the Executive Board of the ECB on 1 August 2014 (‘the proposal of 1 August 2014’), on the same day the Governing Council decided, inter alia, to suspend access by BES and its branches, with effect from 4 August 2014, to monetary policy credit instruments, on grounds of prudence, and ordered that BES repay, no later than the same date, 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 in which the ceiling for the provision of emergency liquidity that could be granted by Banco de Portugal to BES was also stated.

6 In that context, the Portuguese authorities decided to make BES the subject of a resolution procedure, which involved the creation of a temporary credit institution, the ‘bridge bank’, named Novo Banco SA, and the transfer of BES’s sound business activities to the latter.

7 On Sunday 3 August 2014, following notification by the Portuguese authorities, the European Commission adopted Decision C(2014) 5682 final on State aid SA.39250 (2014/N) — Portugal, Resolution of Banco Espírito Santo SA (‘the Commission’s decision of 3 August 2014), by which it concluded that the notified measure, namely the injection of EUR 4 899 million capital by the Portuguese authorities into Novo Banco by means of the Portuguese Resolution Fund (Fundo de Resolução), along with the undertakings given by those authorities, constituted State aid compatible with the internal market under Article 107(3)(b) TFEU.

8 On the same day, Novo Banco was created by the Portuguese authorities. Various BES assets, liabilities, off-balance sheet items and assets under management were transferred to Novo Banco.

9 On 27 October 2014, insolvency proceedings were initiated against the applicant.

10 By letter of 5 November 2014, the applicant requested that the ECB grant access to the decision of 1 August 2014 referred to in paragraph 5 above and to all documents in the ECB’s possession which were ‘in any way’ related to that decision.

11 By letter of 7 January 2015, the ECB replied to that request and granted the applicant full or partial access to a number of the documents it had requested (‘the decision on the initial application’). In particular, it granted partial access to extracts from the minutes recording the decisions of 28 July and 1 August 2014 and to the proposals of 28 July and 1 August 2014.

12 By letter of 4 February 2015, the applicant sent a confirmatory application to the ECB, in which it stated that the reasons given by the ECB in the decision on the initial application to justify the refusal to grant full access to some of the documents requested were too vague and general. Moreover, it requested disclosure 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, namely the amount of credit granted to BES, its branches and subsidiaries through Eurosystem monetary policy instruments and the amount of the ceiling for the provision of emergency liquidity that could be granted to BES by Banco de Portugal, as well as certain information that had been redacted from the proposals of 28 July and 1 August 2014. As regards the proposal of 28 July 2014, the applicant requested, inter alia, access to information concerning the solvency of BES, the estimate of BES’s indirect exposure, the guarantee granted by the Republic of Angola to Banco Espírito Santo Angola SA and financial stability issues. As regards the proposal of 1 August 2014, the applicant sought, inter alia, access to information concerning the creation of the ‘new bank’.

13 On 5 February 2015, the ECB confirmed receipt of the confirmatory application made by the applicant on 4 February 2015 and stated that a reply would be given to that application by 4 March 2015 at the latest. However, the ECB did not reply to the application within that period.

14 On 5 March 2015, the ECB extended until 1 April 2015 the time limit for replying to the applicant’s confirmatory application.

15 By letter of 1 April 2015 (‘the express decision’), the ECB disclosed to the applicant additional information contained in the proposals of 28 July and 1 August 2014. As to the remainder, it confirmed its refusal to grant access to the amounts redacted from the extracts of the minutes recording the decisions of 28 July and 1 August 2014 and certain passages deleted from the proposals of 28 July and 1 August 2014, pursuant to Article 4 of its Decision 2004/258/EC of 4 March 2004 on public access to ECB documents (OJ 2004 L 80, p. 42).

16 On 13 July 2016, BES’s banking authorisation was withdrawn and it is currently in liquidation.

17 By application lodged at the Registry of the General Court on 14 May 2015, the applicant brought the present action.

19 On a proposal from the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral part of the procedure and, by way of measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, put a number of written questions to the parties. The parties complied with that request within the time allowed.

20 At the hearing on 30 March 2017, at which the applicant did not participate, the ECB presented oral argument and answered the questions put to it by the Court.

23 The applicant submits that, in the absence of a decision in response to its confirmatory application by 4 March 2015, the ECB is deemed to have adopted an implied decision refusing to grant full access to the documents requested (‘the implied decision’). It disputes the lawfulness of the ECB’s decision of 5 March 2015 to extend to 1 April 2015 the initial time limit for giving a decision on its confirmatory application.

24 The applicant relies on a single plea in law in support of its application for annulment of the implied decision, alleging breach of the duty to state reasons.

25 In response, the ECB contends that the application for annulment of the implied decision is inadmissible on the ground that the applicant has no interest in bringing proceedings in respect of that decision. In the alternative, the ECB submits that the application is also unfounded.

26 As a preliminary point, it should be noted that Article 8(1) of Decision 2004/258 provides that a decision is to be given in response to a confirmatory application within 20 working days from receipt of such application. Under Article 8(2) of that decision, that time limit may be extended in exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, by 20 working days, provided that the applicant is notified in advance and that detailed reasons are given. Moreover, Article 8(3) of the decision provides that failure by the ECB to reply within the prescribed time limit is considered to be a negative reply entitling the applicant to institute court proceedings or to submit a complaint to the European Ombudsman.

27 In the present case, it is common ground that the time limit for giving a decision on the confirmatory application was 4 March 2015.

28 Furthermore, it should be noted that, in the circumstances of the present case, the letter extending the initial time limit cannot, as the applicant is correct to point out, validly extend that time limit.

29 That decision was communicated to the applicant one day after the expiry of the initial time limit, in breach, therefore, of the requirement to give notification in advance laid down in Article 8(2) of Decision 2004/258. It should also be noted that the time limit imposed in Article 8(1) of that decision is mandatory and cannot be extended save in the circumstances set out in Article 8(2) of Decision 2004/258 without depriving that article of all practical effect, since the applicant would not be in a position to ascertain precisely the date from which he could bring the action or complaint referred to in Article 8(3) of that decision (see, by analogy, judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 39).

30 Accordingly, pursuant to Article 8(3) of Decision 2004/258, the ECB’s failure to reply to the confirmatory application within the initial time limit, that is by no later than 4 March 2015, must be regarded as constituting, on the expiry of that time limit, a negative reply that may be challenged by an action for annulment.

31 With regard to the ECB’s claim that the application for annulment of the implied decision is inadmissible, it should be noted that, according to established case-law, an action for annulment brought by a natural or legal person is admissible only in so far as the applicant has an interest in the annulment of the contested measure (see judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 41 and the case-law cited).

32 An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which it will be inadmissible (see judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 42 and the case-law cited).

33 Furthermore, the interest in bringing proceedings must continue until the final judicial decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (see judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 43 and the case-law cited).

34 In the present case, by adopting the express decision, the ECB withdrew de facto the implied decision before the present action was brought (see, by analogy, judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 89, and of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 45).

35 Furthermore, consideration of the action for annulment of the implied decision cannot be justified either by the objective of preventing the alleged unlawfulness from recurring or by that of facilitating potential actions for damages, since it is possible to attain both those objectives through consideration of the action for annulment of the express decision (see, by analogy, judgment of 10 December 2010, Ryanair v Commission, T‑494/08 to T‑500/08 and T‑509/08, EU:T:2010:511, paragraph 46 and the case-law cited).

36 Accordingly, the application for annulment of the implied decision is inadmissible, the applicant having no interest in bringing proceedings against that decision because the express decision, annulment of which the applicant also seeks, was adopted before the present action was commenced.

37 In those circumstances, the application for annulment of the implied decision must be rejected.

38 The application for annulment of the express decision is based on four pleas in law.

39 The first three pleas concern the amounts which were omitted from the extracts of the minutes recording the decisions of 28 July and 1 August 2014 provided to the applicant and allege, respectively, breach of the duty to state reasons, breach of the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258 and breach of the first indent of Article 4(2) of that decision. The fourth plea concerns information that was redacted from the proposals of 28 July and 1 August 2014 provided to the applicant and alleges breach of the duty to state reasons.

40 First, it is appropriate to examine the arguments put forward by the applicant in connection with the first three pleas challenging the ECB’s refusal to grant it access to the amount of the ceiling for the provision of emergency liquidity that could be granted by Banco de Portugal to BES indicated in the minutes recording the decision of 1 August 2014 (‘the ceiling for the provision of emergency liquidity in question’). Next, the Court will go on to examine the arguments put forward by the applicant in its first three pleas calling into question the refusal to grant it access to the amount of credit indicated in the minutes recording the decision of 28 July 2014 (‘the amount of credit in question’). Lastly, it will be necessary to examine the applicant’s fourth plea, challenging the refusal to grant it greater access to the proposals of 28 July and 1 August 2014.

