Espirito Santo Financial Group v ECB (Documents relating to the ECB's decision of 1 August 2014 - Judgment) [2019] EUECJ T-730/16 (13 March 2019)

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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 — 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 documents intended for internal use — Obligation to state reasons)

Espírito Santo Financial Group SA, established in Luxembourg (Luxembourg), represented by R. Oliveira, S. Estima Martins and D. Duarte de Campos, lawyers,

European Central Bank (ECB), represented by F. von Lindeiner and S. Lambrinoc, acting as Agents, and by H.-G. Kamann, lawyer,

APPLICATION pursuant to Article 263 TFEU for annulment of the ECB’s decision of 31 August 2016 refusing in part to disclose certain documents relating to its decision of 1 August 2014 concerning Banco Espírito Santo SA,

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 17 May 2018,

1 The applicant, Espírito Santo Financial Group SA, is a company incorporated under Luxembourg law, which has been the subject of insolvency proceedings since 10 October 2014. It held shares, directly and indirectly, in the capital of 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 that situation, BES had recourse to Eurosystem credit operations and, from 17 July 2014, started to receive emergency liquidity assistance from 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 assistance 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’), the Governing Council decided, on the same day, to maintain BES’ 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 of 28 July 2014. That decision was recorded in minutes, which also referred to the amount of the credit in question.

5 Acting on a proposal from the Executive Board of the ECB of 1 August 2014 (‘the proposal of 1 August 2014’), the Governing Council decided, on the same day, inter alia, to suspend access by BES 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 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 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, 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 Fundo de Resolução (Portuguese Resolution Fund), along with the undertakings given by those authorities, constituted State aid compatible with the internal market under Article 107(3)(b) TFEU. According to those undertakings, the sale of Novo Banco was to be completed by August 2016 at the latest. On 21 December 2015, the Commission extended that deadline, the new date of which was kept confidential.

8 On 3 August 2014, 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 15 September 2015, Banco de Portugal decided to suspend the sales process relating to Novo Banco.

10 On 29 December 2015, Banco de Portugal approved a number of decisions supplementing the resolution measure relating to BES and made an adjustment to the assets, liabilities, off-balance-sheet items and assets under management transferred to Novo Banco.

11 On 15 January 2016, Banco de Portugal announced that the process for the sale of Novo Banco was to be resumed and, on 31 March 2016, the selling arrangements were published.

12 By letter of 7 April 2016, the applicant requested that the ECB grant access to the decision of 1 August 2014, and to ‘any other decisions and/or [any other] documents issued by any of the ECB bodies, either prior or subsequent to the [decision of 1 August 2014], as well as any communications exchanged with [Banco de] Portugal, which are in any way related to the [decision of 1 August 2014]’.

13 By letter of 10 June 2016, 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 of the minutes recording the decisions of 28 July and 1 August 2014 and to the proposals of 28 July and 1 August 2014.

14 By letter of 6 July 2016, the applicant sent a confirmatory application to the ECB, in which 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 the credit provided to BES, its branches and its subsidiaries through Eurosystem monetary policy instruments and the amount of the ceiling for emergency liquidity that could be granted to BES by Banco de Portugal. Moreover, with regard to the proposals of 28 July and 1 August 2014, the applicant considered in particular that the reasons given by the ECB in the decision on the initial application to justify the refusal to disclose parts of those proposals were too vague and general and requested broader access to those documents. 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’.

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

16 By letter of 31 August 2016 (‘the contested decision’), the ECB confirmed its refusal to disclose the amounts redacted from the extracts of the minutes recording the decisions of 28 July and 1 August 2014 and the passages deleted from the proposals of 28 July and 1 August 2014, pursuant to Article 4 of ECB Decision 2004/258/EC of 4 March 2004 on public access to [ECB] documents (OJ 2004 L 80, p. 42).

17 By application lodged at the Registry of the General Court on 13 October 2016, the applicant brought the present action.

19 On hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for in Article 89 of its Rules of Procedure, requested the parties to lodge certain documents and to answer certain questions in writing. The parties complied with those measures of organisation of procedure within the time allowed.

20 At the hearing on 17 May 2018, the parties presented oral argument and replied to oral questions put by the Court.

23 The application for annulment of the contested decision is based on six pleas in law.

24 The first two pleas relate to the amounts which were deleted from the extracts of the minutes recording the decisions of 28 July and 1 August 2014 sent to the applicant and allege, respectively, infringement of the obligation to state reasons and infringement of the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258. The four other pleas relate to the information redacted from the proposals of 28 July and 1 August 2014 provided to the applicant and allege, respectively, infringement of the obligation to state reasons, infringement of the second and seventh indents of Article 4(1)(a) of Decision 2004/258, infringement of the first indent of Article 4(2) of that decision and infringement of Article 4(3) of the decision.

25 First, it is appropriate to examine the arguments put forward by the applicant in connection with the first two pleas challenging the 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 two 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 pleas challenging the refusal to grant it greater access to the proposals of 28 July and 1 August 2014.

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

26 In its first plea, challenging the refusal to grant it access to the ceiling for the provision of emergency liquidity in question, the applicant maintains that the contested 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.

27 The applicant submits that the ECB put forward 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. It states that the contested decision does not indicate how disclosure of that ceiling, in 2016, could undermine the effectiveness of monetary policy and financial stability.

29 As a preliminary point, it should be noted, as the ECB explained in the contested 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 will interfere with the objectives and tasks of the ESCB.

