Case T‑798/17
Fabio De Masi
and
Yanis Varoufakis
v
European Central Bank
Judgment of the General Court (Second Chamber), 12March 2019
(Access to documents— Decision 2004/258/EC— Document entitled ‘Responses to questions concerning the interpretation of Article14.4 of the Protocol on the Statute of the ESCB and of the ECB’— Refusal to grant access— Exception concerning the protection of legal advice— Exception relating to the protection of documents for internal use— Overriding public interest)
1.EU institutions— Right of public access to documents— Decision 2004/258 of the European Central Bank— Exceptions to the right of access to documents— Strict interpretation and application
(Art. 15 TFEU; European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, recital4 and Art. 4)
(see paragraph17)
2.EU institutions— Right of public access to documents— Regulation No1049/2001— Exceptions to the right of access to documents— Protection of the decision-making process— Conditions— Concrete, actual and serious detriment to that process— Scope
(European Parliament and Council Regulation No1049/2001, Art. 4(3))
(see paragraphs27, 28)
3.EU institutions— Right of public access to documents— Decision 2004/258 of the European Central Bank— Exceptions to the right of access to documents— Protection of documents for internal use— Conditions— Document requested not related to a specific procedure— Irrelevant
(European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4(3), first subpara.)
(see paragraphs29-31, 46, 47, 51)
4.EU institutions— Right of public access to documents— Decision 2004/258 of the European Central Bank— Exceptions to the right of access to documents— Protection of documents for internal use— Protection of documents intended to bring information and support to the deliberations of the Governing Council— Included
(Protocol 4 annexed to EU and FEU Treaties, Arts 10.4 and 14.4; European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4(3), first subpara.)
(see paragraphs39-41)
5.EU institutions— Right of public access to documents— Decision 2004/258 of the European Central Bank— Exceptions to the right of access to documents— Refusal based on several exceptions— Lawfulness
(European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4(3))
(see paragraph44)
6.EU institutions— Right of public access to documents— Decision 2004/258 of the European Central Bank— Exceptions to the right of access to documents— Obligation to state reasons— Scope
(Art. 296, second para., TFEU; Decision 2004/258 of the European Central Bank, as amended by Decisions 2011/342 and 2015/529, Art. 4)
(see paragraphs53, 54, 56, 57)
7.EU institutions— Right of public access to documents— Regulation No1049/2001— Exceptions to the right of access to documents— Protection of documents intended for internal use— Overriding public interest justifying the disclosure of documents— Requirement that the institution should weigh the opposing interests
(European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4(3), first subpara.)
(see paragraphs64, 65)
8.EU institutions— Right of public access to documents— Regulation No1049/2001— Exceptions to the right of access to documents— Protection of documents for internal use— Overriding public interest justifying the disclosure of documents— Need to put forward particular considerations in relation to the case
(European Central Bank Decision 2004/258, as amended by Decisions 2011/342 and 2015/529, Art. 4(3), first subpara.)
(see paragraphs66, 70)
Résumé
In the case that gave rise to the judgment of 12March 2019, De Masi and Varoufakis v ECB (T‑798/17), the Court heard an action seeking annulment of the decision of the European Central Bank (ECB) refusing MrFabio de Masi and MrYanis Varoufakis access to the document entitled ‘Responses to the questions concerning the interpretation of Article14.4 of the Protocol on the Statute of the European Central Banks System and of the European Central Bank’. That document included the response from an external adviser to a legal consultation requested by the ECB concerning the powers held by the Governing Council under said Article14.4. The document examined in particular the prohibitions, restrictions or conditions that the Council can place upon the performance of functions outside the ESCB by the national central banks in so far as there is a risk that those functions may interfere with the objectives and tasks of the ESCB. The ECB refused to grant access to that document on the basis of, first, the exception provided for in the second indent of Article4(2) of Decision 2004/258,(1) concerning the protection of legal advice and, secondly, the exception provided for in the first subparagraph of Article4(3) of the same decision, concerning the protection of documents for internal use.
As regards the exception concerning the protection of documents for internal use, the Court noted differences between the wording of the first subparagraph of Article4(3) of Decision 2004/258 and that of Article4(3) of Regulation No1049/2001.(2) In that respect, the Court found that the application of the exception provided for in the first subparagraph of Article4(3) of Decision 2004/258 does not require it to be established that the decision-making process could be seriously undermined. In addition, the Court held that the public interest underlying that exception was to protect, first, a space for reflection within the ECB, in which the institution’s decision-making bodies may have a confidential exchange of views as part of their deliberations and preliminary consultations and, secondly, a space for a confidential exchange of views between the ECB and the national authorities concerned. The Court then found that the ECB was entitled to consider that the document at issue was a document for internal use within the meaning of the first subparagraph of Article4(3) of Decision 2005/258, in so far as it considered that that document was intended to provide information and support to the deliberations of the Governing Council within the scope of the competences conferred on it by Article14.4 of the Protocol on the Statute of the ESCB and of the ECB.
As regards the argument alleging that there is an overriding public interest in disclosure of the document at issue, the Court held that such an interest had not been established in this case. In any event, the Court noted that the interest in having access to the document, as a document which was supposedly preparatory to the agreement on emergency liquidity assistance, could not outweigh the public interest which underlies the exception provided for in the first subparagraph of Article4(3) of Decision 2004/258. Consequently, the ECB was fully entitled to base its refusal to grant access to the document at issue on the exception to the right of access provided for in the first subparagraph of Article4(3) of Decision 2004/258, concerning documents for internal use.
1Decision 2004/258/EC of the European Central Bank of 4March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L80, p.42), as amended by Decision 2011/342/EU of the European Central Bank of 9May 2011 (ECB/2011/6) (OJ 2011 L158, p.37) and Decision (EU) 2015/529 of the European Central Bank of 21January 2015 (ECB/2015/1) (OJ 2015 L84, p.64).
2Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).