1. The refusal to grant the applicant access to the ceiling for the provision of emergency liquidity in question

41 In its first plea, in challenging the refusal to grant it access to the ceiling for the provision of emergency liquidity in question, the applicant maintains that the express decision does not provide adequate reasons. In the second plea, it contends that the ECB infringed the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258. In the third plea, it alleges breach of the first indent of Article 4(2) of that decision.

42 The applicant submits that, in the express decision, the ECB presented only generic considerations as regards the exceptions relied on in refusing to grant access to the ceiling for the provision of emergency liquidity in question. Moreover, the applicant claims that the express decision does not provide any justification for the refusal to disclose the information requested based on the exception deriving from the confidentiality of the proceedings of the ECB’s decision-making bodies, set out in the first indent of Article 4(1)(a) of Decision 2004/258.

44 As a preliminary point, it should be noted, as the ECB explains in the express decision and in its written pleadings, without being contradicted by the applicant, that the provision of emergency liquidity consists in the exceptional provision, under national law, by the central bank of a Member State whose currency is the euro (‘the NCB’) of central bank money and any other form of assistance which may lead to an increase in central bank money to a solvent financial institution that is facing temporary liquidity problems, although such operations do not form part of the European Union’s single monetary policy. However, under Article 14.4 of Protocol (No 4) on the Statute of the European system of central banks and of the ECB (OJ 2012 C 326, p. 230, ‘the ESCB and ECB Statute’), the Governing Council may assess whether such national operations interfere in any way with the objectives and tasks of the European system of central banks (‘the ESCB’). Although the Governing Council does not decide whether emergency liquidity assistance should in fact be given, it has the power to prohibit ex ante the provision of emergency liquidity by an NCB or to make it subject to certain conditions, if the provision of such assistance interferes with the objectives or tasks of the ESCB.

45 It should also be noted that, pursuant to the second paragraph of Article 296 TFEU, legal acts are to state the reason on which they are based.

46 The statement of reasons for a decision must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the EU institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the EU judicature to exercise its power of review (see judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 32 and the case-law cited).

47 The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern, for the purpose of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the statement of reasons to specify all the relevant matters of fact and law, since the question whether the statement of reasons meets the necessary requirements must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 33 and the case-law cited).

48 With respect to the legal framework applicable to the right of access to ECB documents, it must be observed that the second paragraph of Article 1 TEU enshrines the principle that the European Union’s decision-making process must be open. In this respect, Article 15(1) TFEU states that, in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3) TFEU, the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. The third subparagraph of Article 15(3) TFEU provides that each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU. The fourth subparagraph of Article 15(3) TFEU states that the Court of Justice of the European Union, the ECB and the European Investment Bank (EIB) are to be subject to that paragraph only when exercising their administrative tasks.

49 The rules applicable to the ECB in this area are governed by Decision 2004/258, which it adopted on the basis of Article 12.3 of the ESCB and ECB Statute and Article 23 of Decision 2004/257/EC of 19 February 2004 adopting the Rules of Procedure of the ECB (OJ 2004 L 80, p. 33).

50 Decision 2004/258 seeks, as recitals 2 and 3 thereof state, to authorise wider access to ECB documents than that which existed under the system established by Decision 1999/284/EC of 3 November 1998 concerning public access to documentation and the archives of the ECB (OJ 1999 L 110, p. 30), while at the same time protecting the independence of the ECB and of NCBs, and the confidentiality of certain matters specific to the performance of the ECB’s tasks. Article 2(1) of Decision 2004/258 thus gives any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, a right of access to ECB documents, subject to the conditions and limits defined in that decision.

51 That right is nonetheless subject to certain limits based on reasons of public or private interest.

52 More specifically, the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258 provide for exceptions to the right of access to a document where disclosure of the document would undermine the protection of the public interest as regards the confidentiality of the proceedings of the ECB’s decision-making bodies, the financial, monetary or economic policy of the European Union or a Member State and the stability of the financial system in the European Union or in a Member State.

53 Furthermore, the first indent of Article 4(2) of Decision 2004/258 provides for an exception to the right of access to a document where disclosure of the document would undermine the commercial interests of a natural or legal person, including intellectual property, unless there is an overriding public interest in disclosure.

54 The reasons for any decision on an application for access to documents adopted by the ECB on the basis of the exceptions set out in Article 4 of Decision 2004/258 must be stated (see, by analogy, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 48; of 11 March 2009, Borax Europe v Commission, T‑121/05, not published, EU:T:2009:64, paragraph 37; and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 96).

55 If the ECB decides to refuse to grant access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could actually and specifically undermine the interest protected by the exception provided for in Article 4 of Decision 2004/258 that it relies on (see, to that effect, judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 42). In the situations referred to in Article 4(2) and (3) of that decision, the ECB is also required to explain whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned (see, by analogy, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 49, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 96).

56 It is therefore for the ECB to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the document requested does in fact fall within the area covered by the exception relied on and, second, whether the need for protection to which that exception relates is genuine (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 61, and of 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 99).

57 It is in the light of the above considerations that it is necessary to examine whether, in the present case, the reasons given in the express decision were sufficient to justify the refusal to grant access to the ceiling for the provision of emergency liquidity in question.

58 In the express decision, the ECB claims that disclosure of the ceiling for the provision of emergency liquidity in question would undermine the protection of the public interest as regards, first, the confidentiality of the proceedings of the ECB’s decision-making bodies, second, the financial, monetary or economic policy of the European Union or a Member State, and, third, the stability of the financial system in the European Union or in a Member State, and that the refusal to grant access to that information was therefore justified under the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258. It also relied on the exception provided for in the first indent of Article 4(2) of that decision, which seeks to protect the commercial interests of a natural or legal person.

59 Moreover, the ECB explained in greater detail why it considered that disclosure of the ceiling for the provision of emergency liquidity in question was likely to be damaging to the protected interests.

60 In that regard, it explained how the provision of emergency liquidity operates and the role of the ECB as set out in Article 14.4 of the ESCB and ECB Statute. It added that all decisions to grant, extend or increase emergency liquidity assistance to BES had been taken by Banco de Portugal, subject to an upper limit to which the Governing Council had indicated that it had no objection, in accordance with Article 14.4 of the ESCB and ECB Statute, as recorded in the minutes of the Governing Council’s meetings in that regard. In that context, the ECB drew the applicant’s attention to the first indent of Article 4(1)(a) of Decision 2004/258 and to Article 10.4 of the ESCB and ECB Statute.

61 In particular, with regard to the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258, the ECB indicated that the procedure for the resolution of BES was still ongoing and that that process entailed the transfer of BES assets and liabilities to a new entity acting as a ‘bridge bank’, Novo Banco, which was undergoing a sale process and was operating in fragile market conditions. It also stated that Novo Banco, as the successor institution, was of systemic relevance for Portugal’s financial system and that disclosure of the ceiling for the provision of emergency liquidity in question would open the door to speculation by market participants on the liquidity position of the new bank and its financing needs, which might generate unwarranted funding pressures for it. It concluded that disclosure of the ceiling for the provision of emergency liquidity in question would entail a concrete risk of undermining the public interest as regards the stability of the financial system in Portugal and its financial, monetary or economic policy as a key stakeholder in the sale process relating to Novo Banco.

62 As regards the interest protected by the first indent of Article 4(2) of Decision 2004/258, the ECB referred to the considerations set out in the express decision concerning the refusal to grant the applicant access to the information that was redacted from the proposals of 28 July and 1 August 2014. It is apparent from those considerations that the ECB took the view that disclosure of ‘the overall amount of credit provided by the central bank’ would open the door to speculation by market participants on the liquidity position of Novo Banco, which was undergoing a sale process, and its financing needs and would therefore also entail a concrete risk of undermining its commercial interests. The ECB stated that it had not identified any overriding public interest that could justify disclosure of the amount in question. It added that the interest invoked by the applicant, namely the fact that it was a party to legal proceedings regarding the decisions and actions of Banco de Portugal, did not amount to an overriding public interest.

63 In response to the arguments put forward by the applicant, it must be noted that the exceptions laid down by Decision 2004/258 on which the ECB based its refusal to grant access to the ceiling for the provision of emergency liquidity in question, which was redacted from the extracts of the minutes recording the decision of 1 August 2014 disclosed to the applicant in response to its application, are abundantly clear from the reasons set out in the express decision.

64 It should also be noted that the ECB did not simply rely on the claim that disclosure of the amount in question would undermine the protection of the public interest as regards the confidentiality of the proceedings of the ECB’s decision-making bodies, the financial, monetary or economic policy of the European Union or a Member State, the stability of the financial system in the European Union or in a Member State and the protection of the commercial interests of a natural or legal person. On the contrary, it also provided certain specific reasons in that regard.