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

31 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).

32 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).

33 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.

34 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). Decision 2004/258 was amended most recently by Decision (EU) 2015/529 of the ECB of 21 January 2015 (OJ 2015 L 84, p. 64).

35 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 laid down in that decision.

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

37 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 ECB Supervisory Board or other bodies established under Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ 2013 L 287, p. 63), 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.

38 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).

39 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).

40 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).

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

42 In the decision on the initial application, confirmed by the contested 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, the ECB Supervisory Board or other bodies established under Regulation No 1024/2013, second, the financial, monetary or economic policy of the European Union or of a Member State, and, third, the stability of the financial system in the European Union or in a Member State. According to the ECB, the refusal to disclose the ceiling for the provision of emergency liquidity in question was therefore justified under the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258.

43 Moreover, the ECB explained in greater detail, in the contested decision and the decision on the initial application, why it considered that disclosure of the ceiling for the provision of emergency liquidity in question might damage the interests protected.

44 In particular, the ECB indicated, in the decision on the initial application, that the decision of 1 August 2014 was recorded in the minutes of the Governing Council’s meeting of 1 August 2014 and that the ceiling for the provision of emergency liquidity in question was protected as confidential under Article 10.4 of the ESCB and ECB Statute and Article 4(1)(a) of Decision 2004/258. In the contested decision, the ECB stated that decisions adopted by the Governing Council are recorded in minutes setting out the outcome of the proceedings. As regards Article 10.4 of the ESCB and ECB Statute, the ECB stated that that provision established the principle that the proceedings of the Governing Council are confidential in order to ensure that its decision-making process is effective and to safeguard the independence of its members. It also indicated that that provision gave the Governing Council absolute discretion as to whether to make the outcome of its deliberations public. Moreover, it considers, in essence, that the objective pursued by Article 10.4 of ESCB and ECB Statute was set out, in Decision 2004/258, by the exception laid down in the first indent of Article 4(1)(a) thereof, as is apparent from recital 3 of that decision.

45 As regards the exceptions set out in the second and seventh indents of Article 4(1)(a) of Decision 2004/258, in the contested decision the ECB simply stated that disclosure of the ceiling for the provision of emergency liquidity in question would undermine, for the reasons given in the decision on the initial application, the effectiveness of monetary policy and financial stability.

46 In the decision on the initial application, first, the ECB expressed the view, in essence, that disclosure of ceilings for the provision of emergency liquidity could trigger an undesirable response from the market and that, in the light of the systemic relevance of the credit institution in question, as well as other considerations, such as the general situation in the banking sector during the period in question, such disclosure could threaten financial stability and, as a consequence, undermine the smooth implementation of monetary policy. It stated that even ex post disclosure of ceilings for the provision of emergency liquidity could have an adverse effect on its conduct in similar cases in the future. It claims that market operators would be able to infer from specific decisions concerning ceilings for the provision of emergency liquidity the way in which the Governing Council might act in similar situations in the future. Moreover, given the consequences of disclosure of the ceilings in question for financial stability, the ability of the Governing Council to oppose operations for the provision of emergency liquidity which would interfere with ESCB objectives and tasks would be diminished.

47 Second, it is apparent from the decision on the initial application that disclosure of the ceiling for the provision of emergency liquidity in question could affect the stability of Novo Banco and thus undermine the stability of the financial system as well as the process for the sale of that bank, which had been relaunched. The ECB also stated that Novo Banco was operating in still fragile market conditions and that it was of systemic relevance for the Portuguese economy.

48 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 request, are abundantly clear from the reasons given to the applicant.

49 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 its decision-making bodies, its Supervisory Board or other bodies established under Regulation No 1024/2013, 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. On the contrary, it also provided certain specific reasons in that regard.

50 In the light of the case-law cited in paragraphs 38 to 40 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.

51 In the first place, with regard to the exceptions set out in the second and seventh indents of Article 4(1)(a) of Decision 2004/258, the ECB explained, inter alia, that disclosure of ceilings for the provision of emergency liquidity might have specific negative effects on the stability of the financial system and, as a consequence, on the ECB’s conduct of monetary policy (see paragraph 46 above). Furthermore, it stated that disclosure of the ceiling for the provision of emergency liquidity in question would affect the stability of Novo Banco and, as a result, undermine the public interest as regards the stability of the financial system in Portugal (see paragraph 47 above).

52 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.

53 In the second place, with regard to the exception set out in the first indent of Article 4(1)(a) of Decision 2004/258, the Court finds that it is not possible to ascertain clearly, on the basis of the reasons given to the applicant, which are based, inter alia, on Article 10.4 of the ESCB and ECB Statute (see paragraph 44 above), whether the ECB is relying on the confidentiality of the proceedings of the Governing Council or that of the decisions taken by that body, to justify its refusal to disclose the ceiling for the provision of emergency liquidity in question.

54 Furthermore, and in any event, it must be concluded that the ECB simply put forward very generic considerations concerning the nature of the document, only part of which was disclosed to the applicant. In the light of the case-law cited in paragraphs 38 to 40 above, such reasons are insufficient.

55 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, in essence, to Article 10.4 of the ESCB and ECB Statute and to the first indent of Article 4(1)(a) of Decision 2004/258.

56 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).

57 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 ensure that its decision-making process is effective and to safeguard its independence, 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.

58 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.

59 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.

60 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, where an application is made for disclosure of such a decision, it must be examined in the light of the conditions laid down by the Governing Council in Decision 2004/258.

61 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, not the conduct of the proceedings as such.

62 Even if the ECB relied on the existence of a general presumption that disclosure of the minutes of meetings of the Governing Council would undermine the confidentiality of the proceedings of the ECB’s decision-making bodies as justification for the refusal to disclose the ceiling for the provision of emergency liquidity in question — as it stated, inter alia, at the hearing — it is sufficient to note that the purpose of the general presumptions upheld by the EU courts as regards certain categories of document is to allow the institution concerned to derogate from the requirement that there should be a specific individual examination of each document sought and to rely on general considerations applicable to certain categories of document (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 50, and of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116) and that the documents covered by those presumptions fall outside the obligation to disclose, in full or part, their content (see, to that effect, judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133, and of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 61).

63 Accordingly, given that, in the present case, the ECB partially disclosed to the applicant the extracts from the minutes indicating the ceiling for the provision of emergency liquidity in question and therefore, de facto, carried out an individual specific examination of the document which it had been requested to disclose, it was also required, in the light of the case-law cited in paragraphs 38 to 40 above, to provide specific justification as regards the exception set out in the first indent of Article 4(1)(a) of Decision 2004/258.

64 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.

65 With regard to the Court’s finding that adequate reasons were not 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 plea — may justify the refusal to disclose the ceiling for the provision of emergency liquidity in question.

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

66 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.

67 As a preliminary point, it should be noted that, in the decision on the initial application, to which the contested decision refers, the ECB developed two distinct lines of argument to justify its refusal to disclose the ceiling for the provision of emergency liquidity in question under the second and seventh indents of Article 4(1)(a) of Decision 2004/258.

68 First, the ECB stated, in essence, that disclosure of the ceiling for the provision of emergency liquidity in question could undermine the public interest as regards the stability of the financial system in Portugal (see paragraph 47 above). In particular, it maintained in that regard that disclosure of that amount could have a negative impact on the stability of Novo Banco and the process for the sale of that bank. The ECB also indicated that Novo Banco was operating in still fragile market conditions and that it was of systemic relevance for the Portuguese economy. Those arguments relate to the seventh indent of Article 4(1)(a) of Decision 2004/258.

69 Second, the ECB argues, in essence, that disclosure of ceilings for the provision of emergency liquidity could have a negative impact on its conduct of monetary policy in future cases (see paragraph 46 above). That argument relates to the second indent of Article 4(1)(a) of Decision 2004/258.

70 It is necessary to examine first of all whether the refusal to disclose the ceiling for the provision of emergency liquidity in question and, therefore, the partial rejection of the application for disclosure of the decision of 1 August 2014, are justified under the seventh indent of Article 4(1)(a) of Decision 2004/258.

71 The applicant disputes the claim that disclosure of the ceiling for the provision of emergency liquidity in question, which relates to BES, may affect the stability of Novo Banco and have the effects on Portugal claimed by the ECB, as market participants or potential investors have at their disposal much more recent, relevant and reliable financial information on Novo Banco. It states that, between the decisions of 28 July and 1 August 2014, on the one hand, and the contested decision, on the other, BES was the subject of a resolution procedure which involved the creation of Novo Banco, to which the BES assets deemed non-problematic were transferred. The applicant adds, in essence, that the economic situation of Novo Banco, an entity separate from BES, changed in the course of the two years during which it operated and that it is seeking disclosure of an historic figure from which it is not possible to draw any meaningful conclusions concerning the current situation of Novo Banco or the Portuguese financial market. The applicant also notes that, as early as 3 August 2014, Banco de Portugal had already disclosed the amount actually paid to BES in respect of emergency liquidity assistance and that the factual circumstances surrounding the resolution of BES had been made public. Moreover, it states that it did not ask for information on how the provision of emergency liquidity in question varied over time and that, as a consequence, disclosure of the data in question could not have effects on financial stability such as those claimed in the decision on the initial application.

73 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 area covered by the exception laid down in the seventh indent of Article 4(1)(a) of Decision 2004/258. The EU judicature’s review of legality in that regard must therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers (see, 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).

74 Furthermore, it is clear from the case-law cited in paragraph 39 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).

75 It is in the light of those principles that the Court must ascertain whether the arguments put forward by the applicant are such as to establish that the ECB made a manifest error of assessment in taking the view that disclosure of the ceiling for the provision of emergency liquidity in question might undermine the protection of the public interest as regards the stability of the financial system in Portugal.

76 As indicated in paragraphs 47 and 68 above, the ECB claimed that disclosure of the ceiling for the provision of emergency liquidity in question might have an adverse effect on the stability of Novo Banco and on the process for the sale of that bank and, ultimately, on the stability of the Portuguese financial system, in view of the systemic relevance of Novo Banco for the Portuguese economy and the vulnerability of the market environment. It stated, in general terms (see paragraph 46 above), that market operators would be able to infer from ceilings for the provision of emergency liquidity the liquidity position of a credit institution and trigger an undesirable response from the market. It added that, in the light of the systemic relevance of the credit institution in question and other considerations, such as the general situation in the banking sector at a given time, such disclosure could undermine financial stability.

77 The ECB therefore took the view, in essence, that disclosure of the figure in question might, first, give rise to speculation as to Novo Banco’s liquidity position and its financing needs and generate unwarranted funding pressure, and, second, have a negative impact on the process for the sale of that bank, thus giving rise to the risk that the public interest might be undermined as regards the stability of the financial system in Portugal.