65 In the light of the case-law cited in paragraphs 54 to 56 above, it is therefore necessary to ascertain whether those reasons provide an adequate explanation of how disclosure of the ceiling for the provision of emergency liquidity in question could specifically and actually undermine the interests invoked, as protected by Article 4 of Decision 2004/258.

66 In the first place, as regards the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258, the ECB explained in the express decision that disclosure of the ceiling for the provision of emergency liquidity in question would entail the concrete risk of undermining the public interest as regards the stability of the financial system in Portugal and its financial, monetary or economic policy (see paragraph 61 above). It provided further details concerning, inter alia, the creation and situation of Novo Banco. It also indicated that Novo Banco, as successor to BES, was of systemic relevance for Portugal’s financial system and that disclosure of the amount in question would open the door to speculation by market participants on the liquidity position of the new bank and its financing needs.

67 It follows that the ECB indicated the reasons why it considered that access to the ceiling for the provision of emergency liquidity in question would specifically and actually undermine the interests invoked. Moreover, those reasons enabled the applicant to challenge those reasons on the ground that they were unfounded.

68 In the second place, with regard to the exception provided for in the first indent of Article 4(2) of Decision 2004/258, it is apparent from paragraph 62 above that the ECB considered, in the express decision, that disclosure of ‘the amount of overall credit provided by the central bank’ would entail the concrete risk of undermining the commercial interests of Novo Banco, as it would open the door to speculation by market participants on that bank’s liquidity position and its financing needs. In addition, the ECB indicated that, notwithstanding the threat to the protection of Novo Banco’s commercial interests, it had not identified an overriding public interest that would justify disclosure of the amount in question.

69 It should be noted in that regard that the applicant was in a position to understand that the explanations given in the express decision concerning the exception provided for in the first indent of Article 4(2) of Decision 2004/258 also applied to the ceiling for the provision of emergency liquidity in question.

70 Indeed, it is apparent from the express decision that the ECB’s reference to its considerations relating to the protection of the commercial interests identified in the part of that decision regarding its refusal to grant the applicant access to the information that had been redacted from its proposals of 28 July and 1 August 2014 also applied to the ceiling for the provision of emergency liquidity in question. Moreover, similar explanations may also be found in the reasons put forward to justify the application of the exceptions under the second and seventh indents of Article 4(1)(a) of Decision 2004/258 (see paragraphs 61 and 66 above) and expressly refer to the impact of disclosure of the ceiling for the provision of emergency liquidity in question on Novo Banco’s financial situation.

71 Accordingly, even though they could have been set out more clearly, the reasons provided in the express decision by the ECB are sufficient as regards the exception relating to the protection of commercial interests provided for in the first indent of Article 4(2) of Decision 2004/258. Furthermore, the explanations given in the express decision placed the applicant in a position to understand the reasons based on that exception and to challenge them on the basis that they were unfounded.

72 In the third place, with regard to the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, concerning the protection of the public interest as regards the confidentiality of the proceedings of the ECB’s decision-making bodies, it should be noted that the ECB indicated in the express decision that the extracts of the minutes recording the decision of 1 August 2014 had been provided to the applicant, with the exception of the ceiling for the provision of emergency liquidity in question, in line with that provision in Decision 2004/258 and Article 10.4 of the ESCB and ECB Statute.

73 Bearing in mind the wording of Article 4(1)(a) of Decision 2004/258 and given that Article 10.4 of the ESCB and ECB Statute provides that the proceedings of the meetings of the Governing Council are confidential, the applicant was in a position to understand, as the ECB submits in essence, that, in the express decision, the ECB had claimed confidentiality in respect of the proceedings of the Governing Council and the minutes of the latter’s meetings in order to justify, under the first indent of Article 4(1)(a) of Decision 2004/258, its refusal to disclose the ceiling for the provision of emergency liquidity in question.

74 Nevertheless, in the light of the case-law cited in paragraphs 54 to 56 above, such reasons are insufficient.

75 The ECB has failed to provide any explanation as to how disclosure of the ceiling for the provision of emergency liquidity in question, the amount of which was included in the minutes that were provided to the applicant in the form of extracts, from which that amount had, however, been redacted, could specifically and actually undermine the protection of the public interest as regards the confidentiality of the proceedings of the Governing Council. It merely referred to Article 10.4 of the ESCB and ECB Statute and to the first indent of Article 4(1)(a) of Decision 2004/258.

76 In that connection, it is appropriate to point out that the authors of the FEU Treaty clearly intended to ensure that the ECB should be in a position to carry out independently the tasks conferred upon it by the Treaty. The most direct evidence of that intention is in Article 130 TFEU. First, that provision expressly prohibits the ECB and the members of its decision-making bodies, when exercising the powers and carrying out the tasks conferred on the ECB by the FEU Treaty and the ESCB and ECB Statute, from seeking or taking instructions from EU institutions, bodies, offices or agencies, from any government of a Member State or from any other body. Second, it prohibits those institutions, bodies, offices or agencies and such governments from seeking to influence the members of the ECB’s decision-making bodies in the performance of their tasks. Article 130 TFEU therefore seeks, in essence, to shield the ECB from all political pressure in order to enable it effectively to pursue the objectives attributed to its tasks, through the independent exercise of the specific powers conferred on it for that purpose by the FEU Treaty and the ESCB and ECB Statute (see, to that effect, judgment of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraphs 130, 131 and 134).

77 Following that line of reasoning, the first sentence of Article 10.4 of the ESCB and ECB Statute provides that the proceedings of the meetings of the Governing Council are confidential. The purpose of that provision is to protect the deliberations of the Governing Council in order to safeguard its independence and to ensure that its decision-making process is effective, as submitted, in essence, by the ECB. Furthermore, it should be noted that those legitimate interests of the ECB are protected, under the regime established by Decision 2004/258, in particular by the first indent of Article 4(1)(a), as that provision lays down an exception to the rule that access will be given to a document where such disclosure would undermine the protection of the confidentiality of the proceedings of the ECB’s decision-making bodies, which include the Governing Council.

78 It follows that access to the minutes of meetings of the Governing Council may be refused in accordance with Article 4(1)(a) of Decision 2004/258, which must be interpreted and applied narrowly (see, to that effect, judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 73), in so far as they reflect the conduct of the proceedings within that council.

79 However, the situation is different as regards decisions taken by the Governing Council and, as a consequence, also as regards the minutes recording those decisions.

80 Indeed, under the second sentence of Article 10.4 of the ESCB and ECB Statute, the Governing Council may decide to make the outcome of its deliberations public. Therefore, its decisions do not enjoy absolute protection in so far as concerns their disclosure, and the discretion it has in that regard must be exercised in accordance with the conditions and limits laid down in Decision 2004/258, the aim of which is to make ECB documents as widely available to the public as possible.

81 In the present case, it follows that the ECB should have, first, explained why the amount not disclosed to the applicant, when giving only partial access to the document requested, fell within the area covered by the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258 and, second, provided a statement of reasons making it possible to understand and verify how, specifically and actually, disclosure of that information would undermine the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies. Such justification was all the more necessary as the amount in question was indicated in the extracts of the minutes recording the outcome of the Governing Council’s deliberations and not the conduct of the proceedings as such.

82 In the light of all the foregoing, the applicant’s arguments alleging breach of the duty to state reasons cannot be accepted in so far as they relate to the exceptions laid down in the second and seventh indents of Article 4(1)(a) of Decision 2004/258 and the first indent of Article 4(2) of that decision.

83 With regard to the Court’s finding that no adequate reasons were provided in respect of the exception under the first indent of Article 4(1)(a) of Decision 2004/258, it will be necessary, before determining the possible consequences of that finding, to examine whether the other exceptions invoked by the ECB — which the applicant claims are unfounded in its second and third pleas — may justify the refusal to disclose the ceiling for the provision of emergency liquidity in question.

(b) Breach of the second and seventh indents of Article 4(1)(a) of Decision 2004/258

84 In its second plea, the applicant maintains, inter alia, that the ECB was incorrect to base its refusal to disclose the ceiling for the provision of emergency liquidity in question on the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258. It claims, in essence, that the ECB’s arguments that disclosure of that ceiling could undermine the financial, monetary or economic policy of the European Union or of a Member State and the stability of the financial system in the European Union or in a Member State are vitiated by manifest errors of assessment.