78 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 for assessing 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).

79 In the present case, it should be observed that Novo Banco is a bank that was created as part of the procedure for the resolution of BES resulting from the latter’s 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 the latter was still ongoing when the contested decision was taken.

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

81 Moreover, it is apparent from the contested decision — and is not disputed by the applicant — that the process for the sale of Novo Banco was especially important for the stability of the financial system in Portugal. Against that background, it should be noted, as observed by the ECB in reply to a question put by the Court, that the conditions for the sale of Novo Banco were likely to have repercussions on Portugal’s public finances and on the Portuguese banking system. First, as is apparent from Decision C(2014) 5682 final, the Portuguese authorities granted credit to the Portuguese Resolution Fund, which subsequently injected capital into Novo Banco, and, second, the funds injected into Novo Banco were also to be repaid by means of contributions made by other Portuguese banks to the Portuguese Resolution Fund.

82 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 contested decision was adopted, to open the door to speculation by market participants as to Novo Banco’s liquidity position and its financing needs and thus 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 the stability of the financial system in Portugal.

84 First, as regards the argument that Novo Banco is a new entity whose financial position is very different from that of BES and that market operators have more up to date information on Novo Banco’s financial position, it should be noted that, as is apparent from Banco de Portugal’s decision 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.

85 Moreover, even if it were apparent from the information on its financial situation disclosed by Novo Banco that its liquidity position and financing needs were different from those of BES in July 2014, disclosure of the ceiling for the provision of emergency liquidity in question — information not available to market operators — could have had a negative impact on the perception of Novo Banco’s financial situation by those operators, 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 process for the sale of Novo Banco was still ongoing.

86 Admittedly, as the applicant has pointed out, approximately two years elapsed between the decision of 1 August 2014 and the contested decision. Nevertheless, in the absence of any other factors, that is not sufficient for the ceiling for the provision of emergency liquidity in question to be regarded as a historic figure with no possible bearing on the assessment of Novo Banco’s financial situation at the time the contested decision was adopted.

87 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.

88 Third, in so far as the applicant claims that it did not request information on how the ceiling for the provision of emergency liquidity in question varied over time and, as a consequence, disclosure of the information sought could not have effects such as those described in the decision on the initial application, that argument cannot call into question the reasons given by the ECB in the decision on the initial application.

89 In the paragraph referred to by the applicant, the ECB did not simply mention the effects on financial stability of the possibility for market operators of monitoring how the ceiling for the provision of emergency liquidity in question developed over time. The ECB also stated that market operators would be able to infer from ceilings for the provision of emergency liquidity the liquidity position of a credit institution, which could trigger an undesirable response on the market and have an adverse effect on financial stability. It is specifically in that context that the ECB adopted a position on the consequences of it being possible for market operators to monitor developments in ceilings for the provision of emergency liquidity over time.

90 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 seventh indent of Article 4(1)(a) of Decision 2004/258 were met.

91 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 its claim, in essence, that broader access should have been given to the figure 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 one or more exceptions, it should be noted, without there being any need to rule on the admissibility of the argument in question, that that provision does not require the ECB, where an application for access to documents has been addressed to it, 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).

92 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 exception provided for in the seventh indent of Article 4(1)(a) of Decision 2004/258.

93 It also follows that there is no need to adjudicate on the arguments based on the second indent of Article 4(1)(a) of Decision 2004/258. 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 seventh indent of Article 4(1)(a) of Decision 2004/258. Therefore, even if the complaints directed against the second indent of Article 4(1)(a) of that decision were well founded, they would not be such as to call into question the justification for refusing to disclose the figure in question.

94 The same applies with regard to the consequences of the failure to state adequate reasons in the contested decision established in paragraphs 53 to 63 above in connection with the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, as well as the applicant’s arguments alleging breach of that provision, raised in the second plea.

95 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 objections 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 contested decision does not provide adequate reasons and, 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.

96 As with the refusal to grant access to the ceiling for the provision of emergency liquidity in question, the applicant contends that, in the contested decision, the ECB set out only general considerations regarding the exceptions relied on in refusing access to the amount of credit in question. It states that the contested decision does not indicate how disclosure of that amount in 2016 could have undermined the effectiveness of monetary policy and financial stability.

98 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.

99 It should also be noted that it is in the light of the considerations set out in paragraphs 30 to 40 above that the Court must examine whether, in the present case, the reasons given in the contested decision were sufficient to justify the refusal to disclose the amount of credit in question.

100 In the contested decision, the ECB argued that disclosure of the amount of credit in question would undermine the effectiveness of monetary policy and financial stability for the reasons given in the decision on the initial application. Furthermore, with regard to decisions adopted by the Governing Council, in the contested decision it invoked the exception set out in the first indent of Article 4(1)(a) of Decision 2004/258.

101 Therefore, as established in connection with the ceiling for the provision of emergency liquidity in question, the ECB based its refusal to disclose the amount of credit in question on the exceptions laid down in the first, second and seventh indents of Article 4(1)(a) of Decision 2004/258.

102 As regards the reasons justifying its claim that disclosure of the amount in question would undermine the protection of the interests invoked, it should be noted that, with regard to the second indent of Article 4(1)(a) of Decision 2004/258, concerning the protection of the public interest as regards the financial, monetary or economic policy of the European Union or of a Member State, the ECB simply indicated in the decision on the initial application that disclosure of the amount of credit in question could have a significantly adverse effect on the operational activities of the Eurosystem, but did not provide any details as to how, and on what grounds, such disclosure might affect those activities.

103 In the defence, the ECB states, in essence, that if the amounts granted in Eurosystem credit operations were to be published, credit institutions might be deterred, having regard to the risks associated with the interpretation of that information by third parties, from participating in such operations, which could have detrimental effects on the money market, and that it would be more difficult, or even impossible, for the Eurosystem to conduct its monetary policy operations effectively.

104 It should be noted in that regard that that line of reasoning was put forward neither in the contested decision nor in the decision on the initial application and cannot be aired for the first time before the Court. As observed above, according to case-law, save in exceptional circumstances, the reasons for a decision have to appear in the actual body of the decision and cannot be explained for the first time ex post facto 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).

105 Moreover, in so far as the ECB maintains in the defence and the rejoinder that disclosure of the amount of credit in question could also have undermined the financial, monetary and economic policies of Portugal, as key stakeholder in the process for the sale of Novo Banco, it is not possible to infer such a line of argument, which is based on the exception set out in the second indent of Article 4(1)(a) of Decision 2004/258, from either the contested decision or the decision on the initial application.

106 In those circumstances, it is clear that the ECB did not provide the applicant with any explanation as to how disclosure of the amount of credit in question could actually and specifically undermine the interest protected by the exception set out in the second ident of Article 4(1)(a) of Decision 2004/258 and, therefore, failed to have regard to its duty to state reasons in that connection.

107 Next, as regards the exception set out in the seventh indent of Article 4(1)(a) of Decision 2004/258, concerning the protection of the public interest as regards the stability of the financial system in the European Union or in a Member State, it should be noted that, in the part of the decision on the initial application partially refusing access to extracts of the minutes recording the decision of 28 July 2014, no mention is made of that exception or of any considerations connected with financial stability.

108 Nevertheless, the ECB stated, in the context of the reasons given in the decision on the initial application concerning the refusal to grant the applicant access to the information which had been redacted from the proposals of 28 July and 1 August 2014, that disclosure of ‘the amount of overall credit provided by the central bank’ would open the door to speculation by market operators as to the liquidity position of Novo Banco, which was undergoing a sales process, and its financing needs. It also stated that disclosure of that amount would, as a consequence, entail the concrete risk of undermining the public interest as regards the stability of the financial system in Portugal, which is protected by the seventh indent of Article 4(1)(a) of Decision 2004/258. Moreover, in the contested decision, the ECB indicated, with regard to the proposals of 28 July and 1 August 2014, that any information concerning Novo Banco’s liquidity position, including information on the assets transferred by BES, could be prejudicial to the process for the sale of Novo Banco and, as that bank was of systemic relevance for Portugal and was operating in fragile market conditions, to the stability of the Portuguese financial system.

109 Accordingly, the ECB stated, to the requisite legal standard, the reasons why it refused to disclose the amount of credit in question, which was omitted from both the extracts of the minutes recording the decision of 28 July 2014 and the proposals of 28 July and 1 August 2014, in reliance on the exception set out in the seventh indent of Article 4(1)(a) of Decision 2004/258.

110 Lastly, with regard to the exception set out 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, the ECB Supervisory Board or other bodies established under Regulation No 1024/2013, the ECB stated, in the contested decision, that decisions adopted by the Governing Council are recorded in minutes which set out the outcome of the proceedings. As regards Article 10.4 of the ESCB and ECB Statute, the ECB stated that that provision establishes the principle that the proceedings of the Governing Council are confidential in order to ensure that its decision-making process is effective and to safeguard the independence of its members. It also indicated that that provision gave the Governing Council absolute discretion as to whether or not to make the outcome of its deliberations public. Furthermore, it took the view, in essence, that the objective of Article 10.4 of the ESCB and ECB Statute was set out, in Decision 2004/258, by the exception laid down in the first indent of Article 4(1)(a) thereof, as is apparent from recital 3 of that decision.

111 As those reasons are in essence the same as those relied on to justify the refusal to disclose the ceiling for the provision of emergency liquidity in question under the exception laid down in the first indent of Article 4(1)(a) of Decision 2004/258, it is clear, in the light of the case-law cited in paragraphs 38 to 40 above and the considerations set out in paragraphs 53 to 63 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 put forward. 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 the proceedings of the ECB’s decision-making bodies.

112 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 exception provided for in the seventh indent of Article 4(1)(a) of Decision 2004/258.

113 With regard to the Court’s finding that the ECB failed to have regard to its duty to state reasons with regard to the exceptions provided for in the first and second indents of Article 4(1)(a) of Decision 2004/258, it is necessary, before going on to determine the possible consequences of that failure, to consider whether the exception laid down in the seventh indent of Article 4(1)(a) of that decision, which is challenged by the applicant in the second plea on the basis that reliance on that exception is unfounded, is capable of justifying the refusal to disclose the amount of credit in question.

114 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 exception provided for in the seventh indent 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 stability of the financial system in the European Union or in a Member State, are vitiated by manifest errors of assessment.