85 The applicant submits that the ECB’s line of argument in the express decision that disclosure of the ceiling for the provision of emergency liquidity in question could give rise to speculation by market participants on Novo Banco’s liquidity position and its financing needs, which could, in turn, lead to unwarranted funding difficulties, is incorrect. It states that, between the decisions of 28 July and 1 August 2014 and the express decision, BES was subject to a resolution procedure entailing the creation of Novo Banco, to which BES assets deemed non-problematic were transferred. It also states that Novo Banco, a new entity different from BES, was recapitalised, that it showed no sign of being distressed and that its current situation is totally different from that of BES on 1 August 2014. It adds that, by 3 August 2014, Banco de Portugal had already disclosed the amount actually provided to BES by way of emergency liquidity assistance and that the factual circumstances surrounding the resolution of BES had been made public.

86 Moreover, the applicant contends that disclosure of the ceiling for the provision of emergency liquidity in question cannot undermine the completion of the procedure for the resolution of BES, which, as a result of the measures adopted by Banco de Portugal, no longer engages in any kind of activity and is waiting to be liquidated.

88 It is necessary to examine whether the applicant’s arguments are such as to call into question the basis of the ECB’s claim that the refusal to disclose the ceiling for the provision of emergency liquidity in question and, therefore, the partial rejection of the application for access to the decision of 1 August 2014, are justified under the second and seventh indents of Article 4(1)(a) of Decision 2004/258.

89 As is apparent from paragraph 61 above, in support of that claim, the ECB submitted in the express decision that disclosure of the ceiling for the provision of emergency liquidity in question would entail the concrete risk of undermining the public interest as regards the stability of the financial system in Portugal and its financial, monetary or economic policy. It argued in that regard that the procedure for the resolution of BES was still ongoing at the time the express decision was taken. Next, it stated that the resolution procedure entailed the transfer of BES assets and liabilities to a new entity, Novo Banco, which acted as a ‘bridge bank’ and was undergoing a sale process in which the key stakeholder was Portugal. It also stated that Novo Banco was operating in fragile market conditions and that, as successor to BES, it was of systemic relevance for Portugal’s financial system. Lastly, it claimed that disclosure of the ceiling for the provision of emergency liquidity in question would open the door to speculation by market participants on the liquidity position of the new bank and its financing needs, which might generate unwarranted funding pressures for it.

90 In that regard, it should be noted, first of all, that the ECB enjoys wide discretion when determining whether disclosure of information contained in the documents requested by the applicant could undermine the public interest as regards the areas covered by the exceptions laid down in the second and seventh indents of Article 4(1)(a) of Decision 2004/258 (see, to that effect, judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 53 and the case-law cited).

91 Furthermore, it is clear from the case-law cited in paragraph 55 above that, if the ECB decides to refuse access to a document which it has been asked to disclose under Article 4(1) of Decision 2004/258, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by the exception — among those provided for in that provision — upon which it is relying. The likelihood of that interest being compromised must be reasonably foreseeable and not purely hypothetical (see judgment of 29 November 2012, Thesing and Bloomberg Finance v ECB, T‑590/10, not published, EU:T:2012:635, paragraph 42 and the case-law cited).

92 It is in the light of those principles that the Court must determine whether it was reasonably foreseeable, as the ECB claims, that disclosure of the ceiling for the provision of emergency liquidity in question would open the door to speculation by market participants on the liquidity position of Novo Banco and its financing needs and might generate unwarranted funding pressures for it, or, in essence, have a negative impact on its sale process, thus giving rise to the risk of undermining the public interest as regards, on the one hand, the stability of the financial system in Portugal and, on the other, its financial, monetary or economic policy.

93 It should be noted in that regard that, as acknowledged by case-law, it is common for market participants to use the information disclosed by central banks, since their analyses and decisions are considered a particularly important and reliable source to assess current and prospective financial market developments (see judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraph 78 and the case-law cited).

94 In the present case, it should be observed that Novo Banco is a bridge bank in relation to BES and was created as part of the procedure for the resolution of BES as a result of its financial difficulties. Moreover, a number of assets, liabilities, off-balance sheet items and assets under management were transferred from BES to Novo Banco and the process for the sale of BES was still ongoing when the express decision was taken.

95 The Court also observes that the applicant has not put forward any arguments or evidence capable of calling into question the ECB’s contention, in the express decision, that Novo Banco was of systemic relevance for Portugal’s financial system and that, at the time the express decision was adopted, it was operating in fragile market conditions in Portugal.

96 Furthermore, the ECB’s claim that Portugal is a key stakeholder in the process for the sale of Novo Banco may be endorsed, as it is apparent from the Commission’s decision of 3 August 2014 that the Portuguese authorities granted credit to the Portuguese Resolution Fund, which subsequently injected capital into Novo Banco. That claim is not, moreover, contested by the applicant.

97 In the light of the foregoing, it was reasonably foreseeable, as the ECB maintains, that disclosure of the ceiling for the provision of emergency liquidity in question was likely, at the time the express decision was adopted, to open the door to speculation by market participants on Novo Banco’s liquidity position and its financing needs and to generate unwarranted funding pressures for it, or to have, in essence, a negative impact on its sale process, thus giving rise to the risk of undermining the public interest as regards, on the one hand, the stability of the financial system in Portugal and, on the other, its financial, monetary or economic policy.

99 First, as regards the argument that Novo Banco is a new, recapitalised entity which shows no sign of being distressed and whose financial position is very different from that of BES as it was on 1 August 2014, it should be noted that the applicant seeks to justify that assertion merely by reference to the presentation given by Novo Banco on 9 March 2015 of its results for the period from 4 August to 31 December 2014.

100 Moreover, it should be recalled that, as is apparent from the decision of Banco de Portugal of 3 August 2014, Novo Banco is a bridge bank in relation to BES and was created against the background of the liquidity crisis faced by BES (see paragraphs 2 to 6 above) in order to protect, inter alia, depositors and, ultimately, to ensure the stability of the financial system in Portugal and its financial and economic policy.

101 Therefore, even if the liquidity position and financing needs of Novo Banco had improved considerably by the time the express decision was adopted, disclosure of the ceiling for the provision of emergency liquidity in question could have had a negative impact on the perception of its financial situation by market participants, as a number of BES assets, liabilities, off-balance sheet items and assets under management had been transferred to Novo Banco, the liquidity crisis faced by BES before it was placed under a resolution procedure was considerable and the period between the creation of Novo Banco and the adoption of the express decision, that is, approximately eight months, was relatively short.

102 Accordingly, as the ECB contends, there continued to be a risk that the information in question might be perceived as an indication of the vulnerability of Novo Banco, which could have brought about an unwarranted liquidity crisis for that bank and given rise to the risk, given the systemic relevance of that bank and the fact that the Portuguese financial market was still vulnerable, that the financial stability of Portugal and its financial and economic policy may be undermined.

103 Secondly, as regards the argument that, by 3 August 2014, Banco de Portugal had already disclosed the amount actually provided to BES by way of emergency liquidity assistance and the fact that the factual circumstances surrounding the resolution of BES had been made public, it is sufficient to point out, as the ECB was correct to observe, that the ceiling for the provision of emergency liquidity in question was not disclosed by Banco de Portugal and that Banco de Portugal’s decision of 3 August 2014 concerning the creation of Novo Banco gives only an approximate figure for the amount paid to BES in respect of emergency liquidity assistance, namely EUR 3.5 billion.

104 Thirdly, as regards the argument that disclosure of the ceiling for the provision of emergency liquidity in question cannot compromise the outcome of the procedure for the resolution of BES, it is clear that the reasons put forward by the ECB to justify its refusal to disclose that ceiling on the basis of the second and seventh indents of Article 4(1)(a) of Decision 2004/258 focus on the effects of disclosure of that information on Novo Banco and, as a result, on the financial stability of Portugal and its financial and economic policy.

105 Admittedly, the ECB mentions, in the express decision, the fact that the procedure for the resolution of BES was still ongoing at the time the express decision was adopted. However, that procedure was not referred to in order to suggest that disclosure of the ceiling for provision of emergency liquidity in question would compromise the resolution of BES as a winding-down structure but was instead intended to explain the context in which Novo Banco, the bridge bank in relation to BES, was created.

106 Therefore, as regards the ceiling for provision of emergency liquidity in question, the ECB concluded, without making any manifest error of assessment, that the requirements laid down in the second and seventh indents of Article 4(1)(a) of Decision 2004/258 were met.

107 Furthermore, as regards the applicant’s argument concerning the disclosure of the approximate percentage of the ceiling for the provision of emergency liquidity in question that the amount actually paid by Banco de Portugal to BES represented, and therefore alleging, in essence, that broader access should have been given to the amount at issue on the basis of Article 4(5) of Decision 2004/258, under which it is possible to gain partial access to the document requested if only part of it is covered by any of the exceptions, it should be noted that that provision does not require the ECB, where an application for access to documents has been addressed to that institution, to replace the parts of those documents for which disclosure is legitimately refused in accordance with the exceptions set out in that decision by ranges where the data concerned are in figures (see, by analogy, judgment of 13 September 2013, Netherlands v Commission, T‑380/08, EU:T:2013:480, paragraph 94).