115 As with its arguments concerning the refusal to disclose the ceiling for the provision of emergency liquidity in question, the applicant does not accept that disclosure of the amount of credit in question, which relates to BES, may affect the stability of Novo Banco and have the effects on Portugal alleged by the ECB, as market participants or potential investors have at their disposal more recent, relevant and reliable financial information on Novo Banco. It states that, between the decisions of 28 July and 1 August 2014, on the one hand, and the contested decision, on the other, BES was the subject of a resolution procedure which involved the creation of Novo Banco, to which the BES assets deemed non-problematic were transferred. The applicant adds, in essence, that the economic situation of Novo Banco, an entity separate from BES, changed in the course of the two years during which it operated and that the applicant is seeking disclosure of an historic figure from which it is not possible to draw any meaningful conclusions concerning the current situation of Novo Banco or the Portuguese financial market. It also notes that the factual circumstances surrounding the resolution of BES were known to the public.

117 The ECB contends that it enjoys a wide discretion in determining whether disclosure of documents relating to the fields covered by the exceptions referred to in Article 4(1)(a) of Decision 2004/258 will undermine the public interest protected. It also maintains that the applicant’s reasoning is based on incomplete facts. In the ECB’s view, Novo Banco, formally an entity separate from BES, essentially carries on the business of BES and only a limited part of the assets, liabilities and off-balance-sheet items of BES were carved out from the transfer to Novo Banco.

118 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 situation, 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 affected the stability of the bank, the process of its sale 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 stability of the financial system in Portugal, bearing in mind also the still vulnerable market environment and the systemic relevance of Novo Banco for the Portuguese economy.

119 Moreover, the ECB observes that Banco de Portugal, in its capacity as resolution authority, decided on 3 August 2014 to disclose the approximate amount of Eurosystem credit granted to BES in very specific circumstances and for its own reasons. It maintains that the effects of Banco de Portugal’s decision to make public that information cannot be compared to the effect of disclosure by the ECB of the exact amount of the credit extended through monetary policy instruments to individual credit institutions.

120 It is necessary to verify, in the light of the principles referred to in paragraphs 73 and 74 above, whether the ECB was entitled to refuse to disclose to the applicant the amount of credit in question on the basis of the seventh indent 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.

121 As indicated in paragraph 108 above, the ECB essentially took the view that disclosure of the amount of credit in question would entail a concrete risk of undermining the public interest as regards the stability of the financial system in Portugal, on the ground that it would open the door to speculation by market participants as to the liquidity position of Novo Banco, a bank of systemic relevance, and its financing needs, and could have a negative impact on its sale process.

122 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 also include temporary transfer operations for the provision of liquidity.

123 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 may be inferred from the information before the Court that the debt corresponding to that credit was transferred to Novo Banco.

124 Moreover, as stated in paragraphs 79 to 81 above, Novo Banco is a bank that was created as part of the procedure for the resolution of BES resulting from its financial difficulties, and the process for the sale of that bank, which was still ongoing when the contested decision was adopted, was of particular importance for the stability of the financial system in Portugal. 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 contested decision was adopted, it was conducting its business in fragile market conditions in Portugal.

125 In the light of those circumstances and the case-law cited in paragraph 78 above, disclosure by the ECB of the amount of credit in question might therefore have been used, even at the time the contested decision was adopted, by market participants to evaluate Novo Banco’s financial position.

126 However, in a case such as the present, it was not reasonably foreseeable that disclosure of that amount, at the time the contested 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.

127 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).

128 In the present case, 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 under 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.

129 Admittedly, as the ECB indicated in its written pleadings, 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.

130 However, that fact cannot alter the conclusion that, at the time the contested decision was taken, the approximate amount of the credit in question had already been made public (see, to that effect, judgment of 26 April 2018, Espírito Santo Financial (Portugal) v ECB, T‑251/15, not published, under appeal, EU:T:2018:234, paragraphs 143 and 144) and had been a matter of public record for approximately two years.

132 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 it had no means of determining whether Banco de Portugal’s decision to disclose the approximate amount of credit granted to BES under the Eurosystem was lawful, 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 under the Eurosystem or which required the prior consultation of the ECB in that regard.

133 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 contested decision was adopted, been made public.

134 Furthermore, in so far as the ECB claims that the effects of disclosure by Banco de Portugal cannot be compared with the effect 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 protecting the stability of the financial system of Portugal and, as a consequence, the public interest which, in justifying the refusal to disclose the amount of the credit in question, the ECB claims must be protected.

135 Moreover, the ECB has not argued that disclosure of the approximate amount of the credit granted to BES under the Eurosystem by Banco de Portugal in August 2014, that is, two years before the adoption of the contested decision, undermined the stability of the financial system in Portugal.

136 In those circumstances, the ECB cannot claim that disclosure by it of the amount of credit in question at the time the contested decision was adopted could have given rise to speculation as to Novo Banco’s financial situation and have had a negative impact on its sale process, as well as undermining, as a consequence, the public interest as regards the stability of the financial system in Portugal. The ECB should have taken account of the fact that, at the time the contested decision was taken, the approximate amount of the credit granted to BES under the Eurosystem had already been in the public domain for more than two years, 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 Novo Banco.

137 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 seventh indent of Article 4(1)(a) of Decision 2004/258.

Conclusion to be drawn from the refusal to disclose the amount of credit in question

138 In the light of all the foregoing considerations concerning the refusal to disclose the amount of credit in question, it must be concluded that the contested decision is not supported by a statement of reasons of the requisite legal standard as regards the exceptions provided for in the first and second indents 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 exception relied on, namely that laid down in the seventh indent of Article 4(1)(a) of that decision. Accordingly, the contested 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.