108 It is clear from all the foregoing that the second plea must be rejected in so far as it is directed at the refusal to disclose the ceiling for the provision of emergency liquidity in question on the basis of the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258.

109 It also follows that there is no need to adjudicate on the third plea, based on the first indent of Article 4(2) of Decision 2004/258, under which access to a document will not be granted if its disclosure would undermine the protection of the commercial interests of a natural or legal person, including intellectual property, unless there is an overriding public interest in disclosure. Indeed, under the overall scheme of Article 4 of Decision 2004/258, refusal to grant an application for access is justified where the requirements laid down by one of the exceptions provided for in that article are met. In the present case, such a refusal may be based on the second and seventh indents of Article 4(1)(a) of Decision 2004/258. Therefore, even if the complaints directed against the first indent of Article 4(2) of that decision were well founded, they are not such as to call into question the justification for refusing to disclose the amount in question.

110 The same applies with regard to the consequences of the failure to state adequate reasons in the express decision established in paragraphs 72 to 81 above in connection with the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, concerning the protection of the confidentiality of the proceedings of the ECB’s decision-making bodies, as well as the applicant’s arguments alleging breach of that provision, raised in the second plea.

111 In order to challenge the refusal to disclose the amount of credit in question, which was granted to BES, its branches and subsidiaries through Eurosystem monetary policy instruments, the applicant relies on the same complaints as those put forward in contesting the refusal to disclose the ceiling for the provision of emergency liquidity in question. In particular, in the first plea, it contends that the express decision does not provide adequate reasons. In the second plea, it maintains that the ECB infringed the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258 and, in the third plea, it alleges breach of the first indent of Article 4(2) of that decision.

112 As with the refusal to grant access to the ceiling for the provision of emergency liquidity in question, the applicant contends that, in the express decision, the ECB set out only general considerations regarding the exceptions relied on in refusing access to the amount of credit in question. Moreover, it maintains that the express decision does not provide any justification for the refusal to disclose the information requested in reliance on the exception based on the confidentiality of the proceedings of the ECB’s decision-making bodies laid down in the first indent of Article 4(1)(a) of Decision 2004/258.

114 As a preliminary point, it should be noted that, in order to achieve the objectives of the ESCB and to carry out its tasks, Article 18.1 of the ESCB and ECB Statute authorises the ECB and NCBs to, inter alia, conduct credit operations with credit institutions and other market participants, with lending being based on adequate collateral. Those Eurosystem credit operations take the form, inter alia, of temporary transfer operations for the provision of liquidity.

115 It is in the light of the considerations set out in paragraphs 45 to 56 above that it is necessary to examine whether, in the present case, the reasons given in the express decision were sufficient to justify the refusal to disclose the amount of credit in question.

116 In the express decision, the ECB contended that disclosure of the amount of credit in question would undermine the protection of public interest as regards (i) the confidentiality of the proceedings of the ECB’s decision-making bodies, (ii) the financial, monetary or economic policy of the European Union or of a Member State and, (iii) the stability of the financial system in the European Union or in a Member State, and that its refusal to grant access to that information was therefore justified in accordance with the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258. It also relied on the exception provided for in the first indent of Article 4(2) of that decision, which seeks to protect the commercial interests of a natural or legal person.

117 Therefore, as was found with regard to the ceiling for the provision of emergency liquidity in question, the exceptions laid down by Decision 2004/258 on which the ECB based its refusal to grant access to the amount of credit in question, which was redacted from the extracts of the minutes recording the decision of 28 July 2014 disclosed to the applicant in response to its application, are abundantly clear from the reasons set out in the express decision.

118 Furthermore, it should be noted that the ECB also gave a number of reasons by way of justification for its conclusion that disclosure of the amount in question would undermine the protection of the interests at stake.

119 As regards the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258, it is sufficient to refer to the considerations set out in paragraphs 66 and 67 above, as the reasons put forward by the ECB in that regard are the same as those given in relation to the ceiling for the provision of emergency liquidity in question.

120 Next, with regard to the exception provided for in the first indent of Article 4(2) of Decision 2004/258, the ECB stated in the express decision that disclosure of ‘the amount of overall credit provided by the central bank’ would entail the concrete risk of undermining Novo Banco’s commercial interests as it would open the door to speculation by market participants on the latter’s liquidity position and its financing needs. In addition, the ECB indicated that, notwithstanding the undermining of the protection of Novo Banco’s commercial interests, it had not identified any overriding public interest in disclosure of the amount in question.

121 It follows that the ECB stated the reasons why it considered that disclosure of the amount of credit in question would actually and specifically undermine the interests at stake. Moreover, those reasons placed the applicant in a position to challenge them on the ground that they were unfounded.

122 Lastly, with regard to the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, concerning the protection of the public interest as regards the confidentiality of the proceedings of the ECB’s decision-making bodies, it is clear from a reading of the express decision that, according to the ECB, that information was protected by that provision as it was included in the minutes of a meeting of the Governing Council. Moreover, it is apparent from the decision on the initial application and the annexes thereto, which form part of the context in which the express decision was adopted and must be taken into account, in line with the case-law cited in paragraph 47 above, that the amount of credit in question was in fact indicated in the minutes recording the decision of 28 July 2014, extracts of which were provided to the applicant. Furthermore, in the decision on the initial application the ECB refers to Article 10.4 of the ESCB and ECB Statute to justify its refusal to disclose the name of a member of the Governing Council referred to in the minutes recording the decision of 28 July 2014.

123 Accordingly, the Court finds that the applicant was in a position to understand, in the light of the wording of Article 4(1)(a) of Decision 2004/258 and that of Article 10.4 of the ESCB and ECB Statute, that the ECB had based its decision on considerations relating to confidentiality in respect of the proceedings of the Governing Council and that of the minutes of the latter’s meetings to justify, on the basis of the first indent of Article 4(1)(a) of Decision 2004/258, its refusal to disclose the amount of credit in question.

124 Nevertheless, it is clear, in the light of the case-law cited in paragraphs 54 to 56 above and the considerations set out in paragraphs 75 to 81 above, that such a statement of reasons is not sufficient to justify a partial refusal to disclose extracts of the minutes of decisions of the Governing Council on the basis of the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258. Indeed, the ECB should have, first, explained the reasons why the amount not disclosed to the applicant, when giving partial access to the document requested, fell within the area covered by the exception provided for by the first indent of Article 4(1)(a) of Decision 2004/258 and, second, provided a statement of reasons that would have made it possible to understand and verify how, specifically and actually, access to that information would have undermined the public interest as regards the confidentiality of proceedings of the ECB’s decision-making bodies.

125 In the light of all the foregoing, the applicant’s arguments alleging breach of the duty to state reasons cannot succeed in so far as they relate to the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258 and the first indent of Article 4(2) of that decision.

126 With regard to the Court’s finding that the ECB failed to provide an adequate statement of reasons with regard to the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, it is necessary, before going on the determine the possible consequences of that failure, to consider whether the other exceptions relied on by the ECB, namely those laid down in the second and seventh indents of Article 4(1)(a) and the first indent of Article 4(2) of that decision, which are challenged by the applicant on the basis that such reliance is unfounded in the second and third pleas, are capable of justifying the refusal to disclose the amount of credit in question.

(1) Breach of the second and seventh indents of Article 4(1)(a) of Decision 2004/258

127 The applicant maintains, inter alia, in the second plea, with regard to the amount of credit in question, that the ECB was incorrect to base its refusal to disclose that amount, which was redacted from the extracts of the minutes recording the decision of 28 July 2014, on the exceptions provided for in the second and seventh indents of Article 4(1)(a) of Decision 2004/258. It argues, in essence, that the reasons given by the ECB, namely that disclosure of the amount of credit in question could undermine the financial, monetary or economic policy of the European Union or of a Member State and the stability of the financial system in the European Union or in a Member State, are vitiated by manifest errors of assessment.

128 As with its arguments concerning the refusal to disclose the ceiling for the provision of emergency liquidity in question, the applicant calls into question the ECB’s argument in the express decision that disclosure of the amount of credit in question could provide market participants with an opportunity to speculate on Novo Banco’s liquidity position and its financing needs, which might, in turn, lead to unwarranted funding pressures for it. The applicant argues, inter alia, that Novo Banco is a new entity, different from BES, to which BES assets deemed non-problematic were transferred, and that it was recapitalised and shows no signs of being distressed. It adds that the factual circumstances surrounding the resolution of BES had been made public.