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

139 As mentioned in paragraph 24 above, the third, fourth, fifth and sixth pleas concern the information that was redacted from the proposals of 28 July and 1 August 2014 as provided to the applicant and allege, respectively, infringement of: (i) the duty to state reasons; (ii) the second and seventh indents of Article 4(1)(a) of Decision 2004/258; (iii) the first indent of Article 4(2) of that decision; and (iv) of Article 4(3) of the decision.

140 It is appropriate to examine first of all the third plea, which is divided into five parts and formally alleges only breach of the duty to state reasons.

141 In the first part of the third plea, which it is appropriate to examine first, the applicant submits, in essence, that the contested decision is vitiated by an inadequate statement of reasons, in so far as the ECB based the contested decision on vague grounds and did not give specific reasons in relation to each passage redacted from the proposals of 28 July and 1 August 2014. The applicant maintains that it 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 argues, inter alia, 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 contested decision.

143 It maintains that the reasoning for each of the redacted sections and in respect of each of the exceptions it relied on may be easily ascertained from a reading of the contested decision in conjunction with the decision on the initial application and the sections of the proposals of 28 July and 1 August 2014 that were not disclosed. It states that, in the contested decision, it listed the abstract categories of information contained in the redacted parts of the proposals in question. It adds that it redacted parts of the documents concerned in such a way that the applicant should have been able to understand the type of information that was not disclosed in the redacted sections and to infer without difficulty the exceptions applied in respect of each redacted item.

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

145 Moreover, the ECB claims 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 is intended to protect Executive Board proposals as documents containing opinions for internal use in connection with 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 contested decision.

146 As a preliminary point, it should be noted that it is in the light of the considerations set out in paragraphs 38 to 40 above that the arguments raised by the applicant in the first part of the third plea must be examined.

147 It should also be noted that, by the contested decision, the ECB confirmed its refusal to disclose the passages that had been redacted from the proposals of 28 July and 1 August 2014 (see paragraph 16 above).

148 In the contested decision, the ECB indicated the abstract categories of information contained in the redacted parts of the proposals at issue and stated that those parts, first, refer to internal procedures directly connected with the operational implementation of monetary policy within the Eurosystem in that specific case, second, contain information concerning the liquidity position of the ‘new institution’ and its financing needs with regard to BES, and, third, contain, inter alia, information of a preliminary nature for internal use received in the context of internal consultations between the ECB and Banco de Portugal, as well as internal observations and assessments concerning, inter alia, eligible assets and those actually used as collateral in Eurosystem credit operations.

149 Moreover, the ECB stated that disclosure of the redacted parts of the proposals of 28 July and 1 August 2014 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, in essence, the protection of documents containing opinions for internal use (Article 4(3) of Decision 2004/258).

150 In the decision on the initial application and the contested decision, the ECB also provided a number of clarifications concerning the exceptions relied on.

151 With regard to the interests protected under the second indent of Article 4(1)(a) of Decision 2004/258, first, the ECB stated, in the decision on the initial application, that the 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 relating to eligible counterparties functions and stated that the Governing Council may, to ensure prudent risk management, apply a discretionary measure on the grounds of prudence when it considers, for instance, that a counterparty is no longer financially sound. It added that such measures were implemented, on the basis of the principle of decentralisation, by the NCB concerned, namely Banco de Portugal in this instance. Moreover, the ECB indicated that the single monetary policy calls for harmonised counterparty eligibility criteria, including the criterion of financial soundness, and that ECB Guideline (EU) 2015/510 of 19 December 2014 on the implementation of the Eurosystem monetary policy framework (OJ 2015 L 91, p. 3), which replaced ECB Guideline 2011/187/EU of 20 September 2011 on monetary policy instruments and procedures of the Eurosystem (OJ 2011 L 331, p. 1), now contains more detailed provisions concerning the notion of financial soundness and the types of discretionary measure. Next, it stated that the redacted parts of the proposals of 28 July and 1 August 2014 which refer to internal procedures complementing Guideline 2015/510 and, before that, Guideline 2011/187, could not be disclosed as they relate directly to the intra-Eurosystem operational implementation of monetary policy and public disclosure of those parts could jeopardise the effectiveness of the internal operational activities of the Eurosystem.

152 With regard to the interests protected by the seventh indent of Article 4(1)(a) and the first indent of Article 4(2) of Decision 2004/258, the ECB expressed the view, in the decision on the initial application, that disclosure of the ‘amount of overall credit provided by the central bank’ would open the door to speculation by the market participants as to the liquidity position of Novo Banco, which was undergoing a sales process, and its financing needs, therefore giving rise to the concrete risk of undermining not only the public interest as regards the stability of the financial system in Portugal but also Novo Banco’s commercial interests. The ECB stated that it had not identified a public interest that would justify disclosure of that information 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.

153 In the contested decision, the ECB claimed that the information concerning BES could not be regarded as historic. It stated that any information regarding the liquidity position of Novo Banco, BES’s successor, including the assets transferred by BES, could jeopardise the process for the sale of Novo Banco and, as the latter was of systemic relevance for Portugal and operated in fragile market conditions, also affect the stability of the financial system in Portugal. It also stated, without providing further clarification in that regard, that some of the redacted parts of the proposals in question contained information relating to the exposure of other financial institutions to the BES group.