130 The ECB submits, inter alia, that the applicant’s reasoning is based on incomplete facts as regards Novo Banco’s financial situation in spring 2015. It also states that, during that period, Novo Banco was operating in still fragile market conditions. It observes that, while Novo Banco was formally a separate entity from BES, in essence it carried on the latter’s business. In the light of that circumstance, and the fact that Novo Banco is of systemic relevance for the Portuguese economy, the risks related to the disclosure of the amounts at issue for the financial, monetary or economic policies of Portugal and the stability of its financial system remained unchanged.

131 Furthermore, the ECB submits that it could have reasonably expected that market operators would use the information on the amount of credit in question, if disclosed by the ECB itself, as an essential source for assessing Novo Banco’s financial position, and that they would start to speculate on Novo Banco’s liquidity position and financing needs. This would have led to unwarranted funding difficulties and would have affected the stability of the bank, the process for the sale of that bank and the stability of the financial system. According to the ECB, those risks were reasonably foreseeable and disclosure of the amount in question would have undermined the proper functioning of the Portuguese financial markets and, most probably, that of other European Union financial markets, bearing in mind also the still vulnerable market environment and the systemic relevance of Novo Banco for the Portuguese economy.

132 Moreover, the ECB observes that publication of information on Eurosystem credit operations may undermine the effectiveness of the monetary policy and financial stability of the European Union. In that context, it argues that if the amounts committed to Eurosystem credit operations were to be published, the credit institutions may be deterred, having regard to the risks related to the interpretation of that information by third parties, from participating in such operations and it would be more difficult, or even impossible, for the Eurosystem to conduct its monetary policy operations effectively. It also states that disclosure by the ECB itself of the amount of credit in question would have been a major breach of the prudent communication policy pursued by the Eurosystem and set an undesirable precedent for the future.

133 It is necessary verify, in the light of the principles referred to in paragraphs 90 and 91 above, whether the ECB was entitled to refuse to disclose to the applicant the amount of credit in question on the basis of the second and seventh indents of Article 4(1)(a) of Decision 2004/258 and to grant only partial access to the extracts of the minutes recording the decision of 28 July 2014.

134 It is apparent from the express decision that the ECB justifies that conclusion on the same grounds as those put forward to justify the refusal to disclose the ceiling for the provision of emergency liquidity in question (see paragraph 89 above). In its view, disclosure of the amount of credit in question would entail the concrete risk of undermining the public interest as regards the stability of the financial system in Portugal and its financial, monetary or economic policy because it would open the door to speculation by market participants on the liquidity position of Novo Banco, a bank of systemic relevance, and on its financing needs, and might generate unwarranted funding pressures for it, or have, in essence, a negative impact on its sale process, in which the key stakeholder was Portugal.

135 In that regard, it should be recalled that the ECB and NCBs may, in accordance with Article 18.1 of the ESCB and ECB Statute, conduct credit operations with credit institutions and other market operators in order to achieve the objectives of the ESCB, as laid down in Article 127(1) TFEU and Article 2 of that statute. Those operations include temporary transfer operations for the provision of liquidity.

136 Furthermore, as noted in paragraphs 4 and 5 above, the Governing Council decided, on 28 July 2014, to maintain BES’s access to Eurosystem credit operations and, as a consequence, to retain its status as an eligible counterparty for participation in such operations. Nevertheless, 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. Subsequently, on 1 August 2014, that is, four days later, the Governing Council suspended access by BES and its branches, with effect from 4 August 2014, to monetary policy credit instruments, on grounds of prudence, and ordered BES to repay, no later than the same date, all of the credit granted to it in the context of the Eurosystem. It is clear from the documents before the Court and what the ECB said at the hearing of oral argument that the debt corresponding to that credit was transferred to Novo Banco.

137 Moreover, as stated in paragraphs 94 to 96 above, Novo Banco is a bridge bank in relation to BES and Portugal is a key stakeholder in the process for the sale of Novo Banco, which was ongoing at the time the express decision was adopted. It should also be recalled that Novo Banco is a bank of systemic relevance for the Portuguese financial system and that, at the time the express decision was adopted, it carried on its activities in fragile market conditions in Portugal.

138 In the light of those circumstances and the case-law cited in paragraph 93 above, disclosure by the ECB of the amount of credit in question might therefore have been used, even at the time the express decision was adopted, by market participants to evaluate Novo Banco’s financial position.

139 However, in a case such as the present, it was not reasonably foreseeable that disclosure of that amount, at the time the express decision was adopted, would have had the consequences claimed by the ECB and risked undermining the public interest of Portugal as regards the stability of its financial system and its financial, monetary and economic policy.

140 In the first place, it should be noted that, according to case-law, in assessing whether there is a risk that the public interest concerned may be undermined, account must be taken of the fact that the essential content of the information requested has already been made public (see, to that effect and by analogy, judgment of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 60).

141 In the present case, it should be noted that, in its decision of 3 August 2014 relating to the creation of Novo Banco, Banco de Portugal publicly disclosed the approximate amount of credit granted to BES in the context of the Eurosystem, that is, approximately EUR 10 billion. That circumstance and the fact that that decision was in the public domain are not contested by the ECB.

142 Admittedly, as the ECB indicated at the hearing, Banco de Portugal did not disclose the precise amount given in the minutes recording the decision of 28 July 2014, merely indicating an approximate figure.

143 However, that fact cannot alter the conclusion that, at the time the express decision was taken, the approximate amount of the credit in question had already been made public.

144 The ECB did not claim before the Court that the information disclosed by Banco de Portugal was not accurate. Moreover, it stated, in the express decision, that the amount the applicant sought disclosure of was the amount granted to BES in the context of the Eurosystem. It also acknowledged at the hearing that Novo Banco began operating, on 4 August 2014, with, inter alia, debts corresponding to EUR 10 billion credit from the Eurosystem, which had been transferred from BES.

145 The ECB’s other arguments cannot call into question the conclusion in paragraph 143 above.

146 In so far as the ECB claims that it was not consulted before publication of Banco de Portugal’s decision of 3 August 2014 on the latter’s website and that the approximate amount of the credit granted to BES in the context of the Eurosystem should not be in the public domain, it is sufficient to note that those arguments are ineffective, as the fact that such disclosure may have been unlawful is irrelevant for the purpose of assessing whether there was a risk of undermining the public interest in question (see, by analogy, judgment of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 60). Furthermore, the ECB does not specify the provisions which, it alleges, would have prevented Banco de Portugal from making public the approximate amount of the credit granted to BES in the context of the Eurosystem or which required the prior consultation of the ECB in that regard.

147 In the second place, in view of the importance of Banco de Portugal’s decision of 3 August 2014 concerning the creation of Novo Banco and intended to stabilise the financial crisis affecting BES, the ECB could not have been unaware of the fact that the approximate amount of the credit in question had, at the time the express decision was adopted, been made public.

148 Furthermore, in so far as the ECB claimed, in response to a written question put by the Court, that the effects of disclosure by Banco de Portugal cannot be compared with the impact which disclosure by the ECB would have had, it is obvious that Banco de Portugal is a national authority which plays a vital role in the financial, monetary or economic policy of Portugal and in protecting the stability of its financial system and, as a consequence, in connection with the public interest which, in justifying the refusal to disclose the amount of the credit in question, the ECB claims must be protected.

149 Moreover, the ECB has not argued that disclosure of the approximate amount of the credit granted to BES in the context of the Eurosystem by Banco de Portugal in August 2014, that is, before the adoption of the express decision, would have undermined the stability of the financial system in Portugal or its financial, monetary or economic policy.

150 In those circumstances, the ECB cannot claim that disclosure by it of the amount of credit in question at the time the express decision was adopted could have been a destabilising factor with regard to Novo Banco’s prospects and given rise to speculation as to its financial situation and, as a consequence, undermined the public interest as regards, on the one hand, the stability of the financial system in Portugal and, on the other, its financial, monetary or economic policy. The ECB should have taken account of the fact that, at the time the express decision was taken, the approximate amount of the credit granted to BES in the context of the Eurosystem had already been in the public domain for several months, as a result of the information disseminated by Banco de Portugal on 3 August 2014, which was intended, inter alia, to stabilise the financial crisis affecting BES and to bolster the markets’ confidence in its bridge bank.

151 Furthermore, in so far as the ECB has put forward arguments before the Court concerning the European Union’s own interests to justify the refusal to disclose the amount of credit in question under the second and seventh indents of Article 4(1)(a) of Decision 2004/258 (see paragraph 132 above), it is sufficient to note that such arguments were not made in the express decision and cannot be put forward for the first time before the Court. According to case-law, other than in exceptional circumstances, the statement of reasons must be contained in the decision itself, and it is not sufficient for it to be explained subsequently for the first time before the Court (see, to that effect, judgment of 27 November 2007, Pitsiorlas v Council and ECB, T‑3/00 and T‑337/04, EU:T:2007:357, paragraph 278 and the case-law cited).

152 It follows that the second plea is well founded in so far as it concerns the amount of credit in question, which was deleted from the extracts of the minutes recording the decision of 28 July 2014, and alleges breach of the second and seventh indents of Article 4(1)(a) of Decision 2004/258.

153 In the third plea, as regards the amount of credit in question, the applicant submits that the ECB was incorrect to base its refusal to disclose that amount, which was deleted from the extracts of the minutes recording the decision of 28 July 2014, on the exception provided for in the first indent of Article 4(2) of Decision 2004/258, concerning the protection of the commercial interests of a natural or legal person.

154 It states, in that regard, that the current financial situation of Novo Banco is different from that of BES on 1 August 2014 and that the amount of credit in question cannot be considered to be commercially sensitive information which could damage the commercial interests of Novo Banco. It also claims, in essence, that BES and Novo Banco are not the same entity, that the information requested concerns only BES and that it was requested when Novo Banco had already been created.

156 It submits that, at the time the express decision was adopted, the BES resolution procedure was still ongoing. It also states that Novo Banco, the economic successor of BES, was of systemic relevance for Portugal’s financial system, was the subject of a sales process and carried on its activities in still fragile market conditions. Against that background, disclosure of the amount of credit in question would have opened the door to speculation by market participants on Novo Banco’s liquidity position and its financing needs, which could have generated unwarranted funding pressures for it. According to the ECB, it is obvious that the amount of the credit in question was commercially sensitive information, protected by the first indent of Article 4(2) of Decision 2004/258. Moreover, the ECB contends that the applicant has not demonstrated that there was an overriding public interest in disclosure of the information concerned in the present case.

157 In the express decision, the ECB put forward arguments similar to those relied on to justify the refusal to disclose the amount of credit in question under the second and seventh indents of Article 4(1)(a) of Decision 2004/258, namely, in essence, that disclosure of that amount would open the door to speculation by market participants as to Novo Banco’s liquidity position and is financing needs, which would entail the concrete risk of undermining Novo Banco’s commercial interests.

158 In that regard, it should be recalled that disclosure of the amount of credit in question by the ECB might have been used, in principle, even at the time the express decision was adopted, by market operators to evaluate Novo Banco’s financial position (see paragraphs 135 to 138 above).

159 Nevertheless, in circumstances such as those of the present case and for the reasons set out in paragraphs 140 to 149 above, the risk that the commercial interests of Novo Banco might be undermined by disclosure of the amount of credit in question was not reasonably foreseeable, in the light of the information disclosed by Banco de Portugal before the express decision was adopted. Moreover, as is apparent from the presentation given by Novo Banco on 9 March 2015 of its results for the period from 4 August 2014 to 31 December 2014, that bank had itself, before the adoption of the express decision, made public detailed information on its financial situation as at 4 August 2014 and, therefore, following the transfer of a number of BES assets, liabilities, off-balance sheet items and assets under management.

160 It follows from the foregoing that the third plea is also well founded, in so far as it concerns the amount of credit in question, which was deleted from the extracts of the minutes recording the decision of 28 July 2014, and alleges breach of the first indent of Article 4(2) of Decision 2004/258.

(3) Conclusion as regards the refusal to disclose the amount of credit in question

161 In the light of all the foregoing observations concerning the refusal to disclose the amount of credit in question, it must be concluded that the express decision is not supported by a statement of reasons of the requisite legal standard as regards the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258. Furthermore, the ECB cannot base its refusal to disclose the amount of credit in question on the other exceptions relied on, namely those laid down in the second and seventh indents of Article 4(1)(a) and the first indent of Article 4(2) of Decision 2004/258. Accordingly, the express decision must be annulled in so far as it refuses to disclose to the applicant the amount of credit in question, which was deleted from the extracts of the minutes recording the decision of 28 July 2014 provided to the applicant.

3. The refusal to disclose the information redacted from the proposals of 28 July and 1 August 2014

162 As mentioned in paragraph 39 above, in the fourth plea the applicant submits that the express decision does not provide adequate reasons in so far as concerns the refusal to disclose the passages requested from the proposals of 28 July and 1 August 2014 which were redacted from the documents provided to it in response to its confirmatory application (see paragraphs 12 and 15 above).

163 The fourth plea, which is divided into five parts, formally alleges only breach of the duty to state reasons.

164 In the first part of the fourth plea, which it is appropriate to examine first, the applicant submits, in essence, that the express decision is vitiated by an inadequate statement of reasons, in so far as the ECB did not give specific reasons in relation to each passage redacted from the proposals of 28 July and 1 August 2014 and the applicant was therefore not in a position either to ascertain the type of information the redacted passages contained or to determine whether the four exceptions relied on by the ECB to justify their non-disclosure had been applied correctly. In the reply, the applicant submits that the fact that, in the defence, the ECB provided certain explanations in that regard does not make up for its failure to comply with the obligation to state reasons in the express decision.

165 In reply, the ECB contends that the express decision contains sufficient explanations and elaboration in respect of each exception invoked. It adds that it made the deletions in the documents concerned in such a way that the applicant was able to understand the type of information contained in the redacted parts that was withheld and to infer without any difficulty the exception applied in respect of each deletion.

166 In the rejoinder, the ECB claims that it did not supplement the grounds of the express decision in the defence and that it simply supported its arguments by use of examples.

167 Moreover, the ECB considers that the proposals of 28 July and 1 August 2014 are covered, subject to Article 4(5) of Decision 2004/258, by the exception provided for in Article 4(3) of that decision, which seeks to protect the proposals of the Executive Board as documents containing opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBs. It concludes from this that, irrespective of the fact that the redacted parts of the proposals at issue may be covered by other exceptions provided for in Article 4 of Decision 2004/258, they are protected under Article 4(3) of that decision. It adds that, for the same reasons, it was not required to provide more detailed explanations in the express decision.

168 As a preliminary point, it should be noted that it is in the light of the considerations set out in paragraphs 54 to 56 above that the arguments raised by the applicant in the first part of the fourth plea must be examined.

169 It should also be noted that, by the express decision, the ECB disclosed to the applicant additional information from the proposals of 28 July and 1 August 2014 and, as to the remainder, confirmed its refusal to disclose the other passages redacted from those proposals (see paragraph 15 above). It stated that disclosure of those passages would undermine, first, the protection of the public interest as regards the financial, monetary or economic policy of the European Union or of a Member State (second indent of Article 4(1)(a) of Decision 2004/258), second, the protection of the public interest as regards the stability of the financial system in the European Union or in a Member State (seventh indent of Article 4(1)(a) of Decision 2004/258), third, the protection of the commercial interests of a natural or legal person (first indent of Article 4(2) of Decision 2004/258) and, fourth, the protection of opinions for internal use as part of deliberations and preliminary consultations within the ECB or with NCBs (Article 4(3) of Decision 2004/258).

170 With regard to the interests protected under the second and seventh indents of Article 4(1)(a) of Decision 2004/258, first, the ECB stated that a smooth implementation of its monetary policy and its effective transmission to the real economy relies, to a large extent, on the financial soundness of its counterparties and, more broadly, on the financial soundness of the financial system that the Eurosystem serves. The ECB also explained how the system for determining whether counterparties are eligible to participate operates and pointed out that the Governing Council may, to ensure prudent risk-management in accordance with Section 2.4 of Annex I to ECB Guideline 2011/817/EU of 20 September 2011 on monetary policy instruments and procedures of the Eurosystem (OJ 2011 L 331, p. 1), apply a discretionary measure on the grounds of prudence where it considers that a counterparty is no longer financially sound. It also indicated that that guideline is complemented by non-public rules for the internal use of the Eurosystem, which are aimed, inter alia, at the criterion of financial soundness being interpreted and applied in a harmonised manner across all Eurosystem NCBs. It took the view that those parts of the proposals of 28 July and 1 August 2014 that concerned those rules could not be disclosed as they are directly related to the implementation of monetary policy, and that public disclosure of those rules could have an adverse effect on the effectiveness of operational or legal activities of the Eurosystem. Lastly, the ECB stated, in essence, that no weighing up of an overriding public interest is provided for in Article 4(1) of Decision 2004/258.

171 With regard to the private interest protected by the first indent of Article 4(2) of Decision 2004/258, the ECB considers that disclosure of the ‘amount of overall credit provided by the central bank’ would open the door to speculation by the market participants on the liquidity position of Novo Banco, which was undergoing a sales process, and on its financing needs, therefore giving rise to the concrete risk that Novo Banco’s commercial interests would also be undermined. The ECB stated that it had not identified a public interest that would justify disclosure of the amount in question and that it was not possible to grant partial access to the information requested without undermining the interest protected by the first indent of Article 4(2) of Decision 2004/258.