154 With regard to the exception provided for by Article 4(3) of Decision 2004/258, the ECB indicated in the decision on the initial application that the undisclosed parts of the Executive Board’s proposals contain, inter alia, information of a preliminary nature for internal use, received in the context 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 also considered that disclosure of the redacted parts of the documents requested would adversely affect the ability to freely submit uncensored advice to its decision-making bodies and the potential for an effective, informal and confidential exchange of views within the decision-making bodies, thus limiting the ECB’s ‘space to think’. It stated that it could not identify an overriding public interest justifying disclosure of the passages in question. That assessment was, essentially, repeated in the contested decision.

155 It should be noted in that regard that it is apparent from paragraph 149 above that the ECB clearly indicated 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.

156 Moreover, the Court finds that, contrary to what is claimed by the ECB, the explanations given to the applicant 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.

157 It is apparent from both the contested decision and the decision on the initial application that the undisclosed parts contain ‘inter alia’ information of a preliminary nature for internal use, as well as internal views and assessments.

158 The wording used by the ECB in a paragraph of the contested decision in response to an argument made by the applicant concerning disclosure of the ‘conclusions of discussions which led to the proposals for decisions submitted to the Governing Council’ cannot alter that conclusion.

159 Admittedly, that paragraph is drafted more broadly and refers, inter alia, to the nature of the proposals of the Executive Board and, in general terms, to the redacted parts of the documents requested. Nevertheless, given the context in which those observations were made, the findings in paragraph 157 above and the ECB’s specific, individual examination of those documents, to which it draws particular attention, the Court finds that the applicant was not in a position to understand that the ECB was relying on Article 4(3) of Decision 2004/258 in connection with all the redacted data or that it had based its decision on a possible general presumption which permitted it to derogate from the obligation to carry out a specific, individual examination of each document requested and to rely on general considerations applicable to a particular type of document.

160 Accordingly, the Court rejects the ECB’s argument that it was not required to provide more detailed explanations as to why the redacted parts of the proposals in question were also covered by exceptions other than those set out in Article 4(3) of Decision 2004/258.

161 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 explanations provided to the applicant and the ECB’s pleadings that those exceptions were not put forward in relation to all the undisclosed information.

162 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 necessary to grant partial access to documents which it has been asked to disclose and to limit any refusal to information covered by the relevant exceptions. 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 the 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).

163 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).

164 It follows that, where the ECB grants, pursuant to Article 4(5) of Decision 2004/258, only partial access to the documents which it has been asked to disclose, 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.

165 In the present case the ECB did not explain to the applicant, 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 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 lighter as regards the statement of reasons, 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).

166 Accordingly, in the light, in particular, of the case-law cited in paragraphs 39 and 40 above, the reasons given in the contested decision, interpreted in the light of those given in the decision on the initial application, 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.

168 Admittedly, as is apparent from paragraphs 147 to 154 above, the contested decision and the decision on the initial application provide certain explanations and clarifications as regards the exceptions relied on by the ECB and categorise the information redacted in an abstract manner.

169 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.

170 Some of the redacted passages are relatively long and the reasons given in support of the exceptions relied, as well as the categorisation of the redacted information, 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. Moreover, the ECB’s own view of the exceptions applied to each redacted item, which it set out in the form of a table in response to measures of organisation of procedure adopted by the Court, reinforce the conclusion in paragraph 169 above. Indeed, in that table the ECB also refers to the exception provided for in the first indent of Article 4(1)(a) of Decision 2004/258, which is not mentioned anywhere in the contested decision in connection with the proposals of 28 July and 1 August 2014. Furthermore, the ECB maintains, notwithstanding what is clearly apparent from the decision on the initial application (see paragraph 152 above), that the exception set out in the first indent of Article 4(2) of Decision 2004/258 was applied to many more passages than those which referred to the ‘amount of overall credit provided by the central bank’. Contrary to what appears to be the case from the contested decision and the decision on the initial application (see paragraphs 157 to 159 above), the ECB also maintains that Article 4(3) of Decision 2004/258 was invoked in connection with all the data redacted.

171 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 should be noted that, assuming this 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.

172 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 that may be conducted by the EU courts, the ECB’s compliance with its obligation to provide an adequate 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.

173 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 that, therefore, the parts redacted from the proposals in question are protected under Article 4(3) must also be rejected.

174 As explained in paragraph 157 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.

175 Moreover, it is not unequivocally clear from the contested decision that the reasons why the ECB refused to disclose the information redacted were based on the existence of a general assumption that the proposals of its Executive Board are protected under Article 4(3) of Decision 2004/258.

176 In any event, as the ECB gave partial disclosure to the applicant of the proposals of 28 July and 1 August 2014 and, as it therefore de facto carried out a specific, individual examination of those documents, it cannot, for the reasons given in paragraphs 62 and 63 above, justify the partial refusal to grant access to those documents on the basis of the claim that there is a general presumption in relation to the type of document in question.

177 The Court therefore upholds the first part of the third plea and, accordingly, annuls the contested 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 third plea or the fourth, fifth and sixth pleas.

178 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. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

179 In the present case, the applicant has been partially successful in its application for annulment of the contested 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 31 August 2016 partially refusing to disclose certain documents relating to its decision of 1 August 2014 concerning Banco Espírito Santo SA, in so far as it refused 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 Group 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 Group v ECB (Documents relating to the ECB's decision of 1 August 2014 - Judgment) [2019] EUECJ T-730/16 (13 March 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/T73016.html Cite as: [2019] EUECJ T-730/16, ECLI:EU:T:2019:161, EU:T:2019:161

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