172 With regard to the exception provided for by Article 4(3) of Decision 2004/258, the ECB indicated that the undisclosed parts of the Executive Board’s proposals contain, inter alia, information of a preliminary nature for internal use, received as part of internal consultations between the ECB and Banco de Portugal, as well as internal views and assessments concerning, in particular, assets used as collateral and exposures. It took the view that that information was protected by that provision and that its disclosure would affect the ability of ECB staff to freely submit uncensored advice to the ECB’s decision-making bodies, thus limiting the ECB’s ‘space to think’, and also undermine the potential for an effective, informal and confidential exchange of views within the decision-making bodies. It concluded that it was in the public interest to protect internal consultations and deliberations as well as opinions given for internal use and added that there was no overriding public interest in disclosure of the redacted passages. It also pointed out that the conclusions of the internal consultations and deliberations had been disclosed to the applicant.

173 It should be noted in that regard that it is apparent from paragraph 169 above that the ECB clearly indicated in the express decision the exceptions on which it based its partial refusal to grant access to the proposals of 28 July and 1 August 2014, that is, the exceptions set out in the second and seventh indents of Article 4(1)(a), in the first indent of Article 4(2) and in Article 4(3) of Decision 2004/258.

174 Moreover, the Court finds that, contrary to what is claimed by the ECB, the explanations given in the express decision with regard to the exception provided for in Article 4(3) of Decision 2004/258 did not cover all the information redacted from the proposals of 28 July and 1 August 2014.

175 The express decision states that the undisclosed parts contain ‘inter alia’ information of a preliminary nature for internal use, as well as internal views and assessments. In that context, it should be noted that the decision on the initial application does not permit of any other conclusion either, because, as regards the proposal of 1 August 2014, the exception provided for in Article 4(3) of Decision 2004/258 is relied on only in respect of certain parts of the proposal and, as regards the proposal of 28 July 2014, no reference is made to that exception at all.

176 Similarly, with regard to the other exceptions on which the ECB based its partial refusal to disclose the proposals of 28 July and 1 August 2014, it is apparent from both the express decision and the ECB’s pleadings that those exceptions were not relied on in relation to all the undisclosed information.

177 In that regard, it should be noted that, in accordance with Article 4(5) of Decision 2004/258, if only parts of the requested document are covered by any of the exceptions referred to in that article, the remaining parts of the document are to be released. It is clear from the very wording of that provision that the ECB is required to consider whether it is appropriate to grant partial access to documents which are the subject of an application for access and to limit any refusal to information covered by the relevant exceptions referred to. The ECB must grant partial access if the aim pursued in refusing access to a document may be achieved where all that is required of that institution is to blank out the passages which might harm the public interest to be protected (see, by analogy, judgment of 7 October 2014, Schenker v Commission, T‑534/11, EU:T:2014:854, paragraph 112 and the case-law cited).

178 It should also be noted that, when assessing an application for access to documents which it holds, the ECB may take into account more than one of the grounds for refusal set out in Article 4 of Decision 2004/258 (see, by analogy, judgment of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 100 and the case-law cited).

179 It follows that, where the ECB grants, pursuant to Article 4(5) of Decision 2004/258, only partial access to the documents that are the subject of an application for access, confining its refusal to the information covered by one or more of the exceptions invoked, it is required to give reasons that will make it possible to understand to which passages redacted from the documents concerned the exceptions invoked relate and how disclosure of that information could undermine the interest protected by the exception relied on.

180 In the present case, it should be noted that, in the express decision, the ECB did not identify, in a clear and comprehensible manner, to which passages redacted from the proposals of 28 July and 1 August 2014 the exceptions invoked related. An explanation of that kind was particularly important because, in its confirmatory application, the applicant had complained to the ECB that its decision on the initial application was not supported by a statement of reasons of the requisite legal standard, it being understood that, whilst the context in which a decision is adopted may make the requirements to be satisfied by the institution concerned as regards the statement of reasons lighter, it may, conversely, also make them more stringent in certain circumstances (judgment of 6 April 2000, Kuijer v Council, T‑188/98, EU:T:2000:101, paragraph 45).

181 Accordingly, in the light, in particular, of the case-law cited in paragraphs 55 and 56 above, the reasons given in the express decision were not sufficient to enable the applicant to understand the grounds on which the ECB had refused to grant it access to the information redacted from the proposals of 28 July and 1 August 2014.

183 Admittedly, as is apparent from paragraphs 170 and 172 above, the express decision contains some explanations and details as regards the exceptions relied on by the ECB.

184 Nevertheless, contrary to what the ECB claims, the applicant was not in a position to understand with any degree of certainty, on the basis of the information disclosed, to which passages redacted from the proposals of 28 July and 1 August 2014 the exceptions invoked related.

185 As the ECB has indicated to the Court that more than one exception was relied on in relation to some of the redacted information, it is clear that, assuming that to be the case, that makes the burden the ECB seeks to impose on the applicant of ascertaining the exception the undisclosed information falls within all the more difficult. Moreover, some of the redacted passages are relatively long and the reasons given in support of the exceptions relied on are not sufficiently clear to substantiate the ECB’s argument that the applicant could grasp the type of information not disclosed in the parts that had been redacted and infer without any difficulty the exceptions applied for each such redaction.

186 Nor is it possible to reach any other conclusion on the basis of the decision on the initial application, even though, as regards the proposal of 28 July 2014, it identifies, without providing any reason, certain passages affected by three of the exceptions invoked. Those details relate to a more heavily redacted version of that proposal and refer neither to the introduction to that proposal nor to the exception provided for in Article 4(3) of Decision 2004/258. Furthermore, the explanations provided by the ECB before the Court differ, as regards some of the information redacted from the proposal of 28 July 2014, from what was stated in the decision on the initial application.

187 In that context, it should also be noted that, given the wide discretion enjoyed by the ECB as regards the exceptions laid down in the second and seventh indents of Article 4(1)(a) of Decision 2004/258 and the subsequent limited scope of the review conducted by the European Union judicature (see paragraph 90 above), the ECB’s compliance with its obligation to provide a statement of reasons in relation to those exceptions takes on even more fundamental importance (judgment of 4 June 2015, Versorgungswerk der Zahnärztekammer Schleswig-Holstein v ECB, T‑376/13, EU:T:2015:361, paragraphs 53 and 54). As those exceptions were relied on in the present case, there is reason to find fault with the ECB’s incomplete statement of reasons as regards its partial refusal to disclose the proposals of 28 July and 1 August 2014.

188 The ECB’s argument that the proposals of 28 July and 1 August 2014 are covered, subject to Article 4(5) of Decision 2004/258, by the exception provided for in Article 4(3) of that decision, and, therefore, the parts redacted from the proposals in question are protected under Article 4(3) as they form part of the content of the opinions of the Executive Board of the ECB, must also be rejected.

189 As explained in paragraph 174 above, the ECB relied on the exception laid down in Article 4(3) of Decision 2004/258 only in respect of certain non-specified passages in the proposals of 28 July and 1 August 2014.

190 Moreover, it is not apparent from the express decision that the reasons why the ECB refused to disclose the information redacted were based on the general assumption that the proposals of the Executive Board of the ECB are protected under Article 4(3) of Decision 2004/258.

191 The Court therefore upholds the first part of the fourth plea and, accordingly, annuls the express decision in so far as concerns the refusal to disclose the information redacted from the proposals of 28 July and 1 August 2014, without there being any need to consider the other parts of the fourth plea.

192 Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

193 In the present case, the applicant has been partially successful in its application for annulment of the express decision. On the other hand, it has been unsuccessful in its application for annulment of the implied decision. Accordingly, in the light of all the circumstances of the case, each party is to be ordered to bear its own costs.

1. Annuls the decision of the European Central Bank (ECB) of 1 April 2015 partially refusing to disclose certain documents relating to the ECB’s decision of 1 August 2014 concerning Banco Espírito Santo SA, in so far as it refuses to disclose the amount of credit indicated in the extracts of the minutes recording the decision of the Governing Council of the ECB of 28 July 2014 and the information redacted from the proposals of the Executive Board of the ECB of 28 July and 1 August 2014;

3. Orders Espírito Santo Financial (Portugal), SGPS, SA and the ECB to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Espirito Santo Financial (Portugal) v ECB (Access to documents - Banco Espírito Santo SA - Implied refusal to grant access - Judgment) [2018] EUECJ T-251/15 (26 April 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T25115.html Cite as: ECLI:EU:T:2018:234, EU:T:2018:234, [2018] EUECJ T-251/15